Commonwealth v. Hernandez (Lawyers Weekly No. 10-048-15)
COMMONWEALTH vs. AARON HERNANDEZ. SJC-11840 SUPREME JUDICIAL COURT OF MASSACHUSETTS March 26, 2015, Decided NOTICE: THIS OPINION IS SUBJECT TO FORMAL REVISION BEFORE PUBLICATION IN THE MASSACHUSETTS REPORTER USERS ARE REQUESTED TO NOTIFY THE CLERK OF THE COURT OF ANY FORMAL ERRORS SO THAT CORRECTIONS MAY BE MADE BEFORE THE BOUND VOLUMES GO TO PRESS. HEADNOTES-1 COUNSEL: 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. OPINION 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 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. FOOTNOTES 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 fromwww.youtube.com. 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 […]