Commonwealth v. Bertini, et al. (Lawyers Weekly No. 10-147-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11163 SJC-11164 COMMONWEALTH vs. EUGENE BERTINI. COMMONWEALTH vs. LESLIE BERTINI. Suffolk. April 1, 2013. ‑ August 6, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Disclosure of evidence, Interlocutory appeal. Constitutional Law, Search and seizure. Search and Seizure, Buccal swab. Witness, Compelling giving of evidence. Evidence, Buccal swab. Deoxyribonucleic Acid. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on February 3, 2012, and February 2, 2012, respectively. The cases were heard by Gants, J. Edward J. McCormick, III, for Eugene Bertini. Marian T. Ryan, Assistant District Attorney (John T. Mulcahy, Assistant District Attorney, with her), for the Commonwealth. J. Gregory Batten for Leslie Bertini. John T. Mulcahy, Assistant District Attorney (Marian T. Ryan, Assistant District Attorney, with him) for the Commonwealth. LENK, J. A single justice of this court, treating as petitions brought under G. L. c. 211, § 3, the defendants’ respective appeals from court orders compelling each of them to provide a buccal swab for purposes of deoxyribonucleic acid (DNA) testing, denied both petitions. We are called upon to decide whether a petition under G. L. c. 211, § 3, is the appropriate means by which to seek relief from such orders and, if it is, whether the single justice erred or otherwise abused his discretion in denying the petitions. We conclude that G. L. c. 211, § 3, is the appropriate means by which a defendant may seek interlocutory relief from an order compelling the production of a buccal swab, and that, in the circumstances, the single justice properly denied the defendants’ petitions. 1. Background. The defendants, Eugene and Leslie Bertini, have been indicted on charges of armed robbery, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and larceny over $ 250, in conjunction with the robbery of a gasoline station in Wakefield. The Commonwealth sought a buccal swab from each defendant, both of whom were in custody pending trial, because a firearm and firearm magazine allegedly used in the robbery, as well as a necklace allegedly taken from a victim of the robbery, may be suitable for DNA testing, and the Commonwealth intends to compare the defendants’ DNA with DNA that may be recovered from those items. In moving for an […]