456 Mass. 1018

April 9, 2010.

Nelson Davis appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. We affirm.

Davis has been charged in the District Court with assault and battery by means of a dangerous weapon and other offenses. Pursuant to the protocol set forth in Commonwealth v. Dwyer, 448 Mass. 122 (2006), and Commonwealth v. Lampron, 441 Mass. 265 (2004), Davis moved that a summons issue for certain records held by third parties. The motion was denied. In his G. L. c. 211, § 3, petition, Davis sought relief from the denial of the motion.

The case is before us on Davis's memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Davis to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." As we have explained, if Davis is convicted of one or more crimes, relief from the improper denial of a summons under the Dwyer protocol can be obtained in the ordinary appellate process. Rodriguez v. Commonwealth, 449 Mass. 1029 , 1030 (2007). Davis has not shown otherwise. [Note 1] The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.

Page 1019

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

Esther J. Horwich for the petitioner.


[Note 1] Davis's reliance on Commonwealth v. Bing Sial Liang, 434 Mass. 131 (2001), in which we considered the Commonwealth's request for relief under G. L. c. 211, § 3, from an order directing it to disclose certain documents, is misplaced. We do not require the Commonwealth to obtain review of such an order by disobeying it and appealing from any resulting sanction due to the district attorney's position as an elected official and the chief law enforcement officer for his or her district. Commonwealth v. Bing Sial Liang, supra at 133, citing District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507 , 509 n.3 (1995). This principle does not apply to Davis.