There are two occasions when a petitioner may request that the single justice grant leave to appeal a lower court order. The single justice serves as a gatekeeper and may grant permission for the appeal to go forward (open the gate) or decline the request for leave to appeal (keep the gate closed).
A party aggrieved by an adverse ruling from a motion to suppress determined either in the District Court or Superior Court shall have the right and opportunity to apply to a single justice of the Supreme Judicial Court for leave to appeal an order determining a motion to suppress evidence prior to trial. Mass.R.Crim.P. 15 (a)(2). Moreover, the rule provides that the case shall be stayed and the defendant should not be placed in jeopardy until interlocutory review has been waived or the period specified (ten days) for instituting interlocutory procedures has expired." See Mass.R.Crim.P. 15(c), 15(e). Both the Commonwealth (in the event a motion to suppress is allowed) and the defendant (in the event a motion to suppress is denied) are given the opportunity under the rule to file a petition before a single justice pursuant to Mass.R.Crim.P. 15(a)(2) seeking leave to appeal the order on the motion to suppress. On February 1, 1997, a standing order became effective relative to interlocutory appeals pursuant to Mass.R.Crim.P. 15 (a)(2). Read in conjunction, the rule and standing order identify the time to file the appeal, the contents of the petition, and address the issues of late applications and stays of trials pending a ruling on the application. Rule 15 (a)(2) provides for the filing of an application within ten days of the issuance of notice of the order being challenged. (The rule does not give guidance on the meaning of the phrase issuance of notice of the order.) The standing order reduces that time to seven days. The trial judge must issue findings and rulings within the time allotted for filing the notice of appeal.
Practice Note: A party seeking additional time before the single justice is encouraged to file the entire petition simultaneously with the filing of the motion for late filing. The first paragraph of the standing order provides a list of information to be included in the application. If the lower court judge has not issued findings and rulings, counsel must file a request for findings and rulings with the lower court.
In cases where the defendant is convicted of first degree murder, and after the full court has affirmed the conviction, the defendant may seek full court review of the Superior Court's denial of a motion for new trial. G. L. c. 278, §33E. Here, the single justice determines whether the application presents a new and substantial question that should be reviewed by the full court. Commonwealth v. Therrien, 428 Mass. 607 (1998). It is important to note that where plenary review of a first-degree murder conviction resulted in a reduction of the verdict, the defendant is not subject to the gatekeeper provisions under Section 33E. Commonwealth v. Perry, 424 Mass. 1019 (1997); Commonwealth v. Lattimore, 400 Mass. 1001 (1987).