Costarelli v. Municipal Court of City of Boston

Decision Date19 February 1975
Citation367 Mass. 35,323 N.E.2d 859
Parties. 1 Supreme Judicial Court of Massachusetts, Suffolk
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert W. Hagopian, Wrentham, for plaintiff.

Patricia M. Dinneen, Deputy Asst. Atty. Gen., for defendants.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

QUIRICO, Justice.

This case presents two issues for our consideration and decision. The first is whether a single justice of this court properly sustained the defendants' demurrer to the plaintiff's petition asking this court to invoke and exercise in his behalf the powers given to it by G.L. c. 211, § 3, as amended by St.1973, c. 1114, § 44, in relation to action allegedly taken by a judge of the Municipal Court of the City of Boston (Municipal Court). The second is whether the single justice properly denied the plaintiff's motion that Mr. Robert W. Hagopian be appointed his counsel in this case and that such counsel be paid his reasonable fees, and reimbursed for his expenditures, at public expense.

A. SUSTAINING OF DEFENDANTS' DEMURRER.

The pertinent allegations of the plaintiff's petition are the following. On February 27, 1974, the plaintiff appeared before the judge of the Municipal Court (judge) on a complaint charging him with the crime of using 'a motor vehicle without authority knowing that such use is unauthorized.' G.L. c. 90, § 24(2)(a), as amended through St.1973, c. 243. He entered a plea of not guilty, was tried and found guilty. After hearing from a probation officer and from counsel for the plaintiff (the then defendant) the judge announced that he would impose a one-year suspended sentence to the house of correction if the plaintiff would not exercise his right of appeal to the Superior Court for a trial by jury (G.L. c. 278, § 18), or a sentence of one year without suspension if the plaintiff wanted to exercise his right to appeal and to a trial by jury. The plaintiff's counsel objected to the procedure and the judge demanded that the plaintiff take his 'pick, one year suspended with no appeal or one year with appeal.' The plaintiff stated that he intended to appeal, whereupon the judge imposed a sentence of one year and the plaintiff exercised his right of appeal.

The plaintiff alleges further that the judge's imposition on him of the one-year sentence was a penalty for his exercise of his right of appeal and of trial by jury and that it violated other rights under the Constitutions of the United States and this Commonwealth. He then 'prays this court to vacate the judgment of a one year jail sentence and order . . . (the judge) on remand, to expunge the one year jail sentence from the face of the complaint and insert, in lieu, a one year suspended jail sentence . . . (and) to enjoin the respondent judge . . . from imposing in the future any penalties on the right to trial by jury.'

The defendants demurred to the petition on the grounds that (1) the plaintiff has a plain and adequate remedy at law, and (2) the plaintiff failed to set forth a cause of action. After hearing, the single justice sustained the demurrer 'without leave to amend and without prejudice to the renewal of the petition after completion of the appeal and trial de novo' in the Superior Court on the complaint on which the plaintiff had been convicted in the Municipal Court. There has been no trial de novo on that complaint in the Superior Court to date.

It is a familiar rule that '(f)or the purpose of obtaining a decision on their demurrer, the defendants admit all of the facts well pleaded in the declaration (bill or petition demurred to) and the necessary inferences from the facts thus admitted.' George v. Jordan Marsh Co., 359 Mass. 244, 246, 268 N.E.2d 915, 916 (1971). The question to be decided by us is whether the facts and necessary inferences thus admitted entitle the plaintiff to maintain his petition as matter of right. We hold that they do not. 2

In all material procedural aspects, this case is strikingly similar to the case of WHITMARSH V. COMMONWEALTH, ---MASS. --- , 316 N.E.2D 910 (1974)A, decided by this court on September 4, 1974. The similarity is understandable since (1) counsel for the plaintiff in each case is the same, and (2) the ultimate objective of each case is a declaration that the Massachusetts two-tier court system for the trial of misdemeanors and certain felonies violates the plaintiff's claimed right to a trial by jury in the first instance when he is brought to trial on a criminal complaint. In each case the plaintiff pursued the following course. He filed a written motion for a jury trial in the District or Municipal Court and the motion was denied. He was placed on trial before a judge, he offered no evidence in defense, was found guilty and appealed to the Superior Court. He filed a motion in the Superior Court for a dismissal of the complaint because of the alleged violation of his claimed right to a jury trial in the first instance in the lower court. The motion has not been acted on by the Superior Court.

When their respective criminal cases had proceeded to the point described above, Whitmarsh and Costarelli each filed a petition asking that a single justice of this court exercise his extraordinary power under G.L. c. 211, § 3. Whitmarsh in his petition asked that our 'two-trial de novo procedure' be declared unconstitutional and that the Commonwealth be enjoined from further prosecuting the complaint pending against him. Costarelli in his petition asks that the judgment of a one-year sentence imposed by the Municipal Court judge be expunged, that a judgment of a suspended sentence of one year be substituted therefor, and that the judge be enjoined 'from imposing in the future any penalties on the right to trial by jury.'

Although Costarelli thus limited the relief he sought from the single justice, about the same time he filed a request in the Supreme Court of the United States asking it to take jurisdiction and to decide (1) whether he was entitled, under the United States Constitution, to a trial by jury in the first instance without first going through a trial before a judge without jury, and (2) whether the Massachusetts 'two-tier trial de novo procedures . . . impose an unconstitutional burden on the right to a speedy trial and violate the double jeopardy provisions of the Fifth Amendment.' Further information about this Federal proceeding is given in the margin of this opinion. 3 Although both Whitmarsh and Costarelli claimed they were being denied their constitutional right to a speedy trial by jury, each promptly filed a motion for a continuance when his case was pending in the Superior Court where such a trial was available. Costarelli moved that his case be continued until March 11, 1975, because of the proceedings he had brought in the United States Supreme Court and his motion was allowed.

On these facts, in all pertinent respects identical to those of the Whitmarsh case, supra, we hold, as we did in that case, on this issue, that the plaintiff's petition fails to allege facts which entitle him to relief under G.L. c. 211, § 3. We held there, and hold here: that the statutory power of 'general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided' should be used sparingly, and should rarely be used in a case where some other practical remedy is available; that on requests to review interlocutory rulings in criminal cases we should use this power only in the most exceptional circumstances and only to avoid errors which might be irremediable and possibly not curable even by a new trial since the defendants could not thereafter be placed in statu quo; and that because the plaintiff, for reasons either stated or reasonably inferable, 4 has eschewed other remedies available to him in the courts of this Commonwealth, he is not entitled to the extraordinary, yet limited, remedy afforded by G.L. c. 211, § 3. The single justice properly sustained the demurrer to the petition. By this conclusion that the plaintiff has pursued the wrong remedy, we intend no ruling that he would not be entitled to relief upon proof of his allegations in a proper proceeding. We have little doubt that if, in a proper proceeding, the plaintiff sustains his burden of proving the allegations of his petition concerning the manner in which the judge sentenced him, he will obtain appropriate relief therefrom. We hold only that a petition under G.L. c. 211, § 3, is not the proper proceeding therefor in the present status of the criminal proceeding against him.

B. DENIAL OF MOTION TO APPOINT MR. HAGOPIAN COUNSEL FOR PLAINTIFF.

The plaintiff's petition to the single justice for relief under G.L. c. 211, § 3, was prepared for him and filed by his present counsel, Mr. Robert W. Hagopian, on March 25, 1974. Five days before the hearing on the defendants' demurrer, Mr. Hagopian signed and filed a motion in the name of the plaintiff alleging that the plaintiff was indigent, that Mr. Hagopian had represented him without compensation since February 27, 1974, in the case in the Municipal Court, that he desired Mr. Hagopian to be his counsel 'of his own choosing and does not want to be represented by others,' that there were 'no exceptional circumstances to establish an exception under this Court's Rule 3:10,' and that he asserted a 'constitutional right to counsel of his own choosing under the Sixth Amendment pursuant to NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 45 (1963); Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964); and Mineworkers v. Illinois Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 872 (1967).' The motion then asks that Mr. Hagopian be appointed counsel for the plaintiff and be paid his disbursements, expenses and reasonable counsel fees.

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