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September 19, 1977


Suffolk. Indictment found and returned in the Superior Court on October 8, 1975. A question of law was reported by Beaudreau, J., to the Appeals Court. The Supreme Judicial Court on its own initiative, ordered direct review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.


Practice, Criminal, Interlocutory appeal or report. Evidence, Previous testimony of unavailable witnesses, Tape recording.

The opinion of the court was delivered by: Quirico

A report of a criminal case under G. L. c. 278, § 30A, should indicate that entertaining the case for interlocutory appellate review will contribute more to its reasonably prompt Disposition than it will to a delay in Disposition. [400]

The mere fact that there was no legislative basis for making a tape recording of the testimony of a witness at the probable cause hearing of a complaint against the defendant did not render the recording inadmissible at his subsequent trial on an indictment. [400-401]

The defendant is awaiting trial on an indictment charging him with the crime of robbery. The case is before us on an interlocutory report by a Judge of the Superior Court under G. L. c. 278, § 30A, of an evidentiary question which may arise at the trial of the indictment. The report was initially entered in the Appeals Court, as required by G. L. c. 211A, § 10, and it was thereafter transferred to this court for direct appellate review pursuant to the same statute.

The facts giving rise to the report were stipulated to be the following: "On September 10, 1975, there was a probable cause hearing on Boston Municipal Court Complaint No. 1974 (75) which charges this defendant with the unarmed robbery of Rita Miniutti. The hearing was before Doerfer, J." Mr. Vaden was represented by counsel, Attorney C. Lanzilli and his hearing was held together with that of a co-defendant Randall DesChamps. At the outset of the hearing all the witnesses rose and were severally sworn. The alleged victim, Mrs. Rita Miniutti, who was among those severally sworn, testified and was cross-examined by counsel for Mr. Vaden. Probable cause was found and in due course the above numbered indictment was returned in this matter. Subsequently the alleged victim died of causes, unrelated to the alleged robbery. She had been in ill health for some time. A tape recording device was operating in the court room during the probable cause hearing. According to the records of the Boston Municipal Court Clerk's Office, Master Tape no. 186 was the tape which recorded that hearing. That tape has remained in the custody of the Clerk except for two occasions when it was sent out for making a cassette tape copy. The second occasion in June, 1976, resulted in the sealed tape cassette copy with accompanying certificate which is an exhibit in this matter.

"For the purpose of reporting a question on law in this case and for that purpose only, the above facts are stipulated."

The interlocutory report by the Judge is in the following form: "There is no legislative basis for tape recording of testimony in district courts. Therefore, this case is somewhat unlike the circumstances appearing in [ Commonwealth ] v. Mustone, 353 Mass. 490 [1968], and [ Commonwealth ] v. Glassman, 253 Mass. 65 [1925].

"Therefore, pursuant to [G. L. c. 278, § 30A], I am reporting this case to determine whether the tape recording of the deceased alleged victim, Rita Miniutti's testimony at the probable cause hearing may now be admitted in evidence at the trial in the Superior Court."

It appears from the docket entries furnished to us that this report arose out of a hearing on the defendant's motion to suppress the tape recording mentioned in the stipulation and the report. Before considering the question reported, it may be appropriate to comment once again on the subject of interlocutory appeals and reports arising out of pre-trial motions to suppress evidence.

Requests for pre-trial review of rulings of the Superior Court on motions to suppress originate most frequently with an application under G. L. c. 278, § 28E, for leave to appeal. That statute interposes a requirement that the application for leave to appeal be presented to the single Justice of this court before proceeding further. If the application is granted by him, the single Justice may hear the appeal or he may report it to the full court or to the Appeals Court for hearing. However, if he denies the application, or if he grants it and the appeal is heard by a single Justice, "the determination of the motion to suppress evidence shall be open to review by the full court after trial in the same manner and to the same extent as determinations of such motions not appealed under the interlocutory procedure . . . authorized [in G. L. c. 278, § 28E]." G. L. c. 278, § 28E, as amended by St. 1972, c. 740, § 16.

In Commonwealth v. Cavanaugh, 366 Mass. 277, 279 (1974), we said: "When an application for an appeal is granted under G. L. c. 278, § 28E, trial is stayed pending prosecution and determination of the appeal. The situation is thus similar to that arising under G. L. c. 278, § 30A, on a report before trial. See Commonwealth v. Henry's Drywall, Inc. 362 Mass. 552, 554-557 (1972). An interlocutory appeal, like a report, may be appropriate when the alternatives are a prolonged, expensive, involved or unduly burdensome trial or a dismissal of the indictment. See Commonwealth v. Benjamin, 358 Mass. 672, 673, n.1 (1971); Commonwealth v. Brandano, 359 Mass. 332, 337 (1971); Commonwealth v. Pignone, 361 Mass. 566 (1972). But interlocutory ...

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