Relief Before TrialMASS. R. CRIM. P. 15, 16; Mass. Gen. Laws ch. 211 § 3 (2012)

By Morris Singer

Interlocutory Appeal

MASS. R. CRIM. P. 15

Interlocutory Appeal Appeal of order on a motion to dismiss. Commonwealth’s right. Appeal to “appropriate appellate court.” MASS. R. CRIM. P. 15(a)(1).

Appeal an order on a motion to suppress evidence. Right of either Defendant or Commonwealth. Application for leave to appeal. Appeal to a single justice of the Supreme Judicial Court. MASS. R. CRIM. P. 15(a)(2).

Applications for Leave Application to single justice of the Supreme Judicial

Court. Single justice determines whether “administration of

justice would be facilitated.” The single justice may hear the appeal as well, or may

report it to the court. No right to a hearing.

Contents of application The docket number of the trial court case. Findings and rulings by the trial court. Brief memorandum of law, including explanation of how

administration of justice would be facilitated. Estimate of length of trial. Scheduled trial date or next scheduled court event.

When Commonwealth applies: Statement of strength of case with or without evidence subject to suppression.

Rationale Commonwealth’s right. An adverse pretrial ruling on a motion to dismiss will “preclude

a public trial and . . . entirely terminate the . . . proceedings.” Burke v. Commonwealth, 373 Mass. 157 (1997).

An adverse pretrial ruling on a motion to suppress will result in the irretrievable loss of the right to present legal evidence. Commonwealth v. Boswell, 374 Mass. 263, 267 (1978).

Defendant’s right. In some circumstances, interlocutory appeal conserves judicial

resources and spares all parties the ordeal of a trial.

Procedure Commonwealth’s notice of appeal. Filed in trial court. Filed within thirty days of order.

Defendant’s application for leave to appeal. Filed in SJC for Suffolk County. Filed within seven days of order.

Standing Order Concerning Applications to Single Justice.

Interlocutory appeal can stop the action, but file a motion.

Appeals by indigent clients Defendant’s cost and reasonable attorney fees covered. Must file a motion and affidavit of indigence.

“Appropriate appellate court” N.B.: Commonwealth’s interlocutory appeals by right. Superior court case goes to Supreme Judicial Court. District court case goes to Appeals Court. Juvenile court?

Dismissal by the Prosecution

MASS. R. CRIM. P. 16

Entry Commonwealth files a nolle prosequi. Any time prior to pronouncement of sentence. Must be in writing, signed by prosecutor, and must include

reasons.

Jeopardy NP without defendant’s consent at trial = aquittal. Commonwealth v. Massod, 350 Mass. 745 (1966) (holding

defendant has right to have issue of guilt adjudicated once jeopardy attaches).

Remember to object to the NP to make lack of consent clear.

Partial Nulle Prosequi Conviction / adjudication for lesser-included offense. Partial NP is “preferred practice”. See Commonwealth v. Myers, 356 Mass. 343 (1969).

Same as if prosecutor files motion that defendant be tried on LIO.

Agreements between ADA and defense counsel of partial NP in consideration for plea on LIO = enforceable. Commonwealth v. Benton, 356 Mass. 447 (1969).

Discretion of the prosecutor “Power to enter a nolle prosequi is absolute in the

prosecuting officer from the return of the indictment up to the beginning of the trial . . . .” Commonwealth v. Dascalakis, 246 Mass. 12, 18 (1923).

Does not require leave of court. Different from Fed. R. Crim. P. 48(a). Dep’t of Revenue v. Sorrentino, 408 Mass. 340 (1990).

Collateral consequences Trial court did not err in considering juvenile’s prior nolle

prosequi case in imposing sentence because nothing prohibited a judge from considering a defendant’s entire record, including dismissals, for sentencing. Commonwealth v. Keon K., 70 Mass. App. Ct. 568 (2007).

Superintendence of Inferior Courts

Mass. Gen. Laws ch. 211 § 3 (2012)

Last resort “The supreme judicial court shall have general

superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided . . . .”

Only in exceptional circumstances. Not substitute for normal appellate review. May not get a hearing; can be decided on the papers.

Standard Substantial claim of violation of his substantive right, AND Irremediable error such that defendant cannot be placed

in status quo in regular course.

Interlocutory and post-conviction Interlocutory: only in the most exceptional

circumstances. Post-conviction: no 211 § 3 right, when defendant could

have made post-conviction motion for new trial.

Evidentiary issues Not generally. Evidentiary rulings = discretion of trial court. Newly-discovered evidence = motion for new trial.

But some exceptions.

Review of 211 § 3 denial Abuse of discretion or clearly erroneous.