The case was submitted on the papers filed, accompanied by a memorandum of law.
Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.
Michael K. Fee & James L. Sultan for the defendant.
The defendant is presently on trial in the Superior Court on indictments charging murder in the first degree and various [27 N.E.3d 381] firearms offenses. The Commonwealth filed a motion in limine before trial seeking to establish the admissibility of testimony fro a particular witness, Robert Paradis, as to certain conversations that he had with the defendant. After the trial began, and after conducting a hearing on the motion that included a voir dire of Paradis, the trial judge denied the motion on February 18, 2015. Nineteen days later, on March 9, 2015, the Commonwealth sought relief from a single justice of this court pursuant to G. L. c. 211, § 3. The single justice denied the petition on March 11, 2015. Six days after that, on March 17, the Commonwealth filed a notice of appeal from the single justice's ruling, and on the following day, March 18, 2015, filed a memorandum in this court pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Pursuant to an order of this court issued the same day, the defendant then filed, on March 23, 2015, his response to the Commonwealth's memorandum. We have considered the papers, and, for the
reasons that follow, affirm the decision of the single justice.
Based on the voir dire of Paradis, he would have testified at trial that he was in California for several days with the defendant, as the defendant's guest, approximately six weeks prior to the murder of the victim. While riding in an automobile being driven by the defendant, Paradis heard the defendant reference " heat" or " fire," and say that he had " heat" or " fire" under his seat, which Paradis took to mean that the defendant had a firearm under the driver's seat in the automobile. Paradis also heard the defendant say that he had a " .45," the caliber weapon that was subsequently used to kill the victim in this case.
The defendant left California the day before Paradis. That day, while on his way to the airport, the defendant telephoned Paradis and asked him to check a dresser or nightstand drawer in a bedroom in the defendant's condominium unit where they had been staying to see if " it" was there. In the drawer Paradis found a black T-shirt. He picked up the shirt and felt something wrapped inside it. Although he did not unwrap the shirt, he determined that what was wrapped inside was a firearm. He told the defendant that " it" was still there. There is no indication that Paradis removed the items from the drawer [27 N.E.3d 382] (other than to pick up the T-shirt and feel what was wrapped inside).
The Commonwealth has focused its submissions exclusively on the merits of the judge's ruling denying its motion in limine. It has made no argument concerning the propriety of using this court's extraordinary power of general superintendence to seek review of that ruling.
It is true that the Commonwealth cannot obtain appellate review of the trial judge's ruling by means other than G. L. c. 211, § 3. That, however, " is not dispositive of the question whether the use of G. L. c. 211, § 3, [is] appropriate in these circumstances." Commonwealth
v. Snow, 456 Mass. 1019, 1019, 924 N.E.2d 744 (2010). " [T]he fact that the Commonwealth has no other remedy does not make [G. L.] c. 211, § 3, review automatic." Commonwealth
v. Richardson, 454 Mass. 1005, 1005, 907 N.E.2d 642 (2009), quoting Commonwealth
v. Cook, 380 Mass. 314, 319, 403 N.E.2d 363 (1980). The extraordinary power of general superintendence under the statute is meant for truly extraordinary situations. To be sure, " [w]e have rarely allowed Commonwealth appeals of interlocutory matters under our supervisory powers," and we have said that " [w]e will review interlocutory matters in criminal cases only when 'substantial claims' of 'irremediable' error are presented ... and only in 'exceptional circumstances' ... where 'it becomes necessary to protect substantive rights.'" (Citations omitted.) Commonwealth
v. Cook, supra at 319-320. In particular, we have held that the extraordinary power of general superintendence is not to be used, as the Commonwealth seeks to use it here, simply to second guess a trial judge's routine evidentiary rulings:
" To accept this view would give the Commonwealth a right to interlocutory relief as to every adverse evidentiary ruling made by a trial judge. The Commonwealth's argument proves too much. General Laws c. 211, § 3, relief is not a means for second-guessing a trial judge's evidentiary rulings. ... To accept the argument of the Commonwealth would ...