Commonwealth v. Campbell (Lawyers Weekly No. 11-037-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 10‑P‑1087 Appeals Court COMMONWEALTH vs. ALVIN CAMPBELL. No. 10‑P‑1087. Middlesex. December 5, 2012. ‑ February 28, 2013. Present: Cypher, Brown, & Cohen, JJ. Due Process of Law, Presence of defendant in courtroom. Constitutional Law, Waiver of constitutional rights. Practice, Criminal, Motion to suppress, Presence of defendant, Waiver. Indictments found and returned in the Superior Court Department on July 26 and September 29, 2005. A pretrial motion to suppress evidence was heard by Ralph D. Gants, J., and a motion for reconsideration was also heard by him; the cases were tried before Diane M. Kottmyer, J., and a motion for a new trial was considered by her. Derege B. Demissie for the defendant. Anne Pogue Donohue, Assistant District Attorney (Marian T. Ryan, Assistant District Attorney, with her) for the Commonwealth. CYPHER, J. The defendant, Alvin Campbell, appeals from his convictions by a jury on indictments charging accessory after the fact (armed robbery), accessory after the fact (larceny over $ 250), and carrying a firearm without a license. In a separate proceeding on the next day, the jury also convicted the defendant of being an armed career criminal. The defendant filed a motion for a new trial, alleging ineffective assistance of counsel and deprivation of his right to be present at a critical stage of the proceedings, specifically at a hearing on the motion to suppress. The new trial motion was denied without a hearing. The defendant brings this consolidated appeal from his convictions and the denial of his new trial motion. Although the defendant raises several issues on appeal, we need only address his claim that he was deprived of his right to be present at the hearing on the motion to suppress, which is a critical stage of the proceedings. Procedural background. A codefendant’s counsel in this case had filed a timely motion to suppress and, at the time set for the hearing, his client was transported from the jail for the hearing. The defendant, however, had not been transported from the jail because his counsel had neglected to file a motion to suppress. The motion judge instructed the clerk to telephone defense counsel for the defendant, and defense counsel appeared in court before the judge began the hearing on the motion to suppress. The judge asked […]