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14-P-1334                                              Appeals Court

              COMMONWEALTH     vs.   BRENDAN T. ZAMMUTO.


                             No. 14-P-1334.

     Middlesex.      December 17, 2015. - February 22, 2016.

  Present:   Kafker, C.J., Cypher, Vuono, Carhart, & Kinder, JJ.


Practice, Criminal, Presence of defendant, Instructions to jury,
     Assistance of counsel. Jurisdiction, Civil rights.
     District Court, Jurisdiction. Civil Rights, Availability
     of remedy.



     Complaint received and sworn to in the Malden Division of
the District Court Department on September 2, 2011.

    The case was tried before Antoinette M. Leoney, J.


     James J. Cipoletta for the defendant.
     Christina Lucci, Assistant District Attorney, for the
Commonwealth.


    KINDER, J.    Following a jury trial in District Court, the

defendant was convicted of assault and battery by means of a

dangerous weapon, G. L. c. 265, § 15A; and a civil rights

violation, G. L. c. 265, § 37.       On appeal, he contends (1) he

was denied a fair trial when, after he defaulted, the trial
                                                                     2


proceeded in his absence, (2) the judge erred in failing to

instruct the jury regarding his failure to testify, (3) the

District Court lacked jurisdiction over the civil rights charge,

(4) the motion for a required finding of not guilty on the civil

rights charge should have been allowed; and (5) trial counsel

was ineffective.    We affirm.

     Background.   We summarize the trial evidence as follows.

As John Mastromarino stopped his scooter at an intersection with

a four-way stop, he observed a motor vehicle "blow through" the

stop sign.    He followed the vehicle and caught up to it at the

next intersection.    He left his scooter at the side of the road,

confronted the occupants, and yelled, "Bro, you almost just

killed me."   The defendant and the four other occupants got out

of the vehicle.    The defendant, armed with a baseball bat, swung

it at Mastromarino several times, calling him a "fucking

nigger."   One swing connected with Mastromarino's forearm.

Thereafter, a motorcycle driver who was following the

defendant's vehicle removed his helmet and struck Mastromarino

in the head with it, causing him to fall to the ground.1     The

defendant and the others reentered the vehicle and left the

scene.




     1
       There is no evidence that the motorcycle driver was
apprehended or prosecuted.
                                                                    3


     Mastromarino observed the vehicle license plate number and

reported it to the police.   Through the registry of motor

vehicles and further investigation, police identified the

defendant as a possible operator of the vehicle.    Mastromarino

then identified the defendant's photograph in an array prepared

by the police and, ultimately, identified him at trial as the

person who assaulted him with a baseball bat.

     The defendant was in court for the entire morning session

of the first day of trial, which included Mastromarino's

testimony.   When court reconvened after the lunch recess at 2:00

P.M., the defendant was not present.   The trial judge gave

defense counsel time to attempt to locate the defendant.

Defense counsel reported that, after several telephone calls, he

was unsuccessful in locating the defendant.2    At 2:30 P.M., the

trial judge explained that she intended to continue with the

trial pursuant to rule 18 of the Massachusetts Rules of Criminal

Procedure, and defense counsel did not object.     See

Mass.R.Crim.P. 18, 378 Mass. 887 (1979).   The judge denied the

defendant's motion for required findings of not guilty, and the

defendant rested without presenting evidence.    The defendant


     2
       We note that the trial transcript is silent regarding the
judge affording defense counsel time to locate the defendant,
the efforts to locate the defendant, and counsel's report to the
judge. After the case was argued here, the trial judge allowed
an unopposed motion to correct the record to include the
additional events.
                                                                      4


appeared the following morning as the jury continued their

deliberations.    When the trial judge inquired about his absence

the day before, the defendant reported that he "fell asleep on

the couch."3

     Discussion.   1.   Trial in absentia.   The defendant argues

that when he failed to appear after lunch on the first day of

trial, the judge should have conducted an investigation to

determine if there was good cause for his absence.    Failure to

conduct this investigation, according to the defendant, deprived

him of a fair trial.    While the judge did not follow the

protocol we have recommended, we are not persuaded, in the

circumstances of this case, that the defendant did not receive a

fair trial.

     "If a defendant is present at the beginning of a trial and

thereafter absents himself without cause or without leave of

court, the trial may proceed to a conclusion in all respects

except the imposition of sentence as though the defendant were

still present."    Mass.R.Crim.P. 18(a)(1), 378 Mass. 887 (1979).

When a defendant does not appear midtrial, the trial judge is to

"determine whether the trial should proceed in the defendant's

absence or whether a mistrial should be declared."     Commonwealth

v. Muckle, 59 Mass. App. Ct. 631, 639 (2003).    Specifically, the

     3
       The judge's inquiry on the second day of trial and the
defendant's response also were added as corrections to the
record allowed by the trial judge without objection.
                                                                       5


judge must determine whether the defendant's absence is without

cause and voluntary.      Ibid.   "This judicial determination, in

turn, requires that there be time allotted for some measure of

inquiry and investigation into the reasons for the defendant's

absence and the results of the efforts to locate the defendant."

Ibid.   "To this end, the judge should grant a recess of such

duration as the judge deems appropriate to allow for

investigation."   Ibid.    The preferred practice is that a voir

dire hearing be held regarding the results of the investigation

into the reason for the defendant's failure to appear.       Id. at

639-640.   Following the hearing, the judge should make a finding

whether the defendant's absence is without cause and voluntary.

Id. at 640.

     Here, the judge did allow defense counsel time to try to

locate the defendant, but did not hold a hearing or make

findings regarding the reason for the defendant's absence.

Because there was no objection at trial, we review whether the

failure to complete the Muckle protocol created a substantial

risk of a miscarriage of justice.       See Commonwealth v. Alphas,

430 Mass. 8, 13 (1999).

     The better practice would have been to hold a hearing and

to make findings whether the defendant's absence was without

cause and voluntary.      In the circumstances, however, we conclude

that the error does not constitute grounds to reverse the
                                                                     6


judgments.    The defendant has not claimed, much less shown, that

a more vigorous effort to find him would have been successful,

or that the reason for his absence from trial was anything but

voluntary.    See Commonwealth v. Carey, 55 Mass. App. Ct. 908,

908 (2002).    Indeed, the defendant's explanation the following

day confirmed that he was at fault.    While the judge's implicit

finding that the defendant's absence was voluntary was based on

scant evidence at the time, there is no indication that it was

incorrect.    See ibid.   Cf. Robinson v. Commonwealth, 445 Mass.

280, 289 (2005); Commonwealth v. Mora, 82 Mass. App. Ct. 575,

580-581 (2012).

     Here, where the judge gave two cautionary instructions

about the defendant's absence, one at the time court reconvened

and again in the final charge,4 and where the prosecutor made no

reference to the defendant's absence in closing, there was no

substantial risk of a miscarriage of justice regarding the

manner in which the judge handled the defendant's absence.

     4
       In her final charge, the trial judge instructed the jury
as follows: "Now, members of the jury, when you came back from
the lunch recess I indicated to you that the defendant was not
present for the rest of the trial, and that the trial would
continue with the defendant's attorney and with the defendant
being represented by his attorney. I remind you again you are
not to speculate about the reasons for the defendant's absence.
You are not to draw any inferences against the defendant from
his absence since there are many reasons why a defendant may not
be present for the full trial. It should not influence your
verdict in any way. Your responsibility now is to decide the
charges against the defendant based solely on the evidence
before you."
                                                                        7


    2.    Instruction on defendant not testifying.     The defendant

claims that the trial judge should have instructed the jury

regarding the defendant's failure to testify, even though trial

counsel did not request the instruction or object to its

omission.   According to the defendant, the judge's failure to

instruct the jury compounded the failure to follow the Muckle

protocol, creating a substantial risk of miscarriage of justice.

We disagree.   Absent a request by defense counsel, the judge was

not required to give the instruction.    See Commonwealth v.

Powers, 9 Mass. App. Ct. 771, 774 (1980).     Here the jury were

instructed that the defendant was presumed innocent, the

Commonwealth had the burden of proof, the defendant had no

obligation to present any evidence, and the jury should draw no

adverse inference against the defendant due to his absence.        In

these circumstances, there was no error.

    3.    Civil rights charge.   a.   Jurisdiction.   For the first

time on appeal, the defendant argues that the District Court

lacked jurisdiction over the civil rights charge because the

Commonwealth prosecuted the case under the felony portion of the

civil rights statute rather than the misdemeanor portion.      Such

a jurisdictional claim can be raised at any time, including on

appeal.   Tate, petitioner, 417 Mass. 226, 230 (1994).

    Under G. L. c. 218, § 26, as appearing in St. 1992, c. 379,

§ 138, the District Court has jurisdiction over "all felonies
                                                                    8


punishable by imprisonment in the state prison for not more than

five years."   The punishment clause of the civil rights statute,

G. L. c. 265, § 37, inserted by St. 1979, c. 801, § 2, provides:

    "Any person convicted of violating this provision shall be
    fined not more than one thousand dollars or imprisoned not
    more than one year or both; and if bodily injury results,
    shall be punished by a fine of not more than ten thousand
    dollars or by imprisonment for not more than ten years, or
    both" (emphasis supplied).

Thus, the statute allows for the prosecution of both a

misdemeanor and a felony, depending on whether bodily injury is

alleged.   We previously have determined that the language

regarding bodily injury describes a felony and, if charged in

the complaint, is outside the jurisdiction of the District

Court.   See Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392,

395-396 (1996).   Jurisdiction depends, therefore, on whether the

Commonwealth alleged that the civil rights violation resulted in

bodily injury, rather than on the evidence offered by the

Commonwealth at trial.   See id. at 396.   Simply put, if the

complaint charged the defendant with causing the victim bodily

injury, the District Court would not have had jurisdiction.

    The analysis is straightforward.   The criminal complaint

here charged that the defendant "did by force or threat of

force, wilfully injure, intimidate or interfere with, or oppress

or threaten John Mastromarino in the free exercise or enjoyment

of a right or privilege secured to such person by the
                                                                     9


Constitution or laws of this Commonwealth or by the Constitution

or laws of the United States, in violation of G. L. c. 265,

§ 37."    However, there was no allegation that the charged

conduct resulted in bodily injury.    Moreover, the charging

document included a specific reference to the maximum penalty:

"PENALTY:   imprisonment not more than 1 year; or not more than

$1000; or both," and the defendant was sentenced to the

misdemeanor penalty of one year in the house of correction.

Because a misdemeanor was charged, the jury were instructed on

the elements of the misdemeanor, and the defendant received a

misdemeanor sentence, the District Court had jurisdiction.

    b.    Sufficiency of evidence.   The defendant also argues

that the trial judge should have allowed his motion for a

required finding of not guilty on this charge because the

Commonwealth presented insufficient evidence that he violated

Mastromarino's civil right to personal security.    Again, we

disagree.    When reviewing a motion for a required finding of not

guilty, we review the evidence in the light most favorable to

the Commonwealth to determine if any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.    Commonwealth v. Latimore, 378 Mass. 671, 677

(1979).    "The inferences drawn by the jury from the evidence

'need only be reasonable and possible and need not be necessary
                                                                      10


or inescapable.'"     Commonwealth v. Kelly, 470 Mass. 682, 693

(2015) (citation omitted).

       Here, the Commonwealth presented evidence that the

defendant approached Mastromarino calling him a "nigger," and

repeated the racial slur as he hit Mastromarino with a baseball

bat.    The defendant argues that Mastromarino forfeited his right

to personal security when he approached the defendant's vehicle

to pick a fight.     However, we have stated that the "deprivation

of civil rights contemplated by G. L. c. 265, § 37, does not

have to be the predominant purpose of the defendant's acts."

Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 124 (1987).

Even if there was evidence that the defendant acted in

retaliation, the jury may still find that the defendant violated

Mastromarino's civil rights.      See ibid.   The specific intent

requirement of the statute does not require the Commonwealth "to

prove that the defendant had a particular evil or wicked

purpose."     Id. at 125.   It is enough to show that the defendant

"engaged in activity which interferes with rights which as . . .

matter of law are clearly and specifically protected by [the

statute]."     Ibid., quoting from United States v. Ehrlichman, 546

F.2d 910, 928 (D.C. Cir. 1976), cert. denied, 429 U.S. 1120

(1977).     The evidence in this case met that standard.

       4.   Ineffective assistance.   Finally, the defendant claims

that trial counsel provided ineffective assistance by failing
                                                                   11


(1) to request a continuance to ascertain the defendant's

whereabouts after the lunch recess, (2) to object to the

commencement of trial without the judge following the Muckle

protocol, (3) to request a continuance prior to resting, and (4)

to request jury instructions regarding the defendant's failure

to testify.   "[T]he preferred method for raising a claim of

ineffective assistance of counsel is through a motion for a new

trial."   Commonwealth v. Zinser, 446 Mass. 807, 810 (2006).

There is a narrow exception in cases where "the factual basis of

the claim appears indisputably on the trial record."   Id. at

811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct.

339, 344 (1994).   The bases of the defendant's claims here do

not appear indisputably on the record.   The record is silent as

to trial counsel's strategy or any explanation for his actions.

See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).

Accordingly, we decline to address this claim.

                                    Judgments affirmed.
