In re Two Applications for a Criminal Complaint

493 Mass. 1002

218 N.E.3d 641

In the MATTER OF TWO APPLICATIONS FOR A CRIMINAL COMPLAINT.

SJC-13373

Supreme Judicial Court of Massachusetts.

October 11, 2023

The case was submitted on briefs.

The petitioner, pro se.

RESCRIPT

The petitioner appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.

The petitioner filed in the District Court an application for a criminal complaint charging a certain individual with witness intimidation, G. L. c. 268, § 13B, and unlawful wiretapping, G. L. c. 272, § 99 C 1. An assistant clerk-magistrate in the District Court found no probable cause and did not issue the requested complaint. The petitioner filed a motion for redetermination. A judge in the District Court denied that motion. Thereafter, alleging that the individual had committed further unlawful acts, the petitioner filed another application for a criminal complaint, this time in the Boston Municipal Court (BMC), charging the individual with witness intimidation. The clerk-magistrate of the BMC found no probable cause and did not issue the requested complaint. The petitioner has not sought redetermination in the BMC. The petitioner's G. L. c. 211, § 3, petition, as supplemented,¹ sought relief pertaining to both the District Court and BMC proceedings and particularly sought the issuance of criminal complaints. The single justice denied relief without addressing the merits.

The single justice neither erred nor abused his discretion by denying relief. "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.’ " ’ " Commonwealth v. Monteiro, 492 Mass. 1013, 1014, 209 N.E.3d 539 (2023), quoting Commonwealth v. Brown, 487 Mass. 1007, 1008, 165 N.E.3d 1045 (2021). See 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.’ " Brown, supra, quoting Commonwealth v. Dilworth, 485 Mass. 1001, 1002, 147 N.E.3d 445 (2020). "Where, as here, the single justice denied relief without reaching the substantive merits of the ... petition, ‘it is incumbent on the [petitioner] to show that on the record before him, the single justice was required to exercise the court's superintendence power: that is, that the [petitioner] had no adequate alternative remedy and that the single justice abused his discretion by failing to reach the merits of [his] petition.’ " Monteiro, supra, quoting Brown, supra. The petitioner's complaint is that the clerks-magistrate of the District Court and the BMC considered his applications, found they were not supported by probable cause, and declined to issue the requested criminal complaints. The decision to issue or not to issue a criminal complaint is a routine matter in those courts. The single justice was not obligated to exercise this court's extraordinary superintendence power in these circumstances.

Even considering the merits, the petitioner fares no better. "It is well established that ‘a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.’ "

Matter of an Application for a Criminal Complaint, 477 Mass. 1010, 1011, 75 N.E.3d 1110 (2017), quoting Ellis, petitioner, 460 Mass. 1020, 1020-1021, 957 N.E.2d 222 (2011). "For this reason, ‘we have consistently declined to review,...