Commonwealth v. McGrath

May 25, 2017

SJC 11909

Versions:74 N.E.3d 1259

477 Mass. 1009

responded with an eleven-page statement of issues, in which he argues essentially that the gatekeeper process leads to arbitrary results and, more particularly, that his appeal was not allowed to proceed whereas other defendants’ appeals were.¹ This is merely a recasting of the equal protection challenge we rejected in Napolitano v. Attorney Gen., 432 Mass. 240, 241-242 (2000). We reject it again here. Robinson received plenary review of his convictions under § 33E on direct appeal, and he has offered no reason to suppose that his seventh motion for a new trial raised any new and substantial issue that was not or could not have been presented in any of the previous six. There is no hint of arbitrariness in this case. He also has not offered any reason to believe that the “single justice erred by denying [his] gatekeeper petition on procedural grounds.” Commonwealth v. Nassar, 454 Mass. 1008, 1009 n.2 (2009). Finally, we reject Robinson‘s argument that § 33E does not bar an appeal from the decision of the gatekeeper. “The special function of the single justice mandated by the statute would be futile and meaningless if his or her rulings were subject to appeal before the full court.” Commonwealth v. Companiono, 472 Mass. 1004, 1005 (2015), quoting Leaster v. Commonwealth, 385 Mass. 547, 548 (1982). We see no reason to depart from our longstanding and well-established rule. See Companiono, supra, and cases cited.²

Appeal dismissed.

The case was submitted on briefs.

David J. Nathanson for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

George McGrath purports to appeal from the decision of a single justice of this court, pursuant to the gatekeeper provision of G. L. c. 278, § 33E, denying leave to appeal from the denial of his motion for a new trial on charges of murder in the first degree and assault with intent to rob.¹ “A defendant who is denied leave to appeal from a single justice acting as a gatekeeper . . . has no right to appeal from the single justice‘s ruling denying leave. The single justice‘s ruling is ‘final and unreviewable.‘” Commonwealth v. Companiono, 472 Mass. 1004, 1005 (2015), quoting Commonwealth v. Gunter, 456 Mass. 1017, 1017 (2010), S.C., 459 Mass. 480, cert. denied, 565 U.S. 868 (2011). We see no reason to depart from this longstanding rule. See Commonwealth v. Robinson, 477 Mass. 1008 (2017).

Appeal dismissed.

The case was submitted on briefs.

Kathleen M. McCarthy for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

The petitioner appeals from a judgment of the county court denying her petition for relief under G. L. c. 211, § 3. We affirm the judgment.

The petitioner, who was a Boston police officer, filed an application for a criminal complaint in the West Roxbury Division of the Boston Municipal Court (BMC), alleging that the respondent, her supervisor, committed an assault and battery against her. The respondent was the commander of the police station falling within that court‘s jurisdiction. After a hearing, a clerk-magistrate denied the application for lack of probable cause. G. L. c. 218, § 35A. The petitioner moved for reconsideration and change of venue. The application was transferred to the Charlestown Division of the BMC for rehearing by a clerk-magistrate, although it appears that the application was not docketed until almost one year later. The petitioner requested that the matter be transferred out of Suffolk County to Bristol County. That request was denied. The respondent also requested a new hearing and change of venue on the ground that he had a business relationship with all the divisions of the BMC. As a result, the application was transferred to the Dedham Division of the District Court Department, nearly three years after the application was transferred to the Charlestown Division of the BMC.¹ A clerk-magistrate of that court denied the application, finding no probable cause. The petitioner then filed her G. L. c. 211, § 3, petition, seeking both a rehearing on her application and a broader ruling requiring that applications for criminal complaints made against police officers be automatically transferred to a judge outside the police officer‘s jurisdiction, rather than being heard by a clerk-magistrate in the first instance. The single justice denied relief without a hearing.

We review the single justice‘s denial of relief only to determine whether there was an abuse of discretion or an error of law. Marides v. Rossi, 446 Mass. 1007, 1007 (2006), citing Restucci v. Appeals Court, 442 Mass. 1031, 1032 (2004). The petitioner has not demonstrated any error or abuse of discretion as to either of her claims.

Notes

It appears that Robinson intended the memorandum to apply to both his own appeal and that of his codefendant, who similarly purports to appeal from a decision of the gatekeeper. See . He incorrectly asserts that we issued identical orders to him and to his codefendant, affording each of them five pages. In fact, we issued one order, to Robinson alone. McGrath‘s convictions were affirmed on direct appeal after plenary review. . In addition, we reversed the allowance of McGrath‘s previous motion for a new trial. , cert. denied, . The nearly three-year delay in the Charlestown Division of the Boston Municipal Court Department is unacceptable. There is no excuse for this period of delay in any case scheduled for a clerk-magistrate‘s hearing. See G. L. c. 218, § 35A. The delay in this case is particularly troubling. The parties and the community are not just entitled to a fair and just adjudication of this matter. The perception of justice must also be scrupulously protected. Here, it was not. As a result, no matter how just the result in this case may be, to the petitioner and perhaps others, justice is tainted by the delay.

Robinson‘s reliance on , is misplaced. That case involved a direct appeal from a conviction of murder in the second degree and from an order denying a motion to reduce the verdict, not a final and unreviewable decision of the gatekeeper pursuant to G. L. c. 278, § 33E.