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SJC-12211

                PAULO TAVARES   vs.   COMMONWEALTH.


                        February 5, 2018.


Supreme Judicial Court, Superintendence of inferior
     courts. Practice, Criminal, Discovery, Postconviction
     relief, Capital case.


     Paulo Tavares appeals from a judgment of the county court
denying his petition for relief under G. L. c. 211, § 3. We
affirm the judgment.

     Tavares has been convicted by a jury of murder in the first
degree and other offenses. Before trial, Tavares successfully
moved to suppress evidence of surreptitiously recorded
conversations between him and a confidential informant. We
affirmed the suppression order on the Commonwealth's
interlocutory appeal. Commonwealth v. Tavares, 459 Mass. 289,
303 (2011). After he was convicted, Tavares moved for a new
trial and for postconviction discovery of copies or transcripts
of the recorded conversations. 1 The trial judge denied both
motions. Tavares's appeal from his convictions and from the
denial of his posttrial motions is pending in this court and has
not yet been briefed. In his G. L. c. 211, § 3, petition,
Tavares sought relief from the denial of his motion for

     1
       The Commonwealth represents that it produced copies of the
recorded conversations prior to trial. It appears, however,
that the recordings are not available to Tavares or his counsel.
Although the Commonwealth is under no obligation to produce any
postconviction discovery unless it is ordered to do so under
Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501
(2001), it is difficult to see any harm to the Commonwealth in
producing a new copy of material it previously produced.
                                                                   2


postconviction discovery. A single justice of this court denied
the petition as well as a subsequent motion for reconsideration.

     "[R]elief under G. L. c. 211, § 3, is properly denied where
the petitioning party has or had an adequate and effective
avenue to seek and obtain the requested relief other than G. L.
c. 211, § 3." Donald v. Commonwealth, 437 Mass. 1007, 1007
(2002), quoting Hunt v. McKendry, 434 Mass. 1025, 1026 (2001).
"An established route for the petitioner 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 . . . ." Donald, supra. We regularly
address postconviction discovery issues in connection with such
appeals. See, e.g., Commonwealth v. Morgan, 453 Mass. 54, 61-64
(2009); Commonwealth v. Martinez, 437 Mass. 84, 97-98
(2002); Commonwealth v. Stewart, 383 Mass. 253, 261 (1981).
Tavares has not carried his burden of "demonstrat[ing] the
absence or inadequacy of other remedies." Callahan v. Superior
Court Dep't of the Trial Court, 432 Mass. 1023, 1023 (2000).
The single justice did not err or abuse her discretion by
denying relief under G. L. c. 211, § 3.

                                   Judgment affirmed.

     Janet Hetherwick Pumphrey for the petitioner.
     Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
