Where the Superior Court had plenary power to afford relief to criminal defendants who were denied their statutory right under G. L. c. 221, Section 91B, to have a stenographer present at their probable cause hearing, there was no error in the refusal of a single justice of this court to grant relief in the nature of a writ of mandamus or to exercise discretionary power under G. L. c. 211, Section 3. [302-303]
CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on May 15, 1975.
The case was heard by Hennessey, J.
Lester M. Gold for the plaintiffs.
William A. Schroeder, Assistant Attorney General, for the defendant.
BRAUCHER, J. In the defendant District Court a stenographer retained by two of the plaintiffs was not allowed to attend and take evidence at a probable cause hearing on criminal charges against the plaintiffs. The plaintiffs sought relief in the nature of a writ of mandamus and, if necessary, relief under G. L. c. 211, Section 3. A single justice of this court denied relief, without reaching the merits, on the sole ground of a declination to exercise discretionary power under G. L. c. 211, Section 3. We affirm on the ground that the Superior Court has plenary power to afford any relief to which the plaintiffs may be entitled.
We summarize the agreed facts. On May 8, 1975, the plaintiffs Neal Connaughton, a juvenile, and his brother,
David Connaughton, an adult, together with four other adult codefendants, were the subjects of a probable cause hearing in the juvenile session of the District Court of Chelsea on charges of rape, kidnapping, unnatural acts, and assault and battery. The Connaughtons advised the court that they had a stenographer present and asked that she be sworn and allowed to take testimony. The request and a subsequent written motion to the same effect were denied. The defendants in that proceeding were ordered bound over to the grand jury on all charges. The plaintiffs have since been indicted by a Suffolk County grand jury on the same charges.
The plaintiffs also allege that on April 3, 1975, the Commonwealth moved for a continuance to May 8, 1975, and they consented on the basis that the Commonwealth agreed not to indict directly but to allow them a probable cause hearing. If these allegations are material, they request an evidentiary hearing.
It seems clear enough that David Connaughton, the adult brother, was improperly denied his statutory right to have a stenographer present at the probable cause hearing. G. L. c. 221, Section 91B, inserted by St. 1965, c. 585. Commonwealth v. Shea, 356 Mass. 358 , 360-361 (1969). We think it is equally clear that, since the juvenile brother, Neal Connaughton, was bound over to the grand jury, the Juvenile Court proceeding was a "hearing or proceeding in connection with a criminal case" under G. L. c. 221, Section 91B, notwithstanding G. L. c. 119, Section 53. It follows that he also was denied his statutory right to have a stenographer present.
The remaining question is what remedy is available. The Superior Court, where the indictments are now pending, has plenary power, subject to appellate review where available, to afford any appropriate relief, including the holding of evidentiary hearings, the ordering of new probable cause hearings, dismissal of the indictments, or other measures. Cf. Commonwealth v. A Juvenile, 363 Mass. 640 , 642 (1973). There is therefore no occasion for relief in the nature of a writ of mandamus or for extraordinary relief
under G. L. c. 211, Section 3. Costarelli v. Municipal Court of the City of Boston, 367 Mass. 35 , 41.