Commonwealth v. Lovett

Massachusetts Appeals Court

Commonwealth v. Lovett

394 N.E.2d 1002, 8 Mass. App. Ct. 910

DecidedOctober 3, 1979

StatusPublished

This text of 394 N.E.2d 1002 (Commonwealth v. Lovett) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Lovett, 394 N.E.2d 1002, 8 Mass. App. Ct. 910 (Mass. Ct. App. 1979).

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Opinion

This is an appeal from the denial of the defendant’s motion for a new trial.

The case was submitted on briefs. Michael L. Altman for the defendant. John J. Conte, District Attorney, & Daniel F. Toomey, Assistant District Attorney, for the Commonwealth.

As the defendant’s conviction has been affirmed by the Supreme Judicial Court, see Commonwealth v. Lovett, 374 Mass. 394 (1978), the single issue before this court is whether the judge properly denied that motion. There was no error.

The only contention based on an assignment of error now argued on appeal (see Commonwealth v. Watkins, 375 Mass. 472, 474 n.2 [1978]) is that the trial judge was biased and prejudiced against the defendant’s trial counsel. At the hearing on the motion, the defendant, who was the only witness, testified and introduced in evidence various portions of the trial transcript.

Upon careful review of the entire record we are unable to discern any bias on the part of the trial judge toward the defendant or his counsel. Viewing all the evidence presented at the motion hearing in a light most favorable to the defendant, which we are not required to do, the most that can be said is that the record reflects "the difficulties he [the judge] has encountered in scheduling trials for the numerous defendants represented by [the defendant’s trial] lawyer and how that situation [might cause] ... delay in the trial of the present case.” Commonwealth v. Dabrieo, 370 Mass. 728, 739 (1976). The fact that approximately four years prior to the instant trial the judge had restricted the appearances of the defendant’s trial counsel in criminal matters in order to assure his presence in then pending cases does not advance the defendant’s cause, as such action is often necessary, and "is certainly within [the judge’s] power.” Id. See also Commonwealth v. Festo, 251 Mass. 275, 277 (1925).

In short there was no showing at the motion hearing that the judge’s actions or rulings during trial prejudiced the defendant in any legal sense or were in any way improper.

Order denying motion for new trial affirmed.

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This is an appeal from the denial of the defendant’s motion for a new trial.

The case was submitted on briefs. Michael L. Altman for the defendant. John J. Conte, District Attorney, & Daniel F. Toomey, Assistant District Attorney, for the Commonwealth.

As the defendant’s conviction has been affirmed by the Supreme Judicial Court, see Commonwealth v. Lovett, 374 Mass. 394 (1978), the single issue before this court is whether the judge properly denied that motion. There was no error.

The only contention based on an assignment of error now argued on appeal (see Commonwealth v. Watkins, 375 Mass. 472, 474 n.2 [1978]) is that the trial judge was biased and prejudiced against the defendant’s trial counsel. At the hearing on the motion, the defendant, who was the only witness, testified and introduced in evidence various portions of the trial transcript.

Upon careful review of the entire record we are unable to discern any bias on the part of the trial judge toward the defendant or his counsel. Viewing all the evidence presented at the motion hearing in a light most favorable to the defendant, which we are not required to do, the most that can be said is that the record reflects "the difficulties he [the judge] has encountered in scheduling trials for the numerous defendants represented by [the defendant’s trial] lawyer and how that situation [might cause] ... delay in the trial of the present case.” Commonwealth v. Dabrieo, 370 Mass. 728, 739 (1976). The fact that approximately four years prior to the instant trial the judge had restricted the appearances of the defendant’s trial counsel in criminal matters in order to assure his presence in then pending cases does not advance the defendant’s cause, as such action is often necessary, and "is certainly within [the judge’s] power.” Id. See also Commonwealth v. Festo, 251 Mass. 275, 277 (1925).

In short there was no showing at the motion hearing that the judge’s actions or rulings during trial prejudiced the defendant in any legal sense or were in any way improper.

Order denying motion for new trial affirmed.

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394 N.E.2d 1002, 8 Mass. App. Ct. 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lovett-massappct-1979.

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