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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

1 Wassilie also filed an application for leave to prosecute

an interlocutory appeal from the denial of his motion to 

suppress, which the single justice also denied.

 
2

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 (1991), and cases cited. 

It is true that "[w]e have recognized a narrow exception in 

cases where the motion to dismiss raises a double jeopardy claim 

of substantial merit." Watkins v. Commonwealth, 469 Mass. 1006, 

1006 (2014), citing Neverson v. Commonwealth, 406 Mass. 174, 

175-176 (1989). That exception, however, does not apply here. 

"The double jeopardy principle protects against three specific 

evils -- a second prosecution for the same offense after 

acquittal; a second prosecution for the same offense after 

conviction; and multiple punishments for the same offense"

(quotations omitted). Commonwealth v. Brown, 470 Mass. 595, 603 

(2015), quoting Marshall v. Commonwealth, 463 Mass. 529, 534 

(2012). None of these situations apply here, where Wassilie has 

not yet been convicted. Should he be convicted of multiple 

counts, there is no reason why any potential duplicative 

conviction issue cannot adequately be addressed in a direct 

appeal.

The single justice did not err or abuse her discretion in 

denying relief under G. L. c. 211, § 3.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by 

a memorandum of law.

Edmund R. St. John, III, for the petitioner.