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revision and are superseded by the advance sheets and bound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-11804
JEFFREY VIGIARD vs. COMMONWEALTH.
July 6, 2015.
Rape. Deoxyribonucleic Acid. Practice, Criminal, Interlocutory
appeal. Supreme Judicial Court, Superintendence of
inferior courts.
The petitioner, Jeffrey Vigiard, appeals from a judgment of
a single justice of this court summarily denying his petition
for relief pursuant to G. L. c. 211, § 3. We affirm.
The petitioner has been indicted on charges of aggravated
rape and other offenses. It appears that some items recovered
from the crime scene have been subjected to deoxyribonucleic
acid testing, while other items have not been tested. The
defendant has made multiple motions in the Superior Court to
obtain testing of the untested items. Some of his motions were
allowed; others were denied. We need not dwell on the
particulars of the motions or the bases for the various rulings.
It suffices to say that, after the denial of his most recent
motion on August 14, 2014, the petitioner filed a petition in
the county court asking for leave to pursue an interlocutory
appeal from the denial of that motion. As stated, the single
justice summarily denied the petition.
The appeal from the single justice's ruling is now before
us on the petitioner's memorandum in accordance with S.J.C.
Rule 2:21, as amended, 434 Mass. 1301 (2001). The rule requires
the petitioner to "set forth the reasons why 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." The petitioner's memorandum explains why he believes
2
the trial court's ruling was erroneous, and why he believes his
defense might be prejudiced without the additional testing, but
does not address at all what the rule requires -- why the motion
judge's rulings cannot adequately be reviewed, and rectified if
necessary, in a direct appeal if and when the petitioner is
convicted.
Use of the court's extraordinary power of general
superintendence is not necessary when there is an adequate
alternative remedy. It should not be sought merely as a
substitute for ordinary appellate review. See McMenimen
v. Passatempo, 452 Mass. 178, 184-185 (2008); McGuinness
v. Commonwealth, 420 Mass. 495, 497 (1995), and cases cited.
See generally 1 Appellate Practice in Massachusetts § 1.5 (Mass.
Cont. Legal Educ. 3d ed. Supp. 2014). The single justice
neither erred nor abused her discretion when she declined to
employ the court's general superintendence power to review the
matter at this interlocutory juncture.
Judgment affirmed.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
James R. Goodhines for the petitioner.