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SJC-12211

PAULO TAVARES vs. COMMONWEALTH.

February 5, 2018.

Supreme Judicial Court, Superintendence of inferior 

courts. Practice, Criminal, Discovery, Postconviction 

relief, Capital case.

Paulo Tavares appeals from a judgment of the county court 

denying his petition for relief under G. L. c. 211, § 3. We 

affirm the judgment.

Tavares has been convicted by a jury of murder in the first 

degree and other offenses. Before trial, Tavares successfully 

moved to suppress evidence of surreptitiously recorded 

conversations between him and a confidential informant. We 

affirmed the suppression order on the Commonwealth's 

interlocutory appeal. Commonwealth v. Tavares, 459 Mass. 289, 

303 (2011). After he was convicted, Tavares moved for a new 

trial and for postconviction discovery of copies or transcripts 

of the recorded conversations.1

 The trial judge denied both 

motions. Tavares's appeal from his convictions and from the 

denial of his posttrial motions is pending in this court and has 

not yet been briefed. In his G. L. c. 211, § 3, petition, 

Tavares sought relief from the denial of his motion for 

 1 The Commonwealth represents that it produced copies of the 

recorded conversations prior to trial. It appears, however, 

that the recordings are not available to Tavares or his counsel. 

Although the Commonwealth is under no obligation to produce any

postconviction discovery unless it is ordered to do so under 

Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 

(2001), it is difficult to see any harm to the Commonwealth in 

producing a new copy of material it previously produced.
2

postconviction discovery. A single justice of this court denied 

the petition as well as a subsequent motion for reconsideration.

"[R]elief under G. L. c. 211, § 3, is properly denied where 

the petitioning party has or had an adequate and effective 

avenue to seek and obtain the requested relief other than G. L. 

c. 211, § 3." Donald v. Commonwealth, 437 Mass. 1007, 1007 

(2002), quoting Hunt v. McKendry, 434 Mass. 1025, 1026 (2001). 

"An established route for the petitioner to obtain appellate 

review of the denial of his motion for postconviction discovery 

would be in connection with an appeal from the denial of his 

motion for a new trial . . . ." Donald, supra. We regularly 

address postconviction discovery issues in connection with such 

appeals. See, e.g., Commonwealth v. Morgan, 453 Mass. 54, 61-64 

(2009); Commonwealth v. Martinez, 437 Mass. 84, 97-98

(2002); Commonwealth v. Stewart, 383 Mass. 253, 261 (1981). 

Tavares has not carried his burden of "demonstrat[ing] the 

absence or inadequacy of other remedies." Callahan v. Superior 

Court Dep't of the Trial Court, 432 Mass. 1023, 1023 (2000). 

The single justice did not err or abuse her discretion by 

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

Judgment affirmed.

Janet Hetherwick Pumphrey for the petitioner.

Carolyn A. Burbine, Assistant District Attorney, for the 

Commonwealth.