Commonwealth v. Zammuto (Lawyers Weekly No. 11-018-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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. 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 […]