Ventresco v. Com.

• Decision Date: 09 January 1991
• Citation: 565 N.E.2d 404,409 Mass. 82
• Parties: Robert P. VENTRESCO v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 404

565 N.E.2d 404

409 Mass. 82

Robert P. VENTRESCO v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 5, 1990.

Decided Jan. 9, 1991.

Willie J. Davis (Frances L. Robinson, Boston, with him), for defendant.

Leonard J. Henson, Asst. Dist. Atty. (James P. McKenna, Asst. Dist. Atty., with him), for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

A Suffolk County grand jury indicted Robert P. Ventresco on charges of conspiracy, falsifying motor vehicle registrations, and conflict of interest. Ventresco filed a motion to dismiss the indictments, which was denied. Ventresco then sought relief pursuant to G.L. c. 211, § 3. The single justice denied relief. We affirm the judgment of the single justice.

On April 6, 1987, the Suffolk County grand jury began an investigation into illegal towing activities of State agencies, the city of Boston, and private companies. Before the grand jury's initial ninety-day term expired, the Superior Court allowed the Commonwealth's request to extend the term until the investigation was complete. On December 29, 1988, the grand jury returned three indictments against Ventresco. Pursuant to Mass.R.Crim.P. 13, Ventresco moved to dismiss the indictments because (1) the grand jury was extended for an inordinately long time in violation of his constitutional rights; (2) the extension was granted under an inapplicable statute; and (3) the indictments were a "new matter" which the grand jury was not authorized to investigate during the extension of its term. The trial judge denied the motion to dismiss.

Ventresco then filed a complaint pursuant to G.L. c. 211, § 3, raising the same issues. The single justice denied relief, and Ventresco appeals. We affirm the judgment of the single justice. The denial of a motion to dismiss pursuant to Mass.R.Crim.P. 13 is not appealable by a defendant until after trial. ¹ General Laws c. 211, § 3, may not be used to circumvent our rule. There is a two-part test to identify those limited circumstances under which we will review interlocutory matters under c. 211, § 3. "To obtain review, a defendant must demonstrate both a substantial claim of violation of his substantive rights and irremediable error, such that he cannot be placed in statu quo in the regular course of appeal." Morrissette v. Commonwealth, 380 Mass. 197, 198, 402 N.E.2d 492 (1980). A single justice of this court, however, may decide or may reserve and report an issue raised by a complaint pursuant to G.L. c. 211, § 3. Unless the single justice determines that the denial of a motion to dismiss meets this standard and either decides the issue or reports the matter to the full court, a defendant cannot receive review under that statute of the denial of a motion to dismiss. General Laws c. 211, § 3, is not a substitute for normal appellate review of interlocutory orders. See Morrissette v. Commonwealth, supra at 198, 402 N.E.2d 492; Francis v. District Attorney for the Plymouth Dist., 388 Mass. 1009, 1010, 446 N.E.2d 712 (1983); Giacobbe v. First Coolidge Corp., 367 Mass. 309, 312, 325 N.E.2d 922 (1975). "The supervisory power of this court is used sparingly." Soja v. T.P. Sampson Co., 373 Mass. 630, 631, 369 N.E.2d 975 (1977).

In Ventresco's case, the single justice determined that under the authority of Morrissette, supra, Ventresco was not entitled to relief pursuant to c. 211, § 3. In Morrissette, the defendant sought interlocutory review of the sufficiency of the evidence on which a grand jury indicted him. He argued that he fulfilled the requirements of the two-prong test because "(1) ... he was denied his substantive right to a proper indictment as a condition precedent to a Superior Court trial and (2) ... a postconviction appeal is inadequate to protect this substantive right because the right allegedly infringed is that of not being tried at all except upon satisfaction of the condition precedent." Id. 380 Mass. at 198, 402 N.E.2d 492. We denied relief, holding that the defendant had no such substantive right because he could not show that the evidence the Commonwealth would introduce at trial was insufficient to convict. ² We also said that a claim of such error could be raised through the normal appellate process.

Ventresco attempts to distinguish this case from Morrissette because his claim is based on the grand jury's lack of neutrality, rather than on the insufficiency of the evidence before it. There is nothing in the record before us that in any way impugns the neutrality of the grand jurors.

Our cases support the judgment of the single justice. In Morrissette, we looked to the potential evidence to be introduced at trial, not at the evidence which was introduced before the grand jury. Only if there clearly were going to be insufficient evidence at trial to convict would we have considered the defendant's claimed substantive right not to be tried. "[A] criminal defendant who presents a double jeopardy claim of substantial merit is entitled to review of that claim before the second trial 'under our general superintendence power.' " Fadden v. Commonwealth, 376 Mass. 604, 606, 382 N.E.2d 1054 (1978), quoting Costarelli v. Commonwealth, 374 Mass. 677, 680, 373 N.E.2d 1183 (1978). Ventresco has made no showing that he has a constitutional right not to be tried. In Hadfield v. Commonwealth, 387 Mass. 252, 439 N.E.2d 279 (1982), the defendant claimed that he was indicted by a grand jury sitting at a time forbidden by statute and that the indictments were therefore without legal effect. We held that these claims, if true, could be effectively addressed on appeal. "If the indictments were now dismissed, it appears that the defendants would be susceptible to valid reindictments. If convictions should ensue after trial on the present indictments, the defendants, in arguing on appeal that there should be reversals by reason of the irregularities at issue here, may well also argue that reindictment or further prosecution is barred by principles of former jeopardy." Id. at 256, 439 N.E.2d 279. The same prospects confront Ventresco. Because he has not shown a substantive right that could not be remedied through the normal appellate process, we affirm the single justice's denial of relief under G.L. c. 211, § 3.

Although we are not required to address the merits of Ventresco's claims, we nevertheless briefly set forth our views since the parties have briefed and argued the issues involved. Our consideration of the merits supports our conclusion that c. 211, § 3, relief was properly denied. First, Ventresco's contention that the nearly twenty-month session of the grand jury violated his constitutional guarantee of a neutral grand jury is unsupported. He does not cite any case in which an indictment was invalidated on constitutional grounds because of the length of a grand jury's tenure. Moreover, Federal laws, which unlike our State laws, contain definite time periods beyond which a grand jury may not sit, allow terms longer than the one in this case. See Federal R.Crim.P. 6(g) (grand jury may serve eighteen months and be extended six months); 18 U.S.C. § 3331(a) (1988 ed.) (special grand jury may serve up to thirty-six months). The term of this grand jury was not unconstitutionally long.

Second, there was sufficient statutory authorization for the order extending the grand jury. The court ordered the extension pursuant to G.L. c. 277, § 1A. Ventresco contends that G.L. c. 234A, § 41, superseded c. 277, § 1A, and that therefore the extension was unauthorized and void. Thus, Ventresco concludes, the grand jury lacks the authority to return valid indictments. We do not agree.

"Where two statutes deal with the same subject they should be interpreted harmoniously to effectuate a consistent body of law." Boston Hous. Auth. v. Labor Relations Comm'n, 398 Mass. 715, 718, 500 N.E.2d 802 (1986). Ventresco nevertheless argues that § 41 of c. 234 A requires that we conclude the extension sought under G.L. c. 277, § 1A, was invalid. Section 1 of G.L. c. 234A states that "[w]henever any section of this Chapter shall become applicable within a participating county all provisions of law which are inconsistent with such s...