Stephen H. Merlin for the defendant.
Mary Ellen O'Sullivan, Assistant District Attorney, for the Commonwealth.
Marc C. Laredo, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.
This case is one of three cases argued on the same day raising the question of the applicability of an amendment to the statute of limitations in G. L. c. 277, Section 63 (1986 ed.), to two complaints charging Douglas G. Tigges with crimes within the amendment -- rape of a child under sixteen (G. L. c. 265, Section 23 [1986 ed.]), and indecent assault and battery (G. L. c. 265, Section 13B [1986 ed.]). The defendant's motion to dismiss was denied by a judge of a District Court, and a petition under G. L. c. 211, Section 3 (1986 ed.), for relief from such denial was brought to a single justice of this court who reported the case to the full bench.
Dates are crucially important in this case. The defendant allegedly committed the crimes no later than December 31, 1979. The complaints are dated July 8, 1986. The statute of limitations (G. L. c. 277, Section 63), applicable to these crimes was amended to extend the time limitations from six years to ten years through St. 1985, c. 123, which became effective on September 30, 1985.
A majority of the court affirms the denial of the defendant's motion to dismiss for the reasons set forth in Commonwealth v. Bargeron, ante 589 (1988), decided today.
Donald A. Harwood for the defendant.
J. W. Carney, Jr., Assistant District Attorney (Corinne Hirsch, Assistant District Attorney, with him), for the Commonwealth.
The defendant was indicted on May 6, 1987, for the rape of a child under sixteen years of age. G. L. c. 265, Section 23 (1986 ed.). The indictment alleges that he committed the crime in October or November, 1979. The applicable statute of limitations in G. L. c. 277, Section 63, was six years in 1979; the time period was extended to ten years through St. 1985, c. 123, enacted on July 2, 1985, but not effective until September 30, 1985.
The defendant filed a motion to dismiss and the parties submitted a statement of agreed facts. The judge reported the following question to the Appeals Court, pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979); "Is the prosecution of the defendant for rape of a child (G. L. c. 265, Section 23) which occurred in October or November of 1979, and for which the defendant was first charged in March of 1987, governed by the ten-year statute of limitations (G. L. c. 277, Section 63) enacted on July 2, 1985 (St. 1985, c. 123), or is it controlled by the six-year statute of limitations that was in effect prior to July 2, 1985?" The defendant was indicted on May 6, 1987. The effective date of c. 123 was September 30, 1985. We granted the defendant's application for direct appellate review.
For all the reasons set forth in Commonwealth v. Bargeron, ante 589 (1988), argued on the same day as the present case, a majority of the court responds to the question by holding that the amendment to Section 63, extending the statute of limitations to ten years, applies.