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Massachusetts Appeals Court Affirms Convictions of Man who Missed his Trial to Take a Nap

The Massachusetts Appeals Court today affirmed the convictions of a man involved in a violent road rage incident who missed part of his trial because he fell asleep on his couch.  The name of the case is Commonwealth v. Zammuto.

The defendant was driving a car that nearly collided with a man who was riding his scooter on a public road.  The man on the scooter followed the defendant’s car and confronted the occupants, yelling that the defendant had almost killed him.  The defendant and four other people got out of the car and confronted the man.  The defendant swung a baseball bat at the victim several times while calling him a “fucking nigger.”  The defendant struck the victim in the arm with the bat before he fled the scene in the car.  The victim was able to provide the car’s license plate number to the police, who in turn identified the defendant as being the possible driver.  The victim identified the defendant in a photo array created by the police and subsequently identified him at trial.  The defendant was convicted of a civil rights violation along with assault and battery with a dangerous weapon and was sentenced to serve one year in jail.

The defendant made several arguments on appeal, but the most interesting addressed his attendance at the trial.  The defendant attended the first morning of the trial (when the victim testified) but did not return after the lunch recess.  The judge allowed the defendant’s attorney time to try to find him and the attorney tried several times to call him.  When the defendant did not resurface within half an hour, the trial resumed without him.  The next morning, the defendant showed up and the judge asked where he had been the previous afternoon.  The defendant told her he had fallen asleep on his couch.

The defendant argued the judge had committed error by continuing the trial without his presence.  The Appeals Court has previously announced a protocol to be followed by trial courts when a defendant disappears in the middle of a trial.  The trial judge is supposed to grant a recess to allow the attorneys to attempt to determine whether the defendant’s absence is voluntary or involuntary, with the hope that the defendant will be located and brought back to court.  The judge should then hold a hearing, outside the presence of the jury, to consider the steps taken by counsel in trying to find the defendant.  If the defendant’s absence is voluntary and without cause, the judge needs to determine whether to declare a mistrial or to continue the case without the defendant’s presence.  If the trial is continued, the judge should tell the jurors they may not speculate about the cause of the defendant’s absence and may not draw adverse inferences against the defendant.  In this case, the trial judge failed to follow the proper protocol and did not hold a hearing to determine whether the defendant’s absence was voluntary.  However, the Appeals Court ruled it would not have made a difference given the defendant’s admission that he missed court because he had fallen asleep at his house.  Because the defendant’s mistake caused his absence, he was not entitled to have a mistrial declared.  Accordingly, the Appeals Court affirmed his convictions.

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