Cousino v. Commonwealth

877 N.E.2d 543, 450 Mass. 1010, 2007 Mass. LEXIS 794

• Court: Massachusetts Supreme Judicial Court
• Decided: December 6, 2007
• Status: Published

Opinion

Edward W. Cousino, HI, appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.

The case was submitted on the papers filed, accompanied by a memorandum of law. Joseph A. Hanofee for the plaintiff.

Cousino is charged with rape of a child and other crimes. Pursuant to the protocol we announced in Commonwealth v. Dwyer, 448 Mass. 122, 139-147 (2006), Cousino moved that a summons issue for production of certain counsel-ling and therapy records held by a third party. The judge determined that Cousino had not made the threshold showing required by that protocol, id. at 147-148 (Appendix) (concerning affidavit, hearing, and findings under Commonwealth v. Lampron, 441 Mass. 265 [2004]), and denied Cousino’s motion. Cousino’s G. L. c. 211, § 3, petition followed.

The case is now before us on Cousino’s memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires Cousino to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Cousino has not done so. As we have explained, relief from the improper denial of a summons under the Dwyer protocol can be obtained in the ordinary appellate process. Rodriguez v. Commonwealth, 449 Mass. 1029, 1030 (2007). Cousino has not shown otherwise. The single justice did not err or abuse his discretion in denying relief under G. L. c. 211, § 3.

Judgment affirmed.