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18-P-97                                                   Appeals Court

                     COMMONWEALTH   vs.   BRIAN VINES.1


                               No. 18-P-97.

         Plymouth.        November 7, 2018. - January 11, 2019.

                Present:     Agnes, Blake, & Neyman, JJ.


Jury and Jurors. Practice, Criminal, Jury and jurors,
     Postconviction relief, Interlocutory appeal, New trial.



     Indictments found and returned in the Superior Court
Department on December 15, 2015.

     The cases were tried before Cornelius J. Moriarty, II, J.,
a motion for the release of juror information was heard by him,
and a motion for reconsideration was considered by him.


     Paul C. Brennan for the defendant.
     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.


     BLAKE, J.       Following his convictions2 by a jury in the

Superior Court, the defendant, Brian Vines, filed a notice of


     1   Also known as Brian K. Davis.

     2 After a trial by jury, the defendant was convicted of
armed assault with intent to rob a person older than sixty
                                                                   2


appeal and, subsequently, a series of motions seeking, inter

alia, certain information about the jurors seated in his trial,

for use in support of a motion for postconviction relief.   In

his first motion, the defendant sought the names, addresses, and

dates of birth of the jurors.   The motion was allowed as to the

names of the jurors only.3   Approximately five months later, a

different attorney filed what he captioned a "Renewed Motion of

the Defendant for the Release of Juror Information" seeking the

same information as the first motion.   After the Commonwealth

filed its opposition, the defendant filed a reply memorandum

clarifying that he was seeking the addresses and the dates of

birth of the jurors that were seated in his case based on the

list of jurors in the venire who appeared for jury selection at

that time of his trial.   After a hearing, the motion was denied

and the defendant noticed an appeal from the order.   The

defendant then filed a motion for reconsideration, which was

denied, and he also appealed from that order.4



years, assault and battery on an elderly or disabled person
causing serious bodily injury, armed robbery, and aggravated
assault and battery by means of a dangerous weapon. After a
jury-waived trial, the defendant was convicted as a habitual
offender on the four indictments.

     3 The judge acting on all posttrial motions was also the
trial judge.

     4 The defendant's direct appeal has been vacated without
prejudice to reentry after disposition of this appeal and the
conclusion of any other posttrial motions.
                                                                   3


     The defendant claims that the judge abused his discretion

in denying the motions, and that the orders, in essence, were

orders of impoundment not supported by good cause.   At oral

argument before this court, the Commonwealth raised for the

first time the question whether these orders are interlocutory

and therefore not immediately appealable.5   If so, then we are

without subject matter jurisdiction and the appeal must be

dismissed.   See Commonwealth v. Swist, 38 Mass. App. Ct. 907,

908-909 (1995), cert. denied, 516 U.S. 886 (1995) (appeal

dismissed for lack of subject matter jurisdiction on review of

interlocutory order).   For the reasons that follow, we conclude

that a postconviction motion for juror information is in the

nature of a request for postconviction discovery related to a

motion for new trial, and therefore interlocutory and not

appealable until a motion for new trial has been filed and

decided in the trial court.   Accordingly, we dismiss the appeal.

     Discussion.   The defendant claims that he needs the juror

information in order to contact the seated jurors pursuant to

the procedures set forth in Commonwealth v. Moore, 474 Mass.




     5 Because "[s]ubject matter jurisdiction cannot be conferred
by consent, conduct or waiver," it may be raised for the first
time on appeal. Litton Business Sys. v. Commissioner of
Revenue, 383 Mass. 619, 622 (1981), citing Second Bank-State St.
Trust Co. v. Linsley, 341 Mass. 113, 116 (1960).
                                                                     4


541, 551-552 (2016).    His stated grounds are that he is in

possession of correspondence from a seated juror that raises

questions whether there were extraneous influences from pretrial

publicity that may have had an impact on individual jurors.      The

defendant moved for, and was granted, a stay of his direct

appeal in order to pursue the issue whether extensive pretrial

publicity provided grounds for a new trial.6

     While there are no cases that explicitly address the nature

of the motions before us, we look for guidance to those cases

involving a request for postconviction discovery because the

defendant's motion seeks information that may be material and

relevant to a motion for new trial.    See Mass. R. Crim. P.

30 (c) (4), as appearing in 435 Mass. 1501 (2001); Mass. G.

Evid. § 606 (2018).    "The purpose of postconviction discovery is

to allow a defendant to gather evidence to support an apparently

meritorious claim . . . [where] the evidence that can be adduced

to support the claim is unknown to the court" (quotations

omitted).    Commonwealth v. Ware, 471 Mass. 85, 94 (2015),

quoting Commonwealth v. Daniels, 445 Mass. 392, 406 (2005).      See

Commonwealth v. Werner, 81 Mass. App. Ct. 689, 693 (2012),

quoting Daniels, supra at 407 (judge may order postverdict

discovery if defendant makes "a sufficient showing that the


     6   Subsequently, the appeal was dismissed.   See note 4.
                                                                    5


discovery is reasonably likely to uncover evidence that might

warrant granting a new trial").   Although not every meritorious

claim entitles a defendant to a new trial, the defendant's

attempt here to gather the evidence that may enable him to make

the necessary showing is comparable to a postconviction

discovery request.7   See Commonwealth v. DiCicco, 470 Mass. 720,

736, 739 (2015) (order denying new trial affirmed where newly

discovered deoxyribonucleic acid [DNA] evidence would not have

cast meaningful doubt on verdict); Commonwealth v. Morgan, 453

Mass. 54, 63 (2009) (order denying new trial affirmed where

defendant merely speculated that DNA evidence at trial was

inaccurate).8


     7 When requesting postconviction discovery, a defendant by
affidavit "must make a sufficient showing that the discovery is
reasonably likely to uncover evidence that might warrant
granting a new trial." Daniels, 445 Mass. at 407. See
Commonwealth v. Morgan, 453 Mass. 54, 62 (2009) (allegations
should be specific and show how requested discovery might yield
evidence important to jury in their deliberations and
conclusions); Commonwealth v. Martinez, 437 Mass. 84, 97 (2002)
(affidavit must establish prima facie case for relief for judge
to authorize postconviction discovery).

     8 By statute, orders denying motions for postconviction
access to forensic and scientific analysis, are "final and
appealable." See G. L. c. 278A, § 18. These are fundamentally
distinct from the nature of the motions before us. General Laws
c. 278A was enacted in 2012 as a result of significant changes
and advancements in the field of DNA evidence. St. 2012, c. 38.
See Commonwealth v. Donald, 468 Mass. 37, 46 (2014) ("the
Legislature clearly intended to allow access to more
sophisticated forensic and scientific tests than were available
at the time of a moving party's trial"). In Commonwealth v.
Wade, 467 Mass. 496, 505 (2014), the Supreme Judicial Court held
                                                                   6


       Generally speaking "discovery orders are interlocutory."

Cronin v. Strayer, 392 Mass. 525, 528 (1984)    See Black's Law

Dictionary 1271 (10th ed. 2014) (defining interlocutory order as

"[a]n order that relates to some intermediate matter in the

case; any order other than a final order").    "[A]n aggrieved

litigant cannot as a matter of right pursue an immediate appeal

from an interlocutory order unless a statute or rule authorizes

it."    Ruggiero v. Giamarco, 73 Mass. App. Ct. 743, 746 (2009),

quoting Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671,

673-674 (2008).   This is because interlocutory orders are not

"final orders" (quotations and citation omitted), Brum v.

Dartmouth, 428 Mass. 684, 687 (1999), and finality is important

to prevent piecemeal litigation causing delay and wasting

judicial efforts on questions that may turn out to be

unimportant.   Borman v. Borman, 378 Mass. 775, 779 (1979),

citing Vincent v. Plecker, 319 Mass. 560, 564 n.1 (1946).     There

are "limited exceptions to this rule" of finality not relevant

here.   Ruggiero, supra.   Accordingly, this court is bound by the

"general rule of practice so early announced, so frequently

reiterated and so constantly followed, and so manifestly in the



that such a motion "is conceived as separate from the trial
process and any postconviction proceedings challenging the
underlying conviction." Here, the defendant's motions are not
related to scientific evidence and therefore are not comparable
to a final and appealable order pursuant to G. L. c. 278A.
                                                                    7


interest of parties litigant and the general public . . . that

. . . [interlocutory rulings] will not be considered until the

case is ripe for final judgment."   Pollack v. Kelly, 372 Mass.

469, 470-471 (1977), quoting Weil v. Boston Elevated Ry., 216

Mass. 545, 549 (1914).   Cf. Patel v. Martin, 481 Mass. 29, 36

(2018) (no right to immediate appeal from a civil discovery

order under doctrine of present execution).

    The same aversion to appellate review of interlocutory

orders applies where an interlocutory order concerns a

postconviction ruling.   See Scott v. Commonwealth, 479 Mass.

1034, 1035 (2018) (affirming order denying G. L. c. 211, § 3,

petition that sought review of order denying postconviction

access to confidential juror questionnaires).   And, importantly,

rule 30, the rule governing both postconviction relief and

discovery related to postconviction relief, authorizes an appeal

from only "a final order."   Mass. R. Crim. P. 30 (c) (8), as

appearing in 435 Mass. 1501 (2001).   The "final" order

contemplated by rule 30 (c) (8) is an order granting or denying

postconviction relief.   See Tavares v. Commonwealth, 478 Mass.

1024, 1024-1025 (2018) (order denying motion for postconviction

discovery properly challenged in connection with appeal from

order denying motion for new trial); Celester v. Commonwealth,

440 Mass. 1035, 1036 (2004) (because order denying request for

funds was interlocutory, defendant may challenge it in context
                                                                    8


of appeal from order denying motion for new trial); Donald v.

Commonwealth, 437 Mass. 1007, 1007 (2002) ("established route

for the [defendant] to obtain appellate review of the denial of

his motion for postconviction discovery would be in connection

with an appeal from the denial of his motion for a new trial"

authorized by Mass. R. Crim. P. 30 [c] [8]).

    Thus, without addressing the viability of the defendant's

motion, the defendant is not without a remedy.   In the ordinary

course, the defendant may pursue his motion in conjunction with

a motion for new trial.   See Commonwealth v. Murphy, 86 Mass.

App. Ct. 118, 121 n.6 (2014) ("A motion for new trial is the

recognized route for raising postverdict claims because it

permits a clarified record to serve as a basis for the judge's

decision and for appellate review").    Should the defendant be

able to obtain a new trial with the information currently in his

possession, the requested postconviction discovery (and this

appellate litigation) will be unnecessary.    If, however, the

motion for new trial is denied, the defendant may appeal that

order and challenge in that appeal the order denying his motion

for juror information.    Where, as here, the defendant's direct

appeal has not been decided, he may also seek to consolidate his

direct appeal and the ruling on his motion for new trial, as

well as the rulings on the motions at issue here.    See

Commonwealth v. Erdely, 430 Mass. 149, 154 (1999).    That he has
                                                                        9


received correspondence from a seated juror does not change the

character of what he seeks, i.e., postconviction discovery in

support of an anticipated motion for new trial.

     We pause to note that a properly filed motion for juror

information requires a judge to conduct a two-step analysis.

General Laws c. 234A, § 67, requires that a list of all jurors

summonsed to jury service be available for inspection by the

parties, counsel, their agents, and members of the public.        See

Commonwealth v. Fujita, 470 Mass. 484, 487 (2015).     Such lists

are public records and may only be impounded if a judge finds

good cause exists for impoundment.9    Id. at 489.   Attorney-

initiated postverdict contact with jurors is no longer

prohibited.   Moore, 474 Mass. at 544.    Indeed, the Supreme

Judicial Court set out a protocol for attorneys and judges to

follow in considering requests for juror information.     Id. at

551-552.   Here, we observe that the judge may have conflated

these two separate and distinct procedures.     While we do not

reach the merits of the issue, we caution that upon any

subsequently filed motion, a two-step analysis is required.

                                      Appeal dismissed.




     9 Because the defendant's argument that the order denying
the release of juror information is tantamount to an order of
impoundment is not properly before us, we need not reach that
question.
