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SJC-12335

               DERRICK SCOTT   vs.   COMMONWEALTH.


                          May 25, 2018.


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


     This is an appeal from the judgment of a single justice of
this court denying the petitioner, Derrick Scott, relief
pursuant to G. L. c. 211, § 3. We affirm.

     Following a jury trial in the Superior Court, Scott was
convicted of rape, in violation of G. L. c. 265, § 22 (b); and
kidnapping, in violation of G. L. c. 265, § 26. His direct
appeal from the judgments of conviction presently is pending
before the Appeals Court. While the appeal has been pending,
Scott filed a motion in the Superior Court seeking access to,
and copies of, the confidential juror questionnaires submitted
by prospective jurors for his trial. See G. L. c. 234A, § 22.
After his motion was denied, Scott filed a G. L. c. 211, § 3,
petition in the county court seeking relief from the judge's
order. The single justice neither erred nor abused his
discretion in denying the petition.1

     A single justice properly exercises his or her
discretionary power of review under G. L. 211, § 3, only in
exceptional circumstances. See Planned Parenthood League of
Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990). The
power is to be used "sparingly." Care & Protection of Sophie,

    1  Scott has moved to strike certain portions of the
Commonwealth's brief, which referred to matters not before the
single justice. In reaching our decision, we have not
considered those portions of the Commonwealth's brief.
                                                                   2


449 Mass. 100, 103 (2007). It is not "merely a substitute for
normal appellate review" (quotation omitted). Francis v.
District Attorney for the Plymouth Dist., 388 Mass. 1009, 1010
(1983). It is therefore incumbent on a petitioner to
"demonstrate both a substantial claim of violation of his
substantive rights and error that cannot be remedied under the
ordinary review process." Dunbrack v. Commonwealth, 398 Mass.
502, 504 (1986). See Campiti v. Commonwealth, 417 Mass. 454,
455-456 (1994). We have said that the court's power of
superintendence rarely is exercised to review interlocutory
rulings in criminal cases, because the process of trial and
appeal ordinarily provides adequate review of any claims of
error. See Gilday v. Commonwealth, 360 Mass. 170, 171 (1971).
Although this appeal concerns a postconviction ruling, the same
principles apply.

     Scott challenges the denial of access to juror
questionnaires used during the jury selection process. The
single justice properly denied the petition because Scott failed
to meet his burden of establishing that his challenge could not
be effectively addressed as part of his pending appeal, or by
other available avenues. See Bledsoe v. Commissioner of
Correction, 470 Mass. 1017, 1018 (2014). His argument that the
juror questionnaires should be part of the record on appeal does
not justify the extraordinary intervention of this court. It is
something that can adequately be addressed by the Appeals Court,
where his appeal is pending, or by a single justice of the
Appeals Court. For example, he could have sought a ruling as to
the correct composition of the record from a single justice of
the Appeals Court pursuant to Mass. R. A. P. 8 (e), as amended,
378 Mass. 932 (1979).

                                   Judgment affirmed.


     Alan E. Zeltserman for the petitioner.
     Dara Z. Kesselheim, Assistant District Attorney, for the
Commonwealth.
