The Commonwealth appeals from the judgment of a single justice of this court denying its petition pursuant to G. L. c. 211, § 3. We affirm.
Kerron Randell Lewis has been charged with distribution of a class B substance, in violation of G. L. c. 94C, § 32A; and possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A. He filed a motion in the Boston Municipal Court seeking pretrial discovery, pursuant to Mass. R. Crim. P. 14. After multiple hearings, the Commonwealth was ordered to provide certain discovery to Lewis, including copies of maintenance and calibration records for the machines used for weighing and analyzing the substance seized from him. The Commonwealth's G. L. c. 211, § 3, petition sought relief from that order.
The single justice exercised her discretion to consider the merits. "A single justice, in his or her discretion, may also properly decline to employ the court's extraordinary power of general superintendence where exceptional circumstances are not present . . . ." Commonwealth v. Elias, 463 Mass. 1015 , 1016 n.2 (2012), quoting Commonwealth v. Narea, 454 Mass. 1003 , 1004 n.1 (2009) ("[n]o party, including the Commonwealth, should expect that the court will exercise its extraordinary power of general superintendence lightly"). See Commonwealth v. Snow, 456 Mass. 1019 , 1019-1020 (2010); Commonwealth v. Maldonado, 456 Mass. 1012 , 1012 n.1 (2010). We conclude that the single justice did not err or abuse her discretion in denying relief.
The Commonwealth has not demonstrated an entitlement to relief on the substantive merits of its petition. On appeal, the Commonwealth contends that the information requested is not properly the subject of automatic discovery under Mass. R. Crim. P. 14 because it is not a "report of a scientific test or experiment." Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005). [Note 2] Alternatively, it argues, it satisfied its automatic discovery obligations by making the information available to the defendant for inspection and copying. Regardless of whether any of the requested information properly was the subject of automatic discovery under rule 14 (a) (1), "[d]is
covery of items not included in the automatic discovery regime remains subject to the court's discretion, and may be requested by pretrial motion." Reporters' Notes (Revised, 2004) to Rule 14, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1506 (LexisNexis 2013-2014). In this case, there is nothing to suggest that discovery from the public forensic laboratory is either unavailable or not "material and relevant evidence," under the discretionary discovery provisions of Mass. R. Crim. P. 14 (a) (2), as appearing in 442 Mass. 1518 (2004). With respect to the Commonwealth's claim that compliance with the discovery order would be unfairly burdensome, it provides no support in the record. [Note 3] See Commonwealth v. Snow, supra at 1020 n.2; Gorod v. Tabachnik, 428 Mass. 1001 , 1001, cert. denied, 525 U.S. 1003 (1998) (petitioner's burden to produce record to substantiate claim). The Commonwealth failed to demonstrate any error or abuse of discretion with respect to the discovery order requiring production of copies of the requested information.
Vincent J. DeMore, Assistant District Attorney, for the Commonwealth.
James F. McNiff, II, for the defendant.
[Note 1] As is our custom, we refer to the defendant by the name appearing in the complaint, taking into account amendments reflected in the docket below.
[Note 2] Although the Commonwealth's petition also suggested that the requested records "are outside the scope of Mass. R. Crim. P. 14 and are more properly [the] subject of a Mass. R. Crim. P. 17 (a) (2) motion for a third party summons," it does not pursue that claim on appeal.
[Note 3] The Commonwealth is correct that, unless a discovery order specifically provides otherwise, it ordinarily may satisfy its discovery obligations under Mass. R. Crim. P. 14 (a) (2), as appearing in 442 Mass. 1518 (2004), by disclosing to the defense, and permitting the defense to "discover, inspect and copy," the items subject to the order. Mass. R. Crim. P. 14 (a) (1), as amended, 444 Mass. 1501 (2005). In this case, however, the Commonwealth specifically was ordered to produce copies of particular records. While it may be that such an order could be unduly burdensome and constitute an abuse of discretion, as stated, the Commonwealth failed to make an adequate showing in that regard.