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Man who slept through his own trial loses appeal

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A man who was sleeping on his couch while his criminal civil rights violation trial continued without him lost his appeal Monday of the conviction that led to a one-year sentence at the Middlesex County jail.

Brendan T. Zammuto had been charged with a criminal civil rights violation after he allegedly used a racial epithet and a baseball bat during a confrontation that began when the car Zammuto was driving nearly hit a man riding his scooter, the Massachusetts Appeals Court said.

He was convicted in a one-day trial in 2011 after he failed to show up for the afternoon session without explanation and could not be located by his defense attorney, the court said.


"When the trial judge inquired about his absence [the next day], the defendant reported that he 'fell asleep on the couch,' " Appeals Court Judge C. Jeffrey Kinder wrote in a decision released Monday.

Zammuto argued he was entitled to a new trial because he lost his right to take the stand in his own defense when the judge ordered the trial to proceed without him. He also argued that the judge did not investigate whether he was absent for good cause as is required by law.

The court disagreed.

"The defendant has not claimed, much less shown, that a more vigorous effort to find him would have been successful, or that the reason for his absence from trial was anything but voluntary,'' Judge Kinder wrote for a unanimous five-judge panel of the court.

He added, "The defendant's explanation the following day confirmed that he was at fault. While the judge's implicit finding that the defendant's absence was voluntary was based on scant evidence at the time, there is no indication that it was incorrect. ... There was no substantial risk of a miscarriage of justice.''


Zammuto was sentenced to serve one year in the Middlesex House of Correction as a result of his conviction for the civil rights charge and his conviction on a charge of assault and battery with a dangerous weapon, the baseball bat, records show.

John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe.