Home COMMONWEALTH vs. BARRY H. SPENCER, JR.

449 Mass. 1026

June 21, 2007

The defendant, Barry H. Spencer, Jr., was indicted on charges of distribution of cocaine and other offenses. A judge in the Superior Court denied his motion to suppress certain evidence. Pursuant to Mass. R. Crim. P. 15, as appearing in 422 Mass. 1501 (1996), Spencer applied to a single justice of this court for leave to take an interlocutory appeal from that ruling. The single justice denied such leave. Spencer appealed from the single justice's order.

The Commonwealth has moved to dismiss Spencer's appeal. The motion must be allowed. "Neither the Commonwealth nor a defendant may appeal to the full court from a single justice's denial of an application for leave to pursue an interlocutory appeal." Cowell v. Commonwealth, 432 Mass. 1028 , 1028 (2000). We express no view on the merits of Spencer's motion to suppress. Spencer has recently been convicted of each offense and has filed a notice of

Page 1027

appeal from those convictions. The correctness of the judge's ruling on the motion to suppress may be raised in the ordinary course of appeal. [Note 1]

Appeal dismissed.

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

Barry H. Spencer, Jr., pro se.

Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth.


FOOTNOTES

[Note 1] Spencer has also filed a motion for a new trial. It appears that he filed an identical motion in the Superior Court. We take no action on the motion, but leave it for the Superior Court to decide. Spencer may appeal in the ordinary course from any adverse decision on the motion pursuant to Mass. R. Crim. P. 30 (c) (8), as appearing in 435 Mass. 1501 (2001).

Home CHRISTOPHER JOHNSTON vs. COMMONWEALTH.

449 Mass. 1026

June 21, 2007

Christopher Johnston appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. Johnston was indicted on charges of burglary and aggravated rape. Johnston's G. L. c. 211, § 3, petition challenged certain interlocutory rulings of the Superior Court, sought the disqualification of the judge who made those rulings, and requested a stay of trial court proceedings. The case is now before us on Johnston's memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). We dismiss the appeal as moot. The Superior Court docket, which we have obtained on our own initiative, indicates that after the single justice denied relief, the Commonwealth entered a nolle prosequi on each charge. This court thus cannot grant the relief Johnston is requesting. The appeal from the denial of relief under G. L. c. 211, § 3, is moot. Rasten v. Northeastern Univ., 432 Mass. 1003 (2000), cert. denied, 531 U.S. 1168 (2001). Moreover, Johnston was not entitled to relief under G. L. c. 211, § 3, because all of his claims concerning the interlocutory rulings and any alleged bias on the part of the judge could have been adequately raised and resolved in the ordinary appellate process if he had been tried and convicted. "Where a petitioner can raise his claim in the normal course of trial and appeal, relief [under G. L. c. 211, § 3,] will be denied." Foley v. Lowell Div. of the Dist. Court Dep't, 398 Mass. 800 , 802 (1986), and cases cited.

Appeal dismissed.

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

Christopher Johnston, pro se.