Home IN THE MATTER OF A GRAND JURY SUBPOENA.

442 Mass. 1029

September 20, 2004

The petitioner appeals from the denial of his petition under G. L. c. 211, § 3, by a single justice of this court. In his petition, he challenged an order entered by a Superior Court judge ordering him, over his objection based on his invocation of the privilege against self-incrimination, to testify before a Suffolk County grand jury investigating a crime of which the petitioner was the alleged victim. We affirm the judgment of the single justice.

The petitioner has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). The petitioner claims that he cannot obtain adequate review other than through the use of G. L. c. 211, § 3, without first sacrificing his privilege against self-incrimination. This argument is unconvincing. As the single justice pointed out in his thoughtful memorandum, "it is highly unlikely, if the Commonwealth proceeds before the grand jury on a careful basis, that any possible subject that may be incriminating to the [petitioner] would be touched upon. If the prosecutor strays into a potentially protected area, the [petitioner] may then exercise his privilege on a question by question basis." In addition, where a judge orders a witness to comply with a grand jury subpoena, "[t]he usual way of challenging such orders is to disobey them and appeal from the subsequent contempt order." Matter of a Grand Jury Subpoena, 411 Mass. 489 , 492-493 (1992). If the petitioner invokes his privilege as to any particular question, he has a right to appeal from any ensuing contempt order. The petitioner has not "set forth the reasons why review of the trial court decision cannot adequately be obtained" by this means. S.J.C. Rule 2:21 (2). Accordingly, the petitioner has not sustained his burden under rule 2:21.

Judgment affirmed.

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

John Salsberg for the petitioner.

Home SANCHITO MURRAY vs. COMMONWEALTH.

442 Mass. 1029

September 21, 2004

Sanchito Murray appeals from the denial by a single justice of this court of his petition pursuant to G. L. c. 211, § 3, which sought review of a Superior

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Court judge's denial of his request to be sentenced or discharged on a conviction that had been placed on file. We affirm.

Background. Murray was indicted in 1986 on charges of aggravated rape, breaking and entering a dwelling in the nighttime with intent to commit a felony, and attempting to obtain goods by unlawful use of a credit card. A jury convicted him of all charges. He was sentenced on the rape and burglary convictions, but the unlawful use of a credit card conviction was placed on file with his consent. Murray appealed from all the convictions. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the rape and burglary convictions, but did not address the credit card conviction because it had been placed on file. Commonwealth v. Murray, 27 Mass. App. Ct. 1408 (1989).

After attempting to obtain other postconviction relief, Murray eventually filed a motion in the Superior Court to "bring forward" the credit card conviction and appoint counsel to represent him at sentencing. In August, 1999, a Superior Court judge denied the motion. Instead of appealing, Murray filed in the county court the first of two petitions pursuant to G. L. c. 211, § 3, which requested that a single justice of this court require the Superior Court to "bring [the credit card] indictment . . . forward and appoint counsel to represent petitioner at his sentencing." The single justice denied the petition. Murray appealed, and the full court affirmed the single justice's decision. Murray v. Commonwealth, 432 Mass. 1026 (2000).

Almost one year later, Murray filed his present petition in the county court pursuant to G. L. c. 211, § 3, again requesting that the court "exercise its general superintendence . . . powers over the Superior Court . . . by requiring said court to bring [the credit card conviction] forward, appoint counsel and allow petitioner to be sentenced and reinstate his constitutional right to direct appeal [from] an unlawful conviction." A second single justice of this court denied the petition, and Murray again timely filed a notice of appeal.

Discussion. In his memorandum before the full court, [Note 1] Murray acknowledges the primary flaw in his second request for extraordinary relief pursuant to G. L. c. 211, § 3: that he failed timely to appeal from the Superior Court judge's denial in 1999 of his motion to be sentenced on the credit card conviction. Thus, he effectively concedes that he had an adequate, alternative remedy for the relief he seeks, i.e., an appeal to the Appeals Court from that ruling. See DuPont v. Superior Court, 401 Mass. 122 , 123-124 (1987). For this reason alone, the single justice was correct in denying Murray's petition. Id. at 123, quoting Hadfield v. Commonwealth, 387 Mass. 252 , 255 n.2 (1982).

Judgment affirmed.

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

Sanchito Murray, pro se.


FOOTNOTES

[Note 1] While the record is unclear, Murray may have attempted to proceed with his appeal pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). The rule is inapplicable in this case because the Superior Court judge's August, 1999, order was not interlocutory.