Commonwealth v. Brown

487 Mass. 1007

165 N.E.3d 1045

COMMONWEALTH

v.Tyriek BROWN.

SJC-12928

Supreme Judicial Court of Massachusetts.

April 14, 2021

The case was submitted on the papers filed, accompanied by a memorandum of law.

Travis H. Lynch, Assistant District Attorney, for the Commonwealth.

Joseph N. Schneiderman, for the defendant.

RESCRIPT

The defendant, Tyriek Brown, has been indicted for possession of a firearm during the commission of a felony and other offenses. The defendant moved that the Commonwealth's test firing of the alleged firearm be observed by a defense expert. A nonevidentiary hearing on the motion took place. On March 27, 2019, a judge in the Superior Court denied the defendant's request to have his own expert be present at the test firing, but ordered that the test firing be audio-visually recorded and that the recording be provided to the defendant. Four months later, on August 2, 2019, the Commonwealth filed a motion for reconsideration. That motion was denied on September 3, 2019. Another four months later, on January 15, 2020, the Commonwealth filed a petition under G. L. c. 211, § 3, seeking relief from the judge's order. A single justice of this court denied relief without a hearing, and the Commonwealth appeals. We affirm.

As we have explained, "[a] single justice considering a petition filed pursuant to G. L. c. 211, § 3, performs a two-step inquiry.... The first step requires the single justice to decide ‘whether to employ the court's power of general superintendence to become involved in the matter,’ ... or, stated differently, to ‘decide, in his or her discretion, whether to review "the substantive merits of the ... petition.’ " (Citations omitted.) Commonwealth v. Dilworth, 485 Mass. 1001, 1002, 147 N.E.3d 445 (2020), quoting Commonwealth v. Fontanez, 482 Mass. 22, 24, 120 N.E.3d 707 (2019). "The single justice need not take the second step (which is to resolve the petition on its substantive merits) ‘if the petitioner has an adequate alternative remedy or if the single justice determines, in his or her discretion, that the subject of the petition is not sufficiently important and extraordinary as to require general superintendence intervention.’ " Dilworth, supra, quoting Fontanez, supra at 24-25, 120 N.E.3d 707. See Commonwealth v. Rodriguez, 484 Mass. 1047, 1049, 144 N.E.3d 874 (2020). "Our role on appeal ... is to determine whether [the single justice] abused [his] discretion by declining to intervene.... We give considerable deference to the single justice's exercise of discretion, and it is not for us to substitute our judgment for that of the single justice." Dilworth, supra.

Here, the single justice denied relief without addressing the substantive merits of the Commonwealth's petition. On appeal, it is incumbent on the Commonwealth to show that on the record before him, the single justice was required to exercise the court's superintendence power: that is, that the Commonwealth had no adequate alternative remedy and that the single justice abused his discretion by failing to reach the merits of its petition in the circumstances of this case. As to alternative remedies, we have repeatedly stated that, as a general rule, interlocutory orders pertaining to discovery are not immediately appealable, see, e.g., Commonwealth v. Ware, 471 Mass. 85, 92, 27 N.E.3d 1204 (2015), citing Cronin v. Strayer, 392 Mass. 525, 528, 467 N.E.2d 143 (1984), and the Commonwealth has no right to appeal from a final judgment of acquittal. Although appellate review of an interlocutory order can sometimes be had by disobeying the order and appealing from any judgment imposed as a sanction, we do not require the Commonwealth to take this approach. See Commonwealth v. Bing Sial Liang, 434 Mass. 131, 133-134, 747 N.E.2d 112 (2001).¹

Regardless, the Commonwealth has not demonstrated that this case presented exceptional circumstances that required the single justice to reach the merits of its petition. The Commonwealth argues that the Superior Court judge's order will effectively terminate the prosecution because State police policy prohibits recording the test firing of a weapon. As a result, the Commonwealth argues, it faces an untenable choice: either forgo test firing the weapon, and thus be unable to prove that it is a "firearm"; or test fire the weapon without recording the process, violating the judge's order and risking exclusion of the weapon from the evidence at trial. Accordingly, the Commonwealth contends that the judge's order will leave it unable to prosecute ...