Duarte v. Commonwealth

Massachusetts Supreme Judicial Court

Duarte v. Commonwealth

708 N.E.2d 656, 429 Mass. 1005, 1999 Mass. LEXIS 140

CourtMassachusetts Supreme Judicial Court

DecidedApril 14, 1999

StatusPublished

Cited by1 cases

This text of 708 N.E.2d 656 (Duarte 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

Duarte v. Commonwealth, 708 N.E.2d 656, 429 Mass. 1005, 1999 Mass. LEXIS 140 (Mass. 1999).

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Opinion

Jose Duarte (petitioner) appeals pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of a petition pursuant to G. L. c. 211, § 3, for relief by a single justice of this court. A Superior Court judge had denied the petitioner’s motion to suppress the identification of him by a certain witness.

The denial of the motion to suppress is an interlocutory ruling for purposes of rule 2:21 (1), so we consider whether the petitioner has met the requirement of subsection 2 of the rule that he “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.” The petitioner contends that there is no method by which he may elicit and make a record of what was said to the witness to persuade him to change his identification other than having him testify at the suppression hearing (which the judge did not allow); and that it is contrary to the interests of justice to allow the case to proceed to trial and (perhaps) to compel the petitioner to have to seek relief after conviction.

We have reviewed the petition for relief pursuant to G. L. c. 211, § 3, and the memorandum filed under rule 2:21. The petitioner does not discuss the alternative course presented by Mass. R. Crim. R 15 (a) (2), as appearing in 422 Mass. 1501 (1996). We conclude that the requirement of rule 2:21 (2) has not been met.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

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Jose Duarte (petitioner) appeals pursuant to S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial of a petition pursuant to G. L. c. 211, § 3, for relief by a single justice of this court. A Superior Court judge had denied the petitioner’s motion to suppress the identification of him by a certain witness.

The denial of the motion to suppress is an interlocutory ruling for purposes of rule 2:21 (1), so we consider whether the petitioner has met the requirement of subsection 2 of the rule that he “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.” The petitioner contends that there is no method by which he may elicit and make a record of what was said to the witness to persuade him to change his identification other than having him testify at the suppression hearing (which the judge did not allow); and that it is contrary to the interests of justice to allow the case to proceed to trial and (perhaps) to compel the petitioner to have to seek relief after conviction.

We have reviewed the petition for relief pursuant to G. L. c. 211, § 3, and the memorandum filed under rule 2:21. The petitioner does not discuss the alternative course presented by Mass. R. Crim. R 15 (a) (2), as appearing in 422 Mass. 1501 (1996). We conclude that the requirement of rule 2:21 (2) has not been met.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

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Bluebook (online)

708 N.E.2d 656, 429 Mass. 1005, 1999 Mass. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duarte-v-commonwealth-mass-1999.

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