10 Mass. App. Ct. 911

October 9, 1980

This case is before us on the defendant's motion for reconsideration of an order by which his appeal from a conviction of murder in the second degree was dismissed. The reason for the dismissal was that the defendant, after the argument of his appeal but before disposition thereof, had failed to return to prison following a furlough. See Commonwealth v. Rezendes, 353 Mass. 228 (1967). The Commonwealth's motion for dismissal of the appeal was allowed by an order in the form of a rescript opinion dated May 7, 1973. See Commonwealth v. Richards, 1 Mass. App. Ct. 821 (1973). That rescript was recalled, however, on May 31, 1973, and on the same date another rescript opinion issued which again ordered the appeal dismissed. The defendant, meanwhile, had been returned to custody on May 8, 1973. In these circumstances we think that the order of dismissal should be rescinded. It is true that "one who is in escape from custody cannot insist that his appeal be heard," Commonwealth v. Green, 353 Mass. 687, 690 (1968); and if the appeal of an escaped prisoner is dismissed for that reason in his absence, we think that, under the rule of the Rezendes case, his appellate rights are lost. But where an escaped prisoner returns to custody, voluntarily or involuntarily, before such a dismissal takes place, the basis for the dismissal, namely, the "unavailab[ility of the prisoner] to await the decision of the court," Commonwealth v. Rezendes, at 228, no longer obtains. We think that is the controlling principle in this case. Our recall of the May 7, 1973, rescript left the Commonwealth's motion to dismiss the appeal undisposed of, and the return of the defendant to custody preceded our allowance of the motion on May 31, 1973. The defendant's motion for reconsideration of the order of dismissal is therefore allowed, the dismissal of the appeal is vacated, and the appeal is restored to the docket.

So ordered.


10 Mass. App. Ct. 911

October 14, 1980

The defendant appeals from his conviction on an indictment charging rape; an indictment charging assault and battery was placed on file without objection. See Commonwealth v. Doucette, 9 Mass. App. Ct. 846 (1980). We conclude that the defendant's various contentions are all without merit.

1. The defendant's argument with regard to his claim that the judge erroneously excluded the public from his probable cause hearing must fail. The Commonwealth requested that all persons (other than the victim's family) not involved in the case be excluded from the hearing. Compare

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G. L. c. 278, Section 16C. At the outset, we note that the record reflects that a reporter for a local newspaper, who was present at the hearing, wrote a story covering the proceedings. See generally Globe Newspaper Co. v. Superior Court, 379 Mass. 846 (1980). Passing the fact that the defendant did not complain at that time, we are unable to see how in the present circumstances the defendant could have been prejudiced at his trial in chief. See Commonwealth v. Satterfield, 373 Mass. 109, 116 (1977).

2. The judge did not abuse his discretion in denying the defendant's request for a continuance of the probable cause hearing. Commonwealth v. Bettencourt, 361 Mass. 515, 517-518 (1972). Cf. Commonwealth v. Gilchrest, 364 Mass. 272, 277-278 (1973). We agree with the Superior Court judge's implied ruling that on the vague representations made by defense counsel at the probable cause hearing the District Court judge could have properly concluded that a continuance "would not measurably contribute to the resolution of [the] particular controversy." Commonwealth v. Gilchrest, supra at 276-277. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964). In any event, the defendant has not on this record been able "to trace any [alleged] inadequacy at the [probable cause] hearing into the trial so as to justify a new trial." Commonwealth v. Satterfield, supra at 116.

3. The judge did not abuse his discretion in limiting cross-examination of the victim at the probable cause hearing. Commonwealth v. Shea, 323 Mass. 406, 417 (1948). Commonwealth v. Cresta, 3 Mass. App. Ct. 560, 563 (1975). See also Myers v. Commonwealth, 363 Mass. 843, 857 (1973) ("[judge] at [probable cause] hearing has the same broad discretion as a trial judge in limiting the scope of cross-examination to relevant issues"). The record does not show that the defendant was unfairly precluded from examining the victim. Contrast Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978). The judge properly sustained objections to further proposed inquiries that were repetitious. See Commonwealth v. Carroll, 360 Mass. 580, 589 (1971); Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 714 (1974).

4. Given what we have said above, it is unnecessary for us to reach the question of the effect of the grand jury indictment of the defendant on his claims of alleged error at the probable cause hearing.

5. We pass the question whether a different District Court judge could have set aside the finding of probable cause, because the defendant has not made it appear that he suffered any prejudice by that judge's refusal to do so.

6. The Superior Court judge properly denied the defendant's motion to dismiss the indictment. Compare Connaughton v. District Court of Chelsea, 371 Mass. 301, 302 (1976). No error of law or abuse of discretion has been shown. See Commonwealth v. Britt, 362 Mass. 325, 330 (1972) ("Traditionally, irregularities in the probable cause hearing furnished

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no ground for dismissal of the indictment"). We note, as did the Superior Court judge, the lack of objections by the defendant at the probable cause hearing.

7. The instructions given the jury on intent, intoxication and consent were adequate. The instructions requested by the defendant, but not given, were either unnecessary or erroneous. The charge properly placed on the Commonwealth the burden of establishing the existence of each essential element of the crime beyond a reasonable doubt. As to the issue of consent, the judge on at least six occasions indicated that such proof should establish that the crime was "by force and against her will." Diminished capacity resulting from the voluntary use of intoxicating liquor is not a defense to rape. Commonwealth v. Stewart, 359 Mass. 671, 679 (1971), vacated as to death penalty, 408 U.S. 845 (1972). See Commonwealth v. Johnson, 374 Mass. 453, 462-463 (1978), and cases cited; Commonwealth v. Sheehan, 5 Mass. App. Ct. 754, 761-762 (1977).

8. It is now well settled that forcible oral sex is unnatural sexual intercourse within the meaning of the rape statute (G. L. c. 265, Section 22). See Commonwealth v. Gallant, 373 Mass. 577, 583-584 (1977). The defendant's argument that "community standards" is a relevant consideration in these circumstances is very wide of the mark. Contrast Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), wherein the application of "the concept of general community disapproval of specific sexual conduct, which is inherent in [G. L. c. 272,] Section 35," is discussed.

Judgment affirmed.