Robinson v. Com.

• Decision Date: 14 November 2005
• Citation: 445 Mass. 280,837 N.E.2d 241
• Parties: Lonnie ROBINSON v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

837 N.E.2d 241

445 Mass. 280

Lonnie ROBINSON v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 6, 2005.

Decided November 14, 2005.

COPYRIGHT MATERIAL OMITTED

James S. Murphy, Boston, for the defendant.

Carolyn A. Burbine, Assistant District Attorney, Brockton, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

After his indictment for trafficking in cocaine, Lonnie Robinson (defendant) filed a motion to suppress evidence in the Superior Court. Because the defendant failed to appear at the scheduled suppression hearing, a Superior Court judge found him in default and deemed the motion waived. After the defendant returned to court one year later and his default was removed, he filed a motion to reinstate his motion to suppress. That motion was denied. The defendant petitioned a single justice of this court for relief pursuant to G.L. c. 211, § 3, seeking reinstatement of the motion to suppress. The single justice reserved and reported the matter to the full court, describing the petition as presenting the following questions:

"1.) Does the defendant's unexcused absence at a scheduled motion to suppress hearing of which he/she has notice constitute an automatic waiver of the motion?

"2.) If the answer to no. 1 is `no,' does the judge have discretion to treat the unexcused absence as a waiver? If so, what are the criteria on which the judge should base the decision?

"3.) Did the judge act within his discretion in determining that the defendant had waived his motion in this case?"

We conclude that the answer to the first question is no: there is no automatic waiver of the suppression motion in these circumstances. The answer to the second question, however, is a qualified yes: by his unexcused absence from the scheduled suppression hearing, the defendant may waive his right to be present at the hearing, but his absence does not waive the motion itself. Consequently, we hold that the judge erred in determining that the defendant's failure to appear at the suppression hearing constituted a waiver of the motion; however, it would have been within the judge's discretion to find that the defendant had waived his right to be present at the suppression hearing and to conduct the hearing without him.

1. Background. We summarize the allegations made in the defendant's motion to suppress and supporting memoranda. On April 14, 2001, detectives with the Brockton police department went to a Holiday Inn in Brockton to execute an arrest warrant for Tremmel S. Jackson, also known as David Simpson. Hotel records indicated that a David Simpson had rented two rooms. When the police knocked on the door of one of these rooms, the defendant answered. The officers searched the room, and after failing to locate David Simpson, they escorted the defendant to the room next door and questioned him about Simpson's whereabouts. During this time, one of the detectives found a bag of cocaine in a pair of pants in the first room. The defendant later was arrested and indicted for trafficking in cocaine.

On June 11, 2002, the defendant filed a motion to suppress the physical evidence seized during the search and any statements he made to the police, claiming that the arrest warrant was not valid because (1) it was not signed; (2) the police exceeded the permissible scope of the arrest warrant in their search of the defendant's hotel room; and (3) police questioning of the defendant was not permissible as field interrogation and observation. The hearing on this motion was continued by agreement on several occasions. On March 27, 2003, the defendant appeared in court, prepared to proceed with the motion, but the hearing was continued until May 14, 2003, at the Commonwealth's request. On that date, however, the defendant failed to appear.¹ The motion judge found the defendant in default and, over defense counsel's objection, held that the defendant had waived his right to a hearing on the motion by his absence.

More than one year later, the defendant was apprehended and returned to court. Defense counsel filed a motion to reinstate the suppression motion, alleging only that the defendant had a viable motion to suppress. The motion to reinstate was denied. The record does not indicate whether the motion to reinstate was supported by an affidavit setting forth an explanation for the defendant's absence. The defendant then sought relief pursuant to G.L. c. 211, § 3, arguing that the Superior Court judge had abused his discretion in failing to reinstate the motion to suppress because the defendant's default did not prejudice the Commonwealth and because the motion raised significant constitutional issues.

2. Discussion. a. Waiver of right to suppression hearing. The defendant argues that his failure to appear at the suppression hearing could not constitute an automatic waiver of the motion, but he concedes that the judge would have the discretion to deem the motion waived by his absence. The defendant's primary contention is that, based on the strength of the constitutional claims for suppression, the judge in this case abused his discretion by deeming the motion waived. The Commonwealth agrees that an unexcused absence does not constitute an automatic waiver of a suppression motion and that such waiver would be discretionary. The Commonwealth claims that the judge acted within his discretion in ruling that, by failing to appear, the defendant waived his motion to suppress.

Two distinct issues of waiver are implicated by the defendant's failure to appear at the scheduled suppression hearing: (1) waiver of the defendant's motion to suppress and (2) waiver of the defendant's right to be present at the hearing on the motion. Thus, in resolving the questions reserved and reported by the single justice, each of these issues of waiver must be addressed.

Neither the defendant nor the Commonwealth contends that the defendant's failure to appear at the scheduled suppression hearing is an automatic waiver of the motion. They cite no authority that precisely addresses this question, and we have found no such authority. Although this court has held that a defendant may automatically waive certain constitutional or procedural rights by failing to appear, such waiver has been recognized only in limited situations, typically regarding appellate rights. See Commonwealth v. Francis, 374 Mass. 750, 757-758, 374 N.E.2d 1207 (1978) (defendant, who appealed to Superior Court for trial de novo after conviction in District Court, waived right to jury trial by failing to appear on scheduled trial date by operation of former G.L. c. 278, § 24); Commonwealth v. Rezendes, 353 Mass. 228, 228-229, 230 N.E.2d 647 (1967) (defendant, who "left the Commonwealth" after filing appeal, waived appellate rights not permitted to "fugitive from justice").

Both parties rely on Commonwealth v. McVicker, 20 Mass.App.Ct. 713, 482 N.E.2d 830 (1985), for the proposition that a judge has discretion to deem a motion to suppress waived by the defendant's absence from the hearing. See id. at 717, 482 N.E.2d 830 ("a defendant may by his conduct waive or forfeit a motion filed for his benefit"). In that case the defendant sought a jury trial after conviction by a judge of the Boston Municipal Court under the former "trial de novo" system.² Id. at 713, 482 N.E.2d 830. He filed a motion to suppress evidence at the jury trial but failed to appear at the scheduled hearing. Id. at 714, 482 N.E.2d 830. The Appeals Court held that absence from the suppression hearing was not a "solid default" that would waive the right to a jury trial under the de novo system; rather, the court concluded that the defendant's absence from the hearing allowed the judge to determine that the motion to suppress had been waived, and schedule the case for trial. Id. at 716-717, 482 N.E.2d 830.

Although the McVicker case did involve the waiver of a motion to suppress by the defendant's absence, we do not find that case controlling here.³ The McVicker case involved a statutory scheme that expressly authorized the waiver of the right to trial if a defendant failed to appear. See id. at 715-716, 482 N.E.2d 830. Implicitly, under such a two-tiered system, a judge also could determine that a defendant had waived the right to present a pretrial motion by failing to appear at its scheduled hearing. Under our current one-trial system, however, even a "solid default" at a scheduled trial date does not constitute a waiver of the defendant's right to a jury trial. Cf. Mass. R.Crim. P. 18(a)(1), 378 Mass. 887 (1979) (defendant may waive right to be present at trial — not right to trial itself — by voluntary absence after trial begins); Mass. R.Crim. P. 19(a), 378 Mass. 888 (1979) (defendant must waive right to jury trial in writing and with judge's approval).

We have found no other statutes or appellate cases that give a judge discretion to find a suppression motion waived by the defendant's absence. In fact, the few State appellate courts that have confronted this issue have concluded that a defendant's failure to appear at a suppression hearing does not constitute a waiver of the motion to suppress. See People v. Dashner, 77 P.3d 787, 791 (Colo.Ct.App.2003) (defendant's absence from suppression hearing "does not empower the trial court to refuse to hold a hearing on the motion or address the issues on the merits"); State v. Canty, 278 N.J.Super. 80, 84, 650 A.2d 391 (1994) (when defendant fails to appear at suppression hearing, "the court may either postpone the hearing ... or proceed in absentia. The court should not dismiss the motion with prejudice"); People v. Whitehead, 143 A.D.2d 1066, 1067, 533 N.Y.S.2d 753 (N.Y.1988) ("although a defendant may waive or forfeit his right to be present he does not as a consequence of his actions waive his right to a hearing"); State v. Desirey, 99 Or.App. 283, 285, 782 P.2d 429 (1989) (when...