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SJC-11746

            DAVID FORLIZZI & another1   vs.   COMMONWEALTH.


                           April 28, 2015.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Criminal, Interlocutory appeal.


     David Forlizzi and Fred Battista appeal from a judgment of
a single justice of this court denying their petition pursuant
to G. L. c. 211, § 3. The petition sought relief from the
orders of a Superior Court judge denying their motions to
dismiss indictments and from the judge's decision not to conduct
an evidentiary hearing on their motions. The single justice
denied the petition. We affirm.

     Background. Forlizzi has been indicted on charges of
obstruction of justice, in violation of G. L. c. 268, § 13B;
three counts of corruption of a witness, in violation of G. L.
c. 268A, § 2 (c); three counts of subornation of perjury, in
violation of G. L. c. 268, § 2; and multiple counts of
conspiracy to violate those same laws, G. L. c. 274, § 7. He
also has been indicted as a habitual offender, in violation of
G. L. c. 279, § 25. Battista faces similar charges. These
indictments arise out of the petitioners' alleged misconduct in
connection with a prior trial involving alleged insurance fraud.

     In the Superior Court, Forlizzi (joined by Battista) moved
to dismiss the indictments, alleging that, during the
investigation leading to the indictments, the Commonwealth had
engaged in prosecutorial misconduct. They claimed that the
Commonwealth caused the grand jury to subpoena the bank records

    1
       Fred Battista. Battista has joined in the memorandum
filed by David Forlizzi.
                                                                   2


of trial counsel in violation of Mass. R. Prof. C. 3.8 (f), 426
Mass. 1397 (1998), and that the Attorney General improperly
obtained counsels' tax records though the insurance fraud
bureau. A Superior Court judge denied the motion, concluding
that the proscription of rule 3.8 (f) does not apply to third-
party record holders such as banking institutions, but that the
mechanism used by the prosecutors to obtain the attorneys' tax
records constituted overreaching. The judge determined,
however, that dismissal of the indictments as a sanction was not
warranted in the circumstances. Forlizzi thereafter filed a
second motion to dismiss, which also was denied. The judge
reasoned that Forlizzi "has not demonstrated that the
Commonwealth engaged in conduct designed to interfere with [his]
. . . right [under the Sixth Amendment to the United States
Constitution] to counsel of choice, nor has he persuaded the
[c]ourt that an evidentiary hearing would likely produce
evidence to establish his claim."

     The petitioners next filed their petition in the county
court pursuant to G. L. c. 211, § 3, seeking interlocutory
review of those rulings. A single justice of this court
concluded that the petitioners had not shown they were entitled
to extraordinary relief. She considered the Superior Court
judge's decision and, "inter alia, for the reasons stated by the
judge in his detailed written decision," ordered that the
petition for extraordinary relief be denied.

     The case is now before us pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001). That rule applies where, as
here, a single justice has denied relief from challenged
interlocutory rulings in the trial court, and requires a
petitioner 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." Id. In this case, the petitioners contend that relief
"cannot be obtained after trial because further trial court
proceedings stand to fatally compromise [the petitioners']
constitutional right to counsel of [their] choice."

     Discussion. We have said repeatedly that the "denial of a
motion to dismiss pursuant to Mass. R. Crim. P. 13[, as
appearing in 442 Mass. 1516 (2004),] is not appealable . . .
until after trial," and that G. L. c. 211, § 3, "may not be used
to circumvent our rule." Ventresco v. Commonwealth, 409 Mass.
82, 83 (1991). "[T]he rights of criminal defendants are
generally fully protected through the regular appellate
process." Costarelli v. Commonwealth, 374 Mass. 677, 679
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(1978). In truly extraordinary circumstances, however, where a
petitioner demonstrates "both a substantial claim of violation
of his substantive rights and irremediable error, such that he
cannot be placed in status quo in the regular course of appeal,"
Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980), a single
justice may exercise the court's power under G. L. c. 211, § 3,
to authorize interlocutory review. In such a case, the single
justice may decide the issues presented, report the matter to
the full court, Ventresco, supra, or authorize an interlocutory
appeal to be taken to the Appeals Court for a decision on the
merits. Commonwealth v. Jansen, 459 Mass. 21, 23 (2011); Fadden
v. Commonwealth, 376 Mass. 604 (1978), cert. denied, 440 U.S.
961 (1979).

     Here, we affirm the single justice's denial of the petition
on the ground that the petitioners failed to demonstrate
irremediable error, the second Morrissette factor, which
coincides with the petitioners' obligations under rule 2:21.
See Cook v. Carlson, 440 Mass. 1025, 1026 n.2 (2003); White v.
Commonwealth, 439 Mass. 1017, 1017 n.1 (2003). The fact that
the single justice considered the substantive merits of the
interlocutory orders does not require that we do likewise.
White, supra. We express no opinion on the substantive merits
of the petition at this interlocutory stage.

     The petitioners' claims generally involve due process
considerations, alleged violations of the attorney-client
relationship, and infringement on the right to counsel. They
have not, as is their burden, demonstrated that those claims
involve violation of any right that cannot be remedied in a
direct appeal if and when the petitioners are convicted. See
Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002) (due
process claims); Doe v. Commonwealth, 435 Mass. 1001, 1001 n.1
(2001) (violation of attorney-client relationship); Barber v.
Commonwealth, 353 Mass. 236 (1967) (Sixth Amendment rights).
None of the petitioners' claims implicates "a right not to be
tried," a right we have protected by according interlocutory
review. See Flood v. Commonwealth, 465 Mass. 1015, 1017 (2013)
(double jeopardy claims and sexually dangerous persons trials).
See also Soucy v. Commonwealth, 470 Mass. 1025, 1025 (2015), and
cases cited.

                                   Judgment affirmed.

     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Robert M. Goldstein for David Forlizzi.
