Whitmarsh v. Com.

• Decision Date: 04 September 1974
• Citation: 316 N.E.2d 610,366 Mass. 212
• Parties: Walter E. WHITMARSH v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 610

316 N.E.2d 610

366 Mass. 212

Walter E. WHITMARSH v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 1974.

Decided Sept. 4, 1974.

Robert W. Hagopian, Cambridge, for plaintiff.

Robert B. Russell, Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

On September 6, 1973, the plaintiff in the present case was tried in a District Court on a complaint charging him with the misdemeanor of operating a motor vehicle while under the influence of intoxicating liquor. G.L. c. 90, § 24(1)(a), as amended through St.1971, c. 1071, § 4. Before the trial started he filed a written motion for a trial by jury which was denied. After a trial before a judge of the District Court, at which he rested, without presenting any evidence, upon completion of the Commonwealth's case, he was found guilty and fined $100. He appealed therefrom to the Superior Court (G.L. c. 278, § 18), requesting the court to note that the appeal 'was not to be considered a waiver of his demand for a trial by jury and was being made only to preserve that right procedurally.' The appeal was entered in the Superior Court on September 10, 1973, and it has not been tried.

On September 18, 1973, the plaintiff filed a document entitled 'INTERLOCUTORY APPEAL' with the clerk of this court for Suffolk County alleging the facts stated above and asking that the court declare that the 'Massachusetts two-trial de novo procedure . . . (violates) Article XII of the Massachusetts Constitution and the Fifth, Sixth, and Fourteenth Amendment(s) of the United States Constitution,' and that it 'enjoin the Commonwealth from further prosecuting the complaint initiated in the District Court.' ¹ The latter request was denied by the single justice on November 8, 1973, and the plaintiff excepted thereto. On December 10, 1973, the Commonwealth filed an answer admitting all of the facts alleged in the plaintiff's petition. On January 11, 1974, a single justice of this court, acting at the request of the parties, reserved and reported the case without decision to the full court for its determination on the pleadings.

Questions of Procedure and Standing.

We are confronted at the outset with several serious questions concerning the procedure by which the plaintiff seeks to raise the important issue of the constitutionality of this Commonwealth's two-tier court system and his standing to do so in the particular circumstances of this case.

1. Purported Interlocutory Appeal. Despite the plaintiff's designation of his petition as an 'INTERLOCUTORY APPEAL,' it is not such in fact or in law. The only interlocutory appeal available to a defendant in a criminal case in this Commonwealth is that provided by G.L. c. 278, § 28E, inserted by St.1967, c. 898, § 1. That statute permits a defendant 'in a felony case' to make application to the Chief Justice or to a single justice of this court for leave to take 'an interlocutory appeal from a decision, order or judgment of the superior court determining a motion to suppress evidence prior to trial.' This case does not come within the quoted statutory language, first, because it involves a misdemeanor and not a felony, and, second, because there has been no 'decision, order or judgment of the superior court' on a 'motion to suppress evidence.'

2. Relief under G.L. c. 211, § 3. The first paragraph of the plaintiff's petition states that the jurisdiction of this court is invoked pursuant to G.L. c. 211, § 3 (as amended by St.1956, c. 707, § 1), ² which provides in part that this court 'shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided' (emphasis supplied). We have indicated in a number of decisions that our power under this statute should be used sparingly, and that it should rarely be used in a case where some other practical remedy is available. In Barron v. Barronian, 275 Mass. 77, 80, 175 N.E. 271 (1931), we characterized a request for relief under this statute as a request 'for extraordinary intervention.' In GILDAY V. COMMONWEALTH, --- MASS. ---, 274 N.E.2D 589 (1971)^A, we said: 'Only in the most exceptional circumstances will we review interlocutory rulings in criminal cases under our general superintendence powers,' and we there exercised the power to avoid an error which 'might be irremediable, and possibly not curable even by a new trial since the defendants could not thereafter be placed in statu quo.' Id. at ---, ^b 274 N.E.2d at 591. In MYERS V. COMMONWEALTH, --- MASS. ---, 298 N.E.2D 819 (1973)^C, and in COREY V. COMMONWEALTH, --- MASS. ---, 301 N.E.2D 450 (1973)^D, we repeated the language quoted above from the Gilday case and then exercised our extraordinary power under § 3 to insure the proper conduct of probable cause hearings in the District Courts on complaints against Myers and Corey before they could be prosecuted in the Superior Court.

A comparison of the facts of the present case with those of the very few cases in which we have exercised our extraordinary powers under G.L. c. 211, § 3, to give relief with respect to interlocutory rulings in criminal cases leads us to conclude that this is not an instance where such relief should be granted.

(a) This is not a case where 'no other remedy is expressly provided.' The constitutional issue the plaintiff now asks us to decide is the same issue which he raised in the District Court, and in the Superior Court by his motion to dismiss. ³ If his motion were denied, and if he were thereafter tried in the Superior Court and found guilty, the plaintiff would have available to him an opportunity for appellate review of the ruling on his motion as matter of right by saving and perfecting exceptions thereto. The single justice properly refused to stay proceedings in the Superior Court for the purpose of enabling the plaintiff to argue before the full court that he had no other remedy. The fact that the plaintiff's constitutional claims could be rendered moot if he were acquitted in the Superior Court would not, in our opinion, prejudice him in such a manner as to warrant the exercise of our 'extraordinary' powers of review under G.L. c. 211, § 3. Barber v. Commonwealth, 353 Mass. 236, 239, 230 N.E.2d 817 (1967).

(b) In challenging the two-tier court system, one of the plaintiff's principal arguments is that it denies him the right to a speedy trial in violation of the Sixth Amendment to the United States Constitution. He appears to argue that this right is violated both by the requirement for an initial nonjury trial to a judge in the District Court and by the fact that even apart from the District Court proceeding 'the time schedule in the Superior Court for (jury) trial of misdemeanors and less serious felonies is deplorable.' The circumstances of this case suggest, however, that the plaintiff is in no position to raise this speedy trial claim. The plaintiff was tried in the District Court on September 6, 1973, within fifteen days after his arrest. His appeal taken on that date was entered in the Superior Court on September 10, 1973. The plaintiff then elected to proceed before the single justice of this court rather than to let his appeal take its course in the Superior Court. When that appeal was reached for trial in the Superior Court on November 15, 1973, he requested that the case not be tried because of his petition pending before the single justice, and when the case was reached again in the Superior Court on March 6, 1974, he did not appear and was defaulted. He has never taken any action in the Superior Court to assert his right to speedy trial. The plaintiff's conduct at all stages of the proceedings indicates that either he or his counsel, or both, have adopted the strategy of delaying a jury trial in favor of their attempts to obtain an interlocutory ruling on the constitutional question they seek to test.

3. Motion to Dismiss Petition. When this case was reached for argument before the full court, the Commonwealth offered and argued a motion that the plaintiff's petition be dismissed because of his failure to appear in the Superior Court when his case was called for trial on his appeal on March 6, 1974, and his resulting default which continued at the time of the argument. As noted above, on filing the present petition the plaintiff had requested a stay of further proceedings on the complaint against him and the stay was denied. He was therefore required to appear for trial of his appeal when it was called in the Superior Court on March 6, 1974. The filing and pendency of his petition in the present case did not relieve him from the obligation to appear. It is not within his power to decide unilaterally that he will prosecute this civil action and, while doing so, fail, neglect or refuse to appear for trial in the Superior Court when required to do so. Under the terms of G.L. c. 278, § 18, on taking his appeal to the Superior Court he was released on personal recognizance 'with condition to appear at the superior court on said return day (of the appeal) and at any subsequent time to which the case may be continued . . . and so from time to time until the final sentence, order or decree.' He was violated that obligation and he is therefore not entitled to the review of interlocutory questions he now seeks. 'By his voluntary act, which renders him unavailable to await the decision of the court, he has waived appellate rights.' Commonwealth v. Rezendes, 353 Mass. 228, 230 N.E.2d 647 (1967). COMMONWEALTH V. RICHARDS, 1 MASS.APP. ---, 296 N.E.2D 709 (1973)^E.

4. Conclusion. on the basis of our discussion above we conclude as follows: (a) that the petition in this case cannot be maintained as an application for an interlocutory appeal, (b) that it cannot be maintained as a petition for the exercise of this court's extraordinary powers...