Heard: November 7, 2018.
found and returned in the Superior Court Department on
December 15, 2015. The cases were tried before Cornelius
J. Moriarty, II, J., a motion for the release of juror
information was heard by him, and a motion for
reconsideration was considered by him.
C. Brennan for the defendant.
M. McKenna, Assistant District Attorney, for the
Present: Agnes, Blake, & Neyman, JJ.
his convictions by a jury in the Superior Court, the
defendant, Brian Vines, filed a notice of appeal and,
subsequently, a series of motions seeking, inter alia,
certain information about the jurors seated in his trial, for
use in support of a motion for postconviction relief. In his
first motion, the defendant sought the names, addresses, and
dates of birth of the jurors. The motion was allowed as to
the names of the jurors only. Approximately five months later,
a different attorney filed what he captioned a "Renewed
Motion of the Defendant for the Release of Juror
Information" seeking the same information as the first
motion. After the Commonwealth filed its opposition, the
defendant filed a reply memorandum clarifying that he was
seeking the addresses and the dates of birth of the jurors
that were seated in his case based on the list of jurors in
the venire who appeared for jury selection at that time of
his trial. After a hearing, the motion was denied and the
defendant noticed an appeal from the order. The defendant
then filed a motion for reconsideration, which was denied,
and he also appealed from that order.
defendant claims that the judge abused his discretion in
denying the motions, and that the orders, in essence, were
orders of impoundment not supported by good cause. At oral
argument before this court, the Commonwealth raised for the
first time the question whether these orders are
interlocutory and therefore not immediately
appealable. If so, then we are without subject matter
jurisdiction and the appeal must be dismissed. See
Commonwealth v. Swist, 38
Mass.App.Ct. 907, 908-909 (1995), cert, denied, 516 U.S. 886
(1995) (appeal dismissed for lack of subject matter
jurisdiction on review of interlocutory order). For the
reasons that follow, we conclude that a postconviction motion
for juror information is in the nature of a request for
postconviction discovery related to a motion for new trial,
and therefore interlocutory and not appealable until a motion
for new trial has been filed and decided in the trial court.
Accordingly, we dismiss the appeal.
defendant claims that he needs the juror information in order
to contact the seated jurors pursuant to the procedures set
forth in Commonwealth v. Moore,
474 Mass. 541, 551-552 (2016). His stated grounds are that he
is in possession of correspondence from a seated juror that
raises questions whether there were extraneous influences
from pretrial publicity that may have had an impact on
individual jurors. The defendant moved for, and was granted,
a stay of his direct appeal in order to pursue the issue
whether extensive pretrial publicity provided grounds for a
there are no cases that explicitly address the nature of the
motions before us, we look for guidance to those cases
involving a request for postconviction discovery because the
defendant's motion seeks information that may be material
and relevant to a motion for new trial. See Mass. R. Crim. P.
30 (c) (4), as appearing in 435 Mass. 1501 (2001); Mass. G.
Evid. § 606 (2018). "The purpose of postconviction
discovery is to allow a defendant to gather evidence to
support an apparently meritorious claim . . . [where] the
evidence that can be adduced to support the claim is unknown
to the court" (quotations omitted).
Commonwealth v. Ware, 471 Mass.
85, 94 (2015), quoting Commonwealth v.
Daniels, 445 Mass. 392, 406 (2005). See
Commonwealth v. Werner, 81
Mass.App.Ct. 689, 693 (2012), quoting Daniels,
supra at 407 (judge may order postverdict discovery
if defendant makes "a sufficient showing that the
discovery is reasonably likely to uncover evidence that might
warrant granting a new trial"). Although not every
meritorious claim entitles a defendant to a new trial, the
defendant's attempt here to gather the evidence that may
enable him to make the necessary showing is comparable to a
postconviction discovery request. See Commonwealth
v. DiCicco, 470 Mass. 720, 736, 739 (2015)
(order denying new trial affirmed where newly discovered
deoxyribonucleic acid [DNA] evidence would not have cast
meaningful doubt on verdict); Commonwealth
v. Morgan, 453 Mass. 54, 63 (2009) (order
denying new trial affirmed where defendant merely speculated
that DNA evidence at trial was inaccurate).
speaking "discovery orders are interlocutory."
Cronin v. Strayer, 392 Mass. 525,
528 (1984) See Black's Law Dictionary 1271 (10th ed.
2014) (defining interlocutory order as "[a]n order that
relates to some intermediate matter in the case; any order
other than a final order"). "[A]n aggrieved
litigant cannot as a matter of right pursue an immediate
appeal from an interlocutory order unless a statute or rule
authorizes it." Ruggiero v.
Giamarco, 73 Mass.App.Ct. 743, 746 (2009), quoting
Elles v. Zoning Bd. of Appeals of
Quincy, 450 Mass. 671, 673-674 (2008). This is because
interlocutory orders are not "final orders"
(quotations and citation omitted), Brum v.
Dartmouth, 428 Mass. 684, 687 (1999), and finality
is important to prevent piecemeal litigation causing delay
and wasting judicial efforts on questions that may turn out
to be unimportant. Borman v.
Borman, 378 Mass. 775, 779 (1979), citing
Vincent v. Plecker, 319 Mass. 560,
564 n.l (1946). There are "limited exceptions to this
rule" of finality not relevant here. Ruggiero,
supra. Accordingly, this court is bound by the
"general rule of practice so early announced, so
frequently reiterated and so constantly followed, and so
manifestly in the interest of parties litigant and the
general public . . . that . . . [interlocutory rulings] will
not be considered until the case is ripe for final
judgment." Pollack v. Kelly,
372 Mass. 469, 470-471 (1977), quoting Weil
v. Boston Elevated Ry., 216 Mass. 545, 549
(1914). Cf. Patel v. Martin, 481
Mass. 29, 36 (2018) (no right to immediate appeal from a
civil discovery order under doctrine of present execution).
same aversion to appellate review of interlocutory orders
applies where an interlocutory order concerns a
postconviction ruling. See Scott v.
Commonwealth, 479 Mass. 1034, 1035 (2018) (affirming
order denying G. L. c. 211, § 3, petition that sought
review of order denying postconviction access to confidential
juror questionnaires). And, importantly, rule 30, the rule
governing both postconviction relief and discovery related to
postconviction relief, authorizes an appeal from only "a
final order." Mass. R. Crim. P. 30 (c) (8), as appearing
in 435 Mass. 1501 (2001) . The "final" order
contemplated by rule 30 (c) (8) is an order granting or
denying postconviction relief. See Tavares
v. Commonwealth, 478 Mass. 1024, 1024-1025
(2018) (order denying motion for postconviction discovery
properly challenged in connection with appeal from order
denying motion for new trial); Celester v.
Commonwealth, 440 Mass. 1035, 1036 (2004) (because
order denying request for funds was interlocutory, defendant
may challenge it in context of appeal from order denying
motion for new trial); Donald v.
Commonwealth, 437 Mass. 1007, 1007 (2002)
("established route for the [defendant] to obtain
appellate review of the denial of his motion for
postconviction discovery would be in connection with an
appeal from the denial of his motion for a new trial"
authorized by Mass. R. Crim. P. 30 [c] ).
without addressing the viability of the defendant's
motion, the defendant is not without a remedy. In the
ordinary course, the defendant may pursue his motion in
conjunction with a motion for new trial. See
Mass.App.Ct. 118, 121 n.6 (2014) ("A motion for new
trial is the recognized route for raising postverdict claims
because it permits a clarified record to serve as a basis for
the judge's decision and for appellate review").
Should the defendant be able to obtain a new trial with the
information currently in his possession, the requested
postconviction discovery (and this appellate litigation) will
be unnecessary. If, however, the motion for new trial is
denied, the defendant may appeal that order and challenge in
that appeal the order denying his motion for juror
information. Where, as here, the defendant's direct
appeal has not been decided, he may also seek to consolidate
his direct appeal and the ruling on his motion for new trial,
as well as the rulings on the motions ...