COMMONWEALTH vs. DARCY S. LOWE.

The defendant appeals from the denial of his motion seeking release from unlawful confinement, under Mass. R. Crim P. 30 (a), 378 Mass. 900 (1979), following his conviction of murder in the second degree. [Note 1] The verdict and the denial of a postconviction motion for a required finding of not guilty or for a new trial were affirmed by this court in Commonwealth v. Lowe, 391 Mass. 97, cert. denied, 469 U.S. 840 (1984). The denial of the defendant's second motion for postconviction relief was affirmed in Commonwealth v. Lowe, 25 Mass. App. Ct. 1112 (1988).

On appeal, the defendant argues that (1) there was error in the charge to the jury regarding manslaughter and evidence of flight as consciousness of guilt; (2) he was denied due process and a fair trial because the judge allowed an investigating police officer, who testified at trial, to sit at the prosecutor's table; (3) he was denied effective assistance of counsel because there was no objection to the police witness's sitting at counsel table; and (4) the trial judge erred by treating the defendant's rule 30 (a) motion as a motion for a new trial under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). We conclude that the issues regarding the consciousness of guilt instruction and the presence of a police witness at counsel table are waived because they were available to the defendant but not raised in either his direct appeal or his first two motions for postconviction relief. [Note 2] The defendant

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is required to raise all known and available claims of error at the earliest possible time. See Mass. R. Crim. P. 30 (c) (2), 378 Mass. 900 (1979); Commonwealth v. Pisa, 384 Mass. 362, 365-367 (1981). The claim regarding the sufficiency of the charge on manslaughter was addressed and resolved in the defendant's direct appeal. Even if it were a new issue, it also is barred by the defendant's failure to raise the issue at the earliest possible time. See Commonwealth v. Grace, 381 Mass. 753, 759-760 (1980). Nor was counsel's failure to object to a police witness being seated at the prosecutor's table "serious incompetency" amounting to deprivation of the defendant's constitutional right to effective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See also Commonwealth v. Salcedo, ante 346, 350, 351 (1989). Since we find no merit in any of the issues raised in this appeal, we need not consider whether the judge erred by treating the rule 30 (a) motion as a motion under rule 30 (b) for a new trial. [Note 3] We note, however, that a review under rule 30 (b) "permits examination of the claimed errors to determine whether the defendant was deprived of any constitutionally protected rights" (such as those alleged in the defendant's motion under rule 30 [a]). Commonwealth v. Cowie, 404 Mass. 119, 123 (1989). The denial of the defendant's motion seeking release from unlawful confinement is affirmed.

So ordered.