Commonwealth v. Augustine (Lawyers Weekly No. 10-042-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11482 COMMONWEALTH vs. SHABAZZ AUGUSTINE. Suffolk. October 10, 2013. – March 11, 2015. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Appeal, Interlocutory appeal, Attorney’s fees, Request for fees and costs. Indictment found and returned in the Superior Court Department on July 29, 2011. Following review reported in 467 Mass. 230 (2014), a motion to award appellate attorney’s fees was filed in this court on February 28, 2014. The case was submitted on briefs. Matthew R. Segal & Jessie J. Rossman for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. Jane Larmon White, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae. BOTSFORD, J. Following our decision in Commonwealth v. Augustine, 467 Mass. 230 (2014), the defendant filed a request for attorney’s fees pursuant to Mass. R. Crim. P. 15 (d), as appearing in 422 Mass. 1501 (1996). He seeks fees for counsel he engaged to replace his court-appointed counsel for the defense of the Commonwealth’s interlocutory appeal in the case. It is undisputed that the defendant is indigent and that his new counsel agreed not to charge him any fees for their services. For reasons explained below, we hold that the defendant is not entitled to the payment of fees under rule 15 (d) in these circumstances. Procedural background. The defendant was indicted in 2011 for the murder of Julaine Jules. In November, 2012, he moved to suppress “cell site location information” that the Commonwealth had obtained, without a warrant, from his cellular telephone service provider. Augustine, 467 Mass. at 234. A judge of the Superior Court allowed his motion and suppressed the challenged evidence. Id. The Commonwealth thereafter applied for leave to appeal from the adverse ruling in accordance with Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).[1] Id. A single justice of the county court granted the application and directed the appeal to proceed in this court. Id. We held that, under art. 14 of the Massachusetts Declaration of Rights, the defendant had a reasonable expectation of privacy in his cell site location information, and therefore that a warrant was required for the Commonwealth to obtain the information. Id. at 255. We remanded the case to the Superior Court to give […]