Com. v. Vaden
Decision Date | 19 September 1977 |
Citation | 373 Mass. 397,367 N.E.2d 621 |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James D. McDaniel, Jr., Boston, for defendant.
Richard A. Hannaway, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.
The defendant is awaiting trial on an indictment charging him with the crime of robbery. The case is before us on an interlocutory report by a judge of the Superior Court under G.L. c. 278, § 30A, of an evidentiary question which may arise at the trial of the indictment. The report was initially entered in the Appeals Court, as required by G.L. c. 211A, § 10, and it was thereafter transferred to this court for direct appellate review pursuant to the same statute.
The facts giving rise to the report were stipulated to be the following:
"For the purpose of reporting a question on law in this case and for that purpose only, the above facts are stipulated."
The interlocutory report by the judge is in the following form:
"Therefore, pursuant to (G.L. c. 278, § 30A), I am reporting this case to determine whether the tape recording of the deceased alleged victim, Rita Miniutti's testimony at the probable cause hearing may now be admitted in evidence at the trial in the Superior Court."
It appears from the docket entries furnished to us that this report arose out of a hearing on the defendant's motion to suppress the tape recording mentioned in the stipulation and the report. Before considering the question reported, it may be appropriate to comment once again on the subject of interlocutory appeals and reports arising out of pre-trial motions to suppress evidence.
Requests for pre-trial review of rulings of the Superior Court on motions to suppress originate most frequently with an application under G.L. c. 278, § 28E, for leave to appeal. That statute interposes a requirement that the application for leave to appeal be presented to the single justice of this court before proceeding further. If the application is granted by him, the single justice may hear the appeal or he may report it to the full court or to the Appeals Court for hearing. However, if he denies the application, or if he grants it and the appeal is heard by a single justice, "the determination of the motion to suppress evidence shall be open to review by the full court after trial in the same manner and to the same extent as determinations of such motions not appealed under the interlocutory procedure . . . authorized (in G.L. c. 278, § 28E)." G.L. c. 278, § 28E, St. 1972, c. 740 § 16.
In Commonwealth v. Cavanaugh, 366 Mass. 277, 279, 317 N.E.2d 480, 481 (1974), we said: ...
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