Categories: Massachusetts Appellate Court Opinions

LINDSEY v. COMMONWEALTH, 442 Mass. 1020 (2004)

813 N.E.2d 840

JACK LINDSEY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts.
August 20, 2004.

Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Practice, Criminal, Dismissal, Interlocutory appeal.

The petitioner, Jack Lindsey, appeals from a judgment of a single justice of this court denying his petition pursuant to G.L. c. 211, § 3. We affirm.

There are numerous criminal charges pending against the petitioner in the Superior Court. He moved to dismiss the charges on the ground that the Commonwealth had failed timely to disclose a police report and the existence of a witness identified in the report; he alleged that, as a result of the delayed disclosure, the witness cannot be located and his defense of the case has been irreparably impaired. A judge in the Superior Court denied the motion to dismiss. The petitioner then filed his G.L. c. 211, § 3, petition in the county court seeking review of the Superior Court judge’s ruling.

The case is presently before us on the petitioner’s memorandum and record appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001) The single justice was correct to deny the petition because the petitioner has an adequate alternative to seeking relief under G.L. c. 211, § 3, namely, a direct appeal in the normal course after trial in the event that he is convicted. Beyond making generalized assertions,[1] the petitioner has not demonstrated in his rule 2:21 memorandum that a direct appeal after trial would be inadequate to vindicate his claims fully. The result we reach is in keeping with the settled rule that the denial of a motion to dismiss in a criminal case is not reviewable as a matter of right interlocutorily — the one notable exception being a motion to dismiss that raises a double jeopardy claim of substantial merit, which is not the case here. Jackson
v. Commonwealth, 437 Mass. 1008, 1009 (2002), and cases cited Ventresco v. Commonwealth, 409 Mass. 82, 83-85 (1991).

Judgment affirmed.

[1] The petitioner maintains that the denial of his motion to dismiss should be reviewed now, before trial, because without the witness, “[t]he current state of the evidence . . . will almost certainly result in a guilty finding after trial.” The petitioner also claims that his case raises a question of first impression in Massachusetts involving the Supreme Court’s decision i Crawford v. Washington, 124 S. Ct. 1354 (2004). He does not explain, however, why that claim could not adequately be resolved, if necessary, after trial (and on a fully developed record).

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