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SJC-11779

DAVID SOUCY vs. COMMONWEALTH.

March 6, 2015.

Supreme Judicial Court, Superintendence of inferior courts.

David Soucy appeals from a judgment of a single justice of 

this court denying his petition for relief under G. L. c. 211, 

§ 3. We affirm.

Soucy was indicted for trafficking in a class B substance

in violation of G. L. c. 94C, § 32E. In moving to dismiss the

indictments, he argued that because the charges concerned

pharmaceutical drugs (oxycodone tablets), the weight 

requirements under § 32E should be measured by the weight of the 

controlled substance (oxycodone) contained in the tablets, not 

by the tablets' total weight, and that there was an insufficient

amount of the controlled substance in the tablets to meet the 

statutory weight requirements. His motion was denied by a judge 

in the Superior Court. His G. L. c. 211, § 3, petition in the 

county court challenged that interlocutory ruling. The single 

justice denied relief without a hearing.

Under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), 

Soucy is required 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." He has not done so. If and when he is 

convicted on one or more of the indictments, any challenge to 

the weight requirements under § 32E or to the sufficiency of the 
2

evidence in support of those requirements can adequately be 

reviewed in the normal appellate process.

"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." 

Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002), and cases 

cited. A very limited exception exists where, before a trial or 

a retrial, a defendant raises a double jeopardy claim of 

substantial merit. Id. See Neverson v. Commonwealth, 406 Mass. 

174, 175-176 (1989). But we have consistently rejected attempts 

to obtain interlocutory review as a matter of right under G. L. 

c. 211, § 3, of denials of motions to dismiss on other bases 

that defendants have attempted to analogize to double jeopardy 

claims. See, e.g., Grand-Pierre v. Commonwealth, 461 Mass. 

1003, 1004 (2011) (challenge to constitutionality of statute 

under which defendant was charged); Garden v. Commonwealth, 460 

Mass. 1018, 1019 (2011) (statute of limitation claim);

Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 (2009) 

(jurisdictional claim); Bateman v. Commonwealth, 449 Mass. 1024, 

1024-1025 (2007) (challenge to sufficiency of evidence before 

grand jury); Cousin v. Commonwealth, 442 Mass. 1046, 1046 (2004) 

(speedy trial claim); King v. Commonwealth, 442 Mass. 1043, 1044

(2004) (claim of preindictment delay); Jackson v. Commonwealth, 

supra (due process challenge to prosecution). See also 1 

Appellate Practice in Massachusetts § 1.5, at 1-14 (Mass. Cont. 

Legal Educ. 3d ed. Supp. 2014) ("The exception is based on the 

unique nature of the guarantee not to be placed in jeopardy 

twice"). There is simply "no case in which we have held that a 

. . . claimant [in Soucy's position], like a double jeopardy 

claimant, is entitled to review pursuant to G. L. c. 211, § 3." 

Jackson v. Commonwealth, supra.

The single justice neither erred as a matter of law nor 

abused his discretion in denying the petition.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by 

a memorandum of law.

William J. Barabino for the petitioner.

Elin H. Graydon, Assistant District Attorney, for the 

Commonwealth.