Cousin v. Commonwealth

Massachusetts Supreme Judicial Court

Cousin v. Commonwealth

817 N.E.2d 767, 442 Mass. 1046, 2004 Mass. LEXIS 744

CourtMassachusetts Supreme Judicial Court

DecidedNovember 19, 2004

StatusPublished

Cited by10 cases

This text of 817 N.E.2d 767 (Cousin v. Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cousin v. Commonwealth, 817 N.E.2d 767, 442 Mass. 1046, 2004 Mass. LEXIS 744 (Mass. 2004).

Pincite

Opinion

Criminal charges are pending against Cousin in the Superior Court. He moved to sever his trial from that of a codefendant because the codefendant’s change of counsel resulted in a delay that threatened to deprive Cousin of his right to a speedy trial. The Superior Court judge denied the motion for severance on the ground that “the interests of justice in trying the codefendants together out weigh [íí'c] Mr. Cousin’s understandable desire to try this case in June, [20]04.”

Cousin has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). He argues that he cannot obtain adequate review of the judge’s adverse ruling other than through G. L. c. 211, § 3, because if he is tried and convicted and the denial of the motion for severance is reversed on appeal, an order for a new trial would not provide an adequate remedy for the loss of his right to a speedy trial. This argument is unavailing. There is no entitlement, as of right, to review of an interlocutory order seeking to enforce the right to a speedy trial where the single justice neither decides the issue nor reports the matter to the full court. See Esteves v. Commonwealth, 434 Mass. 1003, 1005 (2001) (affirming denial of petition seeking review of motion to dismiss on speedy trial ground). If Cousin is convicted, and if he has in fact suffered a violation of his right to a speedy trial, an appellate court can order that the indictments be dismissed. See, e.g., Commonwealth v. Spaulding, 411 Mass. 503 (1992) (ordering dismissal of indictments on speedy trial ground on postconviction appeal). Moreover, Cousin [1047]*1047can still move in the Superior Court to dismiss the indictments on the speedy trial ground.¹

The case was submitted on the papers filed, accompanied by a memorandum of law. Willie J. Davis for the plaintiff.

In these circumstances, Cousin has not shown that “review of the trial court decision cannot adequately be obtained on appeal” from any conviction. S.J.C. Rule 2:21 (2). Accordingly, he has not sustained his burden under rule 2:21.

Judgment affirmed.

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Criminal charges are pending against Cousin in the Superior Court. He moved to sever his trial from that of a codefendant because the codefendant’s change of counsel resulted in a delay that threatened to deprive Cousin of his right to a speedy trial. The Superior Court judge denied the motion for severance on the ground that “the interests of justice in trying the codefendants together out weigh [íí'c] Mr. Cousin’s understandable desire to try this case in June, [20]04.”

Cousin has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). He argues that he cannot obtain adequate review of the judge’s adverse ruling other than through G. L. c. 211, § 3, because if he is tried and convicted and the denial of the motion for severance is reversed on appeal, an order for a new trial would not provide an adequate remedy for the loss of his right to a speedy trial. This argument is unavailing. There is no entitlement, as of right, to review of an interlocutory order seeking to enforce the right to a speedy trial where the single justice neither decides the issue nor reports the matter to the full court. See Esteves v. Commonwealth, 434 Mass. 1003, 1005 (2001) (affirming denial of petition seeking review of motion to dismiss on speedy trial ground). If Cousin is convicted, and if he has in fact suffered a violation of his right to a speedy trial, an appellate court can order that the indictments be dismissed. See, e.g., Commonwealth v. Spaulding, 411 Mass. 503 (1992) (ordering dismissal of indictments on speedy trial ground on postconviction appeal). Moreover, Cousin [1047]*1047can still move in the Superior Court to dismiss the indictments on the speedy trial ground.¹

The case was submitted on the papers filed, accompanied by a memorandum of law. Willie J. Davis for the plaintiff.

In these circumstances, Cousin has not shown that “review of the trial court decision cannot adequately be obtained on appeal” from any conviction. S.J.C. Rule 2:21 (2). Accordingly, he has not sustained his burden under rule 2:21.

Judgment affirmed.

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Bluebook (online)

817 N.E.2d 767, 442 Mass. 1046, 2004 Mass. LEXIS 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cousin-v-commonwealth-mass-2004.

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