Commonwealth vs. Vincent J. Flemmi

Massachusetts Supreme Judicial Court1971-12-31

360 Mass. 693

Summary · law.co

Holding. The appellate court affirmed the conviction and sentences, holding that a defendant who is not in custody and voluntarily absents himself from trial after it has begun waives his right to be present and his right to confrontation, and the trial may proceed without him.

Vincent Flemmi was tried and convicted on charges of assault with intent to murder, assault by means of a dangerous weapon, and unlawful carrying of a firearm. On the third day of trial, Flemmi failed to appear in court without explanation. After the judge held a hearing where police testified about unsuccessful efforts to locate him, the court defaulted Flemmi and proceeded with the trial in his absence, resulting in guilty verdicts on all counts. Flemmi was apprehended months later and moved to remove the defaults and obtain a new trial, but the motion was denied.

On appeal, Flemmi contended that proceeding without his presence violated his constitutional rights to confront witnesses and due process. The court rejected this argument, applying the established exception to the rule against trying a defendant in absentia: when a defendant who is not in custody voluntarily absents himself after trial has begun, he waives his right to be present. The trial court had conducted a hearing to determine whether Flemmi's absence was voluntary, heard his claim that he had been taken away by men he believed to be police officers, and rejected his account as not credible. This factual finding was sufficient to support the default and continuation of trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether trial in defendant's absence violates the right to confrontation under the Sixth Amendment
Whether a voluntary absence by a defendant constitutes a waiver of the right to be present
Whether a trial court's factual finding that a defendant voluntarily absented himself supports proceeding in his absence

Procedural posture

The defendant appealed his conviction and sentence following denial of his motions to remove the defaults and for a new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

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 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 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.

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 trial judge refused to believe the defendants 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.