431 Mass. 492 (2000), Commonwealth v. Super

Citation:431 Mass. 492, 727 N.E.2d 1175
Case Date:May 12, 2000
Court:Supreme Judicial Court of Massachusetts

Page 492

431 Mass. 492 (2000)

727 N.E.2d 1175



James SUPER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 12, 2000

Argued April 4, 2000.

[727 N.E.2d 1177] Anthony Annino, Boston, for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.



The Commonwealth sought relief from a single justice of this court pursuant to G.L. c. 211, § 3, from a decision of a Superior Court judge ordering a required finding of not guilty for the defendant, James Super. The single justice ruled that the motion was properly before him pursuant to G.L. c. 211, § 3

Page 493

and granted the Commonwealth's petition for relief. The defendant now appeals from this judgment. We agree that the Commonwealth correctly invoked the extraordinary powers under G.L. c. 211, § 3. See infra at n. 5. We vacate the judgment of the single justice and affirm the required finding of not guilty ordered by the Superior Court.

  1. The prior proceedings in this case are unusual. On May 21, 1998, the defendant was indicted for assault by means of a dangerous weapon, in violation of G.L. c. 265, § 15B (b ). A pretrial conference report was filed on July 14. The defendant filed several pretrial motions on August 24.

    On September 4, an earlier indictment in an unrelated case against the defendant was transferred for trial on September 10 and the instant case was assigned to follow the earlier case. Also on September 4, the instant case was continued for status to September 10, by agreement.

    The jury returned a verdict of not guilty on the earlier indictment on September 14. On that same day, a Superior Court judge conducted a hearing on the defendant's motions in the instant case and held this case for trial to follow another case (involving a different defendant) 1 on September [727 N.E.2d 1178] 17. The following day, September 15, the instant case was sent to the session for trial on September 16.

    The Commonwealth moved for a continuance. At approximately noon on September 16, the judge held a hearing on the Commonwealth's motion to continue. The prosecutor indicated that he was not prepared to proceed with trial because the Commonwealth's witnesses were unavailable on such short notice. He stated, for the record, that the Commonwealth first received notice on September 14 that the case was scheduled for trial. He explained that the clerk's office advised the Commonwealth to call on September 15 to determine whether the case would be going to trial on September 16. 2 The prosecutor stated that he learned at approximately 4 P.M. on September 15 that the case was scheduled for trial on September 17.

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    The judge questioned the prosecutor as to the steps that he took between September 14 and September 17 to secure the attendance of the two trial witnesses, a civilian and a police officer. The Commonwealth attempted to call its witnesses. The prosecutor stated that he reached the civilian witness by telephone on the afternoon of September 15, after several failed attempts. The prosecutor explained that the witness related that he had school and work obligations that week. The prosecutor stated that he told the witness that he would have to come to court. The prosecutor concluded that the witness, although displeased, stated that he would come when requested to do so.

    With respect to the police officer, the prosecutor stated that he drafted a summons and sent it by facsimile transmission to the appropriate police station on September 14. The prosecutor stated that he received a message back from the officer that the officer would be out of the Commonwealth on vacation on September 17. The judge suggested that the prosecutor attempt to have the officer testify before he left for his vacation. 3 Alternatively, noting that the officer was not a percipient witness, the judge suggested that the prosecutor have another officer testify.

    Satisfied with the resolution of these witness issues, the judge denied the Commonwealth's motion for a continuance and ordered the lawyers to return at 2 P.M. to empanel a jury. The prosecutor responded that he would not move for trial before confirming that the Commonwealth's witnesses would be able to attend. The judge advised him, "You're not moving for trial. We're holding the trial. We're holding the trial...." The prosecutor did not seek a stay from the single justice pursuant to G.L. c. 211, § 3. Nor did he ask for time to do so.

    When court reconvened at approximately 2 P.M., the prosecutor again told the judge that the Commonwealth was not moving for trial. Nevertheless, the judge began empanelling jurors. The prosecutor stated that he was not going to participate in the proceedings and asked for a stay of the proceedings. The judge denied the request. The prosecutor repeated that he would not participate in the proceedings because he had not moved for

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    trial. 4 Defense counsel moved to dismiss, on the ground that the Commonwealth did not move for trial. The judge did not grant [727 N.E.2d 1179] the motion, and continued with empanelment proceedings. Defense counsel exercised peremptory challenges, but the prosecutor continued to refuse to participate.

    Immediately before the jurors were sworn, the prosecutor again asked for a stay. The request was denied and the jurors were sworn. The prosecutor did not ask the judge for time to seek a stay from an appellate court. The prosecutor then declined the...

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