360 Mass. at 694 Waiver of right to be present at trial11 citing casesvoluntary absence from trial constitutes a waiver of right to be present
- Robinson v. Commonwealth, 837 N.E.2d 241 (Mass. 2005).published “by consent or at times even by misconduct”
- Commonwealth v. Harrison, 712 N.E.2d 74 (Mass. 1999).publishedSee Taylor v. United States, 414 U.S. 17, 20 (1973) (per curiam) (defendant’s voluntary absence from trial constitutes waiver); Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971) (same).
- Commonwealth v. L'Abbe, 656 N.E.2d 1242 (Mass. 1995).publishedCommonwealth v. Flemmi, 360 Mass. 693, 694 (1971), quoting Snyder v. Massachusetts, 291 U.S. 97, 106 (1934).
- Commonwealth v. White, 643 N.E.2d 1053 (Mass. App. Ct. 1994).publishedCo-op. 1979), or at any time while in custody, compare Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971), we do not think the defendant’s comments, in the circumstances, amounted to a waiver.
- Commonwealth v. Rios, 588 N.E.2d 6 (Mass. 1992).published(voluntary absence from trial constitutes a waiver of right to be present)
- Commonwealth v. Francis, 374 N.E.2d 1207 (Mass. 1978).publishedIn Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971), we held that where “a defendant, who is not in custody, voluntarily ab *758 sents himself from the trial after it has begun in his presence,” he voluntarily waives his right to be prese…
- Commonwealth v. Clark, 369 N.E.2d 468 (Mass. App. Ct. 1977).publishedCommonwealth v. Flemmi, 360 Mass. 693, 694 (1971).
- Doe v. Sex Offender Registry Bd., 951 N.E.2d 344 (Mass. 2011).publishedSee Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971).
- Commonwealth v. Rivera, 691 N.E.2d 972 (Mass. App. Ct. 1998).publishedSee Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971).
- Commonwealth v. Kane, 472 N.E.2d 1343 (Mass. App. Ct. 1984).published See Commonwealth v. Flemmi, 360 Mass. 693, 694-695 (1971). 6 The problem here is comparable to that where, at ordinary trial, with the defendant present, evidence is offered of his initial flight from the police, or the like, as some proof…
Show 1 more citing case
- Commonwealth v. Edwards, 830 N.E.2d 158 (Mass. 2005).publishedSee, e.g., Commonwealth v. Flemmi, 360 Mass. 693, 694 (1971), quoting Illinois v. Allen, 397 U.S. 337, 342-343 (1970).
360 Mass. at 693 Tauro, C.J. The defendant was tried, convicted and sentenced on indictments charging assault with intent to murder, assault by means of a dangerous weapon and…1 citing case
- Commonwealth v. Carey, 772 N.E.2d 597 (Mass. App. Ct. 2002).publishedSee, e.g., Commonwealth v. Flemmi, 360 Mass. 693, 693-694 (1971); Commonwealth v. Kane, 19 Mass. App. Ct. 129, 135 (1984).
Other citing cases
- Commonwealth v. Nwachukwu, 837 N.E.2d 301 (Mass. App. Ct. 2005).published
- Commonwealth v. Elizondo, 701 N.E.2d 325 (Mass. 1998).published
- Maldonado, 304 N.E.2d 419 (Mass. 1973).published
The defendant was tried, convicted and sentenced on indictments charging assault with intent to murder, assault by means of a dangerous weapon and unlawful carrying of a firearm.
The trial on all the indictments began March 13, 1970, and on March 18, 1970, motions for directed verdicts were denied. On Friday, March 20, 1970, the defendant, without explanation, did not appear in court. The court recessed the case to the following Monday, March 23, at which time a hearing was held and police officers testified as to their unsuccessful efforts to locate the defendant. The judge defaulted the defendant after finding that he had voluntarily absented himself and the trial continued without him. On March 23 jury verdicts of guilty on all in[*694] dictments were returned. The defendant was apprehended on October 28, 1970. A hearing was held on December 1, 1970, on the defendant’s motion to remove the defaults and in the alternative for a new trial. The motion was denied and sentences were imposed. [1]
The issue raised on appeal is whether the defendant was denied his “rights of confrontation and [d]ue [p]rocess.” There was no error. The general rule is that a trial for a felony cannot proceed without the presence of the accused. Commonwealth v. McCarthy, 163 Mass. 458. Commonwealth v. Ventura, 294 Mass. 113. Lewis v. United States, 146 U.S. 370, 372. G. L. c. 278, § 6. An exception to the rule occurs when a defendant, who is not in custody, voluntarily absents himself from the trial after it has begun in his presence. This operates as a w aiver of the right to be present at the trial, and the court may proceed without the defendant. Commonwealth v. McCarthy, supra. See Commonwealth v. Snyder, 282 Mass. 401, affd. sub nom. Snyder v. Massachusetts, 291 U. S. 97, 105-106. Diaz v. United States, 223 U. S. 442, 455. Wright, Federal Practice and Procedure, § 723. See Rule 43 of the Federal Rules of Criminal Procedure, 18 U. S. C. Appendix (1970). The Supreme Court of the United States in Illinois v. Allen, 397 U. S. 337, 342-343, stated that the Sixth Amendment right to confrontation does not mean that a criminal trial can never proceed without the defendant. It stated, quoting from Snyder v. Massachusetts, supra, at 106, “No doubt the privilege [)of personally confronting witnesses] may be lost by consent or at times even by misconduct.”
The defendant was afforded a hearing where the question of the voluntariness of his absence was examined. The[*695] trial judge refused to believe the defendant's story. No more was required. United States v. Partlow, 428 F. 2d 814 (2d Cir.). See Cureton v. United States, 396 F. 2d 671, 676 (D. C. Cir.). Gaither v. United States, 413 F. 2d 1061, 1080-1081 (D. C. Cir.).
Judgments affirmed.
At the hearing on the motions the defendant testified that he left his home on March 20 with the intention of going to court but was approached by two men whom he believed to be police officers and was told that his case had been continued. He then rode with them and was let out of the car in Holyoke at approximately 11 a.m. He further testified that he was in fear of his life and was afraid to go to the court room for fear of being killed. The defendant failed to inform the police or the district attorney’s office upon his apprehension of the alleged kidnapping nor did he communicate with his attorney or the court about the alleged incident.