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SJC-11840

              COMMONWEALTH   vs.   AARON HERNANDEZ.


                         March 26, 2015.


Supreme Judicial Court, Superintendence of inferior courts.
     Homicide. Firearms. Evidence, Firearm, Relevancy and
     materiality. Practice, Criminal, Capital case,
     Interlocutory appeal.


     The defendant is presently on trial in the Superior Court
on indictments charging murder in the first degree and various
firearms offenses. The Commonwealth filed a motion in limine
before trial seeking to establish the admissibility of testimony
from a particular witness, Robert Paradis, as to certain
conversations that he had with the defendant. After the trial
began, and after conducting a hearing on the motion that
included a voir dire of Paradis, the trial judge denied the
motion on February 18, 2015. Nineteen days later, on March 9,
2015, the Commonwealth sought relief from a single justice of
this court pursuant to G. L. c. 211, § 3.1 The single justice

    1
       The Commonwealth did not include with its G. L. c. 211,
§ 3, petition copies of its motion in limine or the defendant's
opposition to the motion. Those papers were thus not a part of
the record before the single justice. In seeking relief
pursuant to G. L. c. 211, § 3, it was the Commonwealth's burden,
as a petitioner, to create a record that included all of the
relevant pleadings, motions, and other parts of the trial court
record pertaining to the disputed issue. Gorod v. Tabachnick,
428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003 (1998). Nor
did the Commonwealth provide a written transcript of the hearing
on its motion. It did provide a video recording, which we have
viewed, of a portion of the hearing, which we are informed (by
the defendant) was downloaded from www.youtube.com.
denied the petition on March 11, 2015. Six days after that, on
March 17, the Commonwealth filed a notice of appeal from the
single justice's ruling, and on the following day, March 18,
2015, filed a memorandum in this court pursuant to S.J.C. Rule
2:21, as amended, 434 Mass. 1301 (2001).2 Pursuant to an order
of this court issued the same day, the defendant then filed, on
March 23, 2015, his response to the Commonwealth's memorandum.3
We have considered the papers, and, for the reasons that follow,
affirm the decision of the single justice.

     Proffered testimony. Based on the voir dire of Paradis, he
would have testified at trial that he was in California for
several days with the defendant, as the defendant's guest,
approximately six weeks prior to the murder of the victim.
While riding in an automobile being driven by the defendant,
Paradis heard the defendant reference "heat" or "fire," and say
that he had "heat" or "fire" under his seat, which Paradis took
to mean that the defendant had a firearm under the driver's seat
in the automobile. Paradis also heard the defendant say that he
had a ".45," the caliber weapon that was subsequently used to
kill the victim in this case.

     The defendant left California the day before Paradis. That
day, while on his way to the airport, the defendant called
Paradis and asked him to check a dresser or nightstand drawer in
a bedroom in the defendant's condominium unit where they had
been staying to see if "it" was there. In the drawer Paradis
found a black T-shirt. He picked up the shirt and felt
something wrapped inside it. Although he did not unwrap the
shirt, he determined that what was wrapped inside was a firearm.
He told the defendant that "it" was still there. There is no
indication that Paradis removed the items from the drawer (other
than to pick up the T-shirt and feel what was wrapped inside).

    2
       The Commonwealth also purported to refile its petition
under G. L. c. 211, § 3, directly to the full court. "The
standard of review is the same under either procedure, namely,
whether the single justice has abused his discretion. See
Commonwealth v. Dunigan, 384 Mass. 1, 5 (1981)." Commonwealth
v. Yelle, 390 Mass. 678, 685 n.5 (1984). See Planned Parenthood
League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 709
n.7 (1990).
    3
       The defendant also filed a motion to expand the record.
On March 24, 2015, the day after the defendant filed his papers,
the Commonwealth filed an "opposition" to the defendant's
response.
     Discussion. The Commonwealth has focused its submissions
exclusively on the merits of the judge's ruling denying its
motion in limine. It has made no argument concerning the
propriety of using this court's extraordinary power of general
superintendence to seek review of that ruling.

     It is true that the Commonwealth cannot obtain appellate
review of the trial judge's ruling by means other than G. L.
c. 211, § 3. That, however, "is not dispositive of the question
whether the use of G. L. c. 211, § 3, [is] appropriate in these
circumstances." Commonwealth v. Snow, 456 Mass. 1019, 1019
(2010). "[T]he fact that the Commonwealth has no other remedy
does not make [G. L.] c. 211, § 3, review automatic."
Commonwealth v. Richardson, 454 Mass. 1005, 1005 (2009), quoting
Commonwealth v. Cook, 380 Mass. 314, 319 (1980). The
extraordinary power of general superintendence under the statute
is meant for truly extraordinary situations. To be sure, "[w]e
have rarely allowed Commonwealth appeals of interlocutory
matters under our supervisory powers," and we have said that
"[w]e will review interlocutory matters in criminal cases only
when 'substantial claims' of 'irremediable' error are presented
. . . and only in 'exceptional circumstances' . . . where 'it
becomes necessary to protect substantive rights.'" (Citations
omitted.) Commonwealth v. Cook, supra at 319–320. In
particular, we have held that the extraordinary power of general
superintendence is not to be used, as the Commonwealth seeks to
use it here, simply to second guess a trial judge's routine
evidentiary rulings:

    "To accept this view would give the Commonwealth a right to
    interlocutory relief as to every adverse evidentiary ruling
    made by a trial judge. The Commonwealth's argument proves
    too much. General Laws c. 211, § 3, relief is not a means
    for second-guessing a trial judge's evidentiary
    rulings. . . . To accept the argument of the Commonwealth
    would be to create a potential for disruption of every
    criminal trial where a disgruntled prosecutor could cause
    the stay of the proceeding, pending appellate review of
    evidentiary rulings. Such a principle would hardly be
    consistent with the mandate of G. L. c. 211, § 3, that this
    court act 'to correct and prevent errors and abuses' in the
    administration of justice or with our well-settled practice
    of affording relief under that section 'sparingly [and]
    "[o]nly in the most exceptional circumstances"' (citations
    omitted)."
Commonwealth v. Yelle, 390 Mass. 678, 686-687 (1984).

     The Commonwealth has not shown that this case presents the
type of exceptional circumstances that required the single
justice to employ the court's general superintendence power, or
that require the full court to do so. To the contrary, the
trial judge's ruling denying the Commonwealth's motion in limine
and excluding Paradis's testimony was a routine ruling on a
relatively routine evidentiary matter. Trial judges throughout
the Commonwealth make rulings like this daily. It is a highly
fact-specific, case-specific ruling, not one that is likely to
have any wide-ranging impact beyond this case. Nor has the
Commonwealth shown that the ruling is one that will prevent it
from fairly prosecuting its case. In short, it is not something
that compels consideration under G. L. c. 211, § 3.

     In any event, as did the single justice before us, we have
carefully reviewed the trial judge's ruling, the stated bases
for her ruling, and the arguments presented by both sides. We
discern no error. The judge's conclusion that, in essence, the
prejudicial effect of the evidence in question outweighed its
probative value was quintessentially a matter "'entrusted to
[her] broad discretion and [will not be] disturbed absent
palpable error.'" Commonwealth v. Sylvia, 456 Mass. 182, 192
(2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 578–579
(2001). In particular, the judge determined that no basis
existed to find that the firearm that Paradis felt wrapped in
the shirt was the murder weapon. She acknowledged that the
Commonwealth did not have to have direct evidence to this
effect, but properly concluded that there had to be at least
some evidence that the defendant had access to this weapon at
the time of the murder in Massachusetts. There was no such
evidence. Paradis's testimony demonstrates that the defendant
left California without the weapon, and there was no other
evidence suggesting that someone else brought the weapon, or
that the defendant had it shipped, to Massachusetts.
Furthermore, the judge's ruling was but one of numerous
evidentiary rulings, related to but one piece of evidence, that
she had made, and will continue to make, throughout the
defendant's trial, including rulings on other firearm-related
evidence. As the trial judge, she is best suited to determine
what evidence is admissible, or not, and on what basis.

     Conclusion. The Commonwealth has failed to demonstrate on
appeal that the single justice committed a clear error of law or
abused his discretion when he denied the Commonwealth's
petition.   The judgment of the single justice is therefore
affirmed.

                                    So ordered.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Roger L. Michel, Jr., Assistant District Attorney, for the
Commonwealth.
     Michael K. Fee & James L. Sultan for the defendant.
