Richard Glawson (petitioner) appeals under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), from the denial of relief under G. L. c. 211, § 3, by a single justice of this court. The petitioner had sought review of a Superior Court order allowing the Commonwealth's motion to compel him to produce blood and hair samples. The single justice also denied the petitioner's subsequent motion for a stay.
The order of the Superior Court judge is interlocutory, and we examine whether the petitioner has met the requirement of rule 2:21 (2) that he "set forth the reasons why review of the trial court decision cannot adequately be obtained from any final adverse judgment in the trial court or by other available means." The petitioner contends, among other things, that no statute authorizes extraction of the samples; that the involuntary collection of them constitutes a search and seizure; that the lower court did not hold a hearing to determine whether there was probable cause for an arrest warrant; that he has been deprived of due process and equal protection; and that the grand jury were influenced by professional misconduct. He refers, in conclusion, to "irremediable harm at trial" and states that an appeal may be "fruitless."
The conclusory references to "irremediable harm" and to an appeal as possibly being "fruitless" do not meet the requirement of rule 2:21 (2). In addition, see Matter of a Grand Jury Investigation, 435 Mass. 1002 , 1003 (2001) (noting that comparison testing might exclude the petitioner; that appellate review would be available; and that petitioner may have assumed that the test results would be admitted at trial, that the decision to do so would be upheld on appeal, and that the results would be admitted again if a new trial were ordered); Cummins v. Commonwealth, 433 Mass. 1005 , 1006 (2001) (affirming denial of relief from order allowing Commonwealth's motion to take blood sample).
The case was submitted on the papers filed, accompanied by a memorandum of law.
Richard Glawson, pro se.
A single justice of this court denied a petition filed by the Commonwealth pursuant to G. L. c. 211, § 3. The Commonwealth appeals. We affirm.
The Commonwealth, aggrieved by the Appeals Court's decision in Commonwealth v. O'Neil, 51 Mass. App. Ct. 170 (2001), filed an application for
further appellate review, [Note 1] a motion in the Appeals Court seeking leave to file a late petition for rehearing, and a petition in the county court pursuant to G. L. c. 211, § 3. The Commonwealth maintains that the Appeals Court erred in ordering a new trial on the record before it, and instead should have remanded the case for an evidentiary hearing and development of a factual record on the defendant's claims of ineffective assistance of counsel and prosecutorial misconduct. The Commonwealth requested in its c. 211, § 3, petition that the single justice "vacate the Appeals Court decision and remand the case to the Superior Court for an evidentiary hearing on the claims . . . as if they had been raised in the first instance by a new trial motion under Mass. R. Crim. P. 30," as amended, 420 Mass. 1502 (1995).
The Appeals Court denied the motion to file a late rehearing petition, and, as indicated above, a single justice of this court denied the petition pursuant to G. L. c. 211, § 3. Action on the further appellate review application has been stayed, at the Commonwealth's request, pending disposition of this appeal.
The single justice correctly denied the petition because the Commonwealth failed to meet its burden, as a petitioner, of demonstrating the absence or inadequacy of alternative means of obtaining the relief it seeks. The requested relief, if warranted, could have been obtained through a timely filed petition for rehearing, and may still be obtained through the pending application for further appellate review. We could, for example, if it were appropriate, allow the Commonwealth's application, hear the appeal, and conclude, as the Commonwealth contends, that the underlying case must be remanded for further development of a factual record in the trial court on the claims of ineffective assistance and prosecutorial misconduct. Extraordinary relief under G. L. c. 211, § 3, is not required. See McGuinness v. Commonwealth, 420 Mass. 495 , 497 (1995), and cases cited.
Elin H. Graydon, Assistant District Attorney (Milton E. Cranney, Jr., Assistant District Attorney, with her) for the Commonwealth.
Larry J. Colby for the defendant.
[Note 1] We allowed the Commonwealth's motion to file its application late.