December 17, 2015
Complaint received and sworn to in the Malden Division of the
District Court Department on September 2, 2011.
case was tried before Antoinette M. Leoney, J.
J. Cipoletta for the defendant.
Christina Lucci, Assistant District Attorney, for the
Kafker, C.J., Cypher, Vuono, Carhart, & Kinder, JJ.
N.E.3d 75] 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 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.
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. The defendant and the others
reentered the vehicle and left the scene.
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.
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 [46 N.E.3d 76] in locating the
defendant. At 2:30 p.m., the trial judge
explained that ...