GLAWSON v. COMMONWEALTH (2002)

Richard Glawson (petitioner) appeals under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), from the denial of relief under G.L. c. 211, § 3, by a single justice of this court.   The petitioner had sought review of a Superior Court order allowing the Commonwealth's motion to compel him to produce blood and hair samples.   The single justice also denied the petitioner's subsequent motion for a stay.

The order of the Superior Court judge is interlocutory;  and, we examine whether the petitioner has met the requirement of rule 2:21(2) that he “set forth the reasons why review of the trial court decision cannot adequately be obtained from any final adverse judgment in the trial court or by other available means.”   The petitioner contends, among other things, that:  no statute authorizes extraction of the samples;  the involuntary collection of them constitutes a search and seizure;  the lower court did not hold a hearing to determine whether there was probable cause for an arrest warrant;  he has been deprived of due process and equal protection;  and, that the grand jury were influenced by professional misconduct.   He refers, in conclusion, to “irremediable harm at trial” and states that an appeal may be “fruitless.”

The conclusory references to “irremediable harm” and to an appeal as possibly being “fruitless” do not meet the requirement of rule 2:21(2).   In addition, see Matter of a Grand Jury Investigation, 435 Mass. 1002, 1003, 755 N.E.2d 1220 (2001) (noting that comparison testing might exclude the petitioner;  appellate review would be available;  and, that petitioner may have assumed that the test results would be admitted at trial, that the decision to do so would be upheld on appeal, and that the results would be admitted again if a new trial were ordered);  Cummins v. Commonwealth, 433 Mass. 1005, 1006, 740 N.E.2d 1291 (2001) (affirming denial of relief from order allowing Commonwealth's motion to take blood sample).

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

RESCRIPT.