Wassilie v. Commonwealth (Lawyers Weekly No. 10-135-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12306 SAM C. WASSILIE vs. COMMONWEALTH. August 18, 2017. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Dismissal. The petitioner, Sam C. Wassilie, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Wassilie was indicted on twenty-two counts of videotaping, with his cellular telephone, individuals who were nude or partially nude, in violation of G. L. c. 272, § 105 (b). The charges stem from two recordings, made continuously and on the same day at a public restroom, showing twelve adults and five juveniles in various states of nudity. Wassilie filed a motion to dismiss, and at a hearing on the motion, a judge in the Superior Court ordered that any duplicative charges be dismissed. The Commonwealth subsequently filed a nolle prosequi as to five of the twenty-two counts. Wassilie’s motion to dismiss was otherwise denied, as was his motion to suppress evidence. He then filed a G. L. c. 211, § 3, petition in the county court, arguing that the statute does not allow for separate prosecutions as to each individual videotaped, that the charges are therefore duplicative, and that he should not have to be subject to a trial on multiple indictments that expose him to multiple punishments. A single justice denied the petition without a hearing.[1] The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “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.” S.J.C. Rule 2:21 (2). Wassilie has not made such a showing. “The denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule. Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.” Bateman v. Commonwealth, 449 Mass. 1024, 1024-1025 (2007), quoting Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002). See Ventresco v. Commonwealth, 409 Mass. 82, 83-84 […]