Posts tagged "1014616"

Vinnie v. Commonwealth (Lawyers Weekly No. 10-146-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12011   RAYMOND P. VINNIE  vs.  COMMONWEALTH.     September 12, 2016.     Supreme Judicial Court, Superintendence of inferior courts.  Practice, Criminal, Capital case.  Mandamus.  Practice, Civil, Action in nature of mandamus, Fraud.  Fraud.     The defendant, Raymond P. Vinnie, was convicted of murder in the first degree in 1993.  In his first motion for a new trial he argued, among other things, that his trial counsel erred in not requesting, and the judge erred in not giving, an instruction to the jury that it could return a verdict of guilty of murder in the second degree.  The motion judge, who was also the trial judge, denied the motion.  The defendant’s appeal from that denial was consolidated with his direct appeal, and we affirmed both the conviction and the denial of the motion for a new trial.  Commonwealth v. Vinnie, 428 Mass. 161 (1998), cert. denied, 525 U.S. 1007 (1998).  Since then, the defendant has filed numerous additional postconviction motions, the latest of which was a “petition in the nature of mandamus pursuant to G. L. c. 249, § 5,” which he filed in the county court in 2015.  A single justice denied the petition on the basis that mandamus relief was not appropriate because the defendant had another adequate remedy.  The single justice also noted that even if he were to treat the petition as a subsequent motion for a new trial and, accordingly, consider it pursuant to the gatekeeper provision of G. L. c. 278, § 33E, he would deny it because the jury instruction issue was not “new and substantial.”   After the single justice denied the petition, the defendant filed a notice of appeal, and, after his appeal was entered in this court, a brief.  The Commonwealth subsequently filed a motion to dismiss, arguing that there is no right to appeal from the denial of a gatekeeper petition pursuant to G. L. c. 278, § 33E.  The defendant, in turn, filed an opposition to the Commonwealth’s motion, arguing that what he filed in the county court was not a gatekeeper petition but, rather, a mandamus petition.  Regardless whether we consider the petition pursuant to G. L. c. 249, § 5, or G. L. c. 278, § 33E, the defendant is not entitled to relief.   As the Commonwealth correctly notes, a single justice’s decision, acting as a gatekeeper pursuant to G. L. c. 278, § 33E, is final and unreviewable.  Commonwealth v. Scott, […]

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Posted by Massachusetts Legal Resources - September 13, 2016 at 2:19 am

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