Brown v. Commonwealth

837 N.E.2d 250, 445 Mass. 1016, 2005 Mass. LEXIS 566

• Court: Massachusetts Supreme Judicial Court
• Decided: November 17, 2005
• Status: Published

Opinion

Terrance Brown appeals from a judgment entered by a single justice of this court denying his petition for relief pursuant to G. L. c. 211, § 3. We affirm.

Brown is a codefendant with Nathan Rivera in a pending homicide case. At Rivera’s request, a judge in the Superior Court ordered that Brown submit to a buccal swab for deoxyribonucleic acid (DNA) analysis.¹ Brown unsuccessfully challenged that order in the county court. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Brown claims that he cannot obtain adequate review on appeal because by then the seizure — the swabbing of his cheek — will already have occurred. We rejected the same argument in White v. Commonwealth, 439 Mass. 1017 (2003). See Matter of a Grand Jury Investigation, 435 Mass. 1002, 1003 (2001) (rejecting same argument concerning blood sample). See also Glawson v. Commonwealth, 436 Mass. 1007 (2002) (blood and hair samples); Cummins v. Commonwealth, 433 Mass. 1005, 1006 (2001) (blood sample). Accordingly, Brown has failed to meet his burden under rule 2:21.

Judgment affirmed.

1 See Jansen, petitioner, 444 Mass. 112, 113 n.2 (2005) (buccal swab involves rubbing swab on inside of cheek).