Wallace v. Commonwealth ( 2023 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-13401
NICKOYAN WALLACE vs. COMMONWEALTH.
May 25, 2023.
Supreme Judicial Court, Superintendence of inferior courts.
Nickoyan Wallace1 has been indicted for murder in the first
degree for the shooting death of a person in Boston, and related
offenses. In the Superior Court, he filed "by Special
Appearance" a document entitled "Notice of Default and
Opportunity to Cure re Affidavit -- 'Writ of Quo Warranto' re
Proof of Claim/Jurisdiction." In general, he claimed that the
courts of the Commonwealth lack jurisdiction over him;2 in an
affidavit filed in the case, Wallace declared that he is a "Free
Sovereign and Private Great Seal Moor." The Superior Court
judge treated the filing as a motion to dismiss and denied it.
Wallace then filed a petition in the county court, pursuant to
G. L. c. 211, § 3, seeking review of the Superior Court judge's
order.3 A single justice of this court denied the petition, and
Wallace appeals. We affirm.
1 In his petition, Wallace identified himself as "'Szyon
Nkrumah, Al © All Rights Reserved,' Indigenous, Free Sovereign
and Private Great Seal Moor, in propria persona, sui juris (not
pro se or colorable); Secured Party, Third Party
Intervenor/Administrator for WALLACE, NICKOYAN ©."
2 Wallace bases his claim on myriad treaties, laws, and
constitutional provisions. He also claims a treaty right to
"Consular assistance" in this matter. We do not consider the
substantive merits of his claims at this interlocutory stage.
3 The Superior Court's docket reflects that Wallace also
filed a notice of appeal.
2
Wallace has filed a memorandum pursuant to S.J.C. Rule
2:21, as amended, 434 Mass. 1301 (2001),4 which applies where, as
here, a "single justice denies relief from a challenged
interlocutory ruling in the trial court." S.J.C. Rule 2:21 (1).
We therefore consider whether Wallace has demonstrated, as the
rule requires, "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." S.J.C. Rule
2:21 (2). He failed to meet that burden.
We have said many times that "[t]he denial of a motion to
dismiss in a criminal case is not appealable until after trial,
and . . . G. L. c. 211, § 3, may not be used to circumvent that
rule." Soucy v. Commonwealth, 470 Mass. 1025, 1025 (2015),
quoting Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002).
That principle is no less applicable where the claims asserted
involve jurisdictional issues. Such questions are "routinely
addressed on direct appeal after a final judgment." Calzado v.
Commonwealth, 479 Mass. 1033, 1034 (2018). See Salomon S.A. v.
LaFond, 463 Mass. 1003, 1003 (2012) (ordinary appellate process
"not per se inadequate to vindicate a claim of lack of personal
jurisdiction"); Gouin v. Commonwealth, 439 Mass. 1013, 1013
(2003), and cases cited (subject matter jurisdiction claims
"routinely addressed . . . on direct appeal following
conviction"). See also Fitzpatrick v. Commonwealth, 453 Mass.
1014, 1015 (2009). "[U]nless 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."5 Calzado, supra, quoting Bateman v.
Commonwealth, 449 Mass. 1024, 1024-1025 (2007).
4 The rule also requires that "[t]he appeal shall be
presented . . . on the papers filed in the single justice
session" and that the petitioner must file a record appendix.
S.J.C. Rule 2:21 (2). Wallace failed to file a record appendix
containing the record before the single justice. See Bishay v.
Land Court Dep't of the Trial Court, 477 Mass. 1032, 1033 n.2
(2017) ("[t]his presents a further reason not to disturb the
judgment").
5 We have recognized a limited exception to this rule, where
a "criminal defendant . . . raises a double jeopardy claim of
substantial merit." Neverson v. Commonwealth, 406 Mass. 174,
175 (1989). That exception does not apply to the jurisdictional
claims asserted here. See Gouin, 439 Mass. at 1013 (subject
3
Nothing in Wallace's petition under G. L. c. 211,
§ 3, required exercise of the court's extraordinary power of
general superintendence, and the single justice was warranted in
denying it.
Judgment affirmed.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
Nickoyan Wallace, pro se.
matter jurisdiction claim not comparable to protection against
double jeopardy); Meuse v. Commonwealth, 437 Mass. 1004, 1004-
1005 (2002).