Although the opinion in Burke provides scant description of the victim in that case, we do not read it to require unconsciousness as a prerequisite to application of its analysis. Several more recent cases following Burke have underscored that unconsciousness is not the touchstone for application of Burke's, premises. See, e.g., Commonwealth v. Ascolillo, 405 Mass. 456, 464 (1989) (judge properly gave instruction about incapacity to consent where victim testified she was forcibly raped while awake but under influence of alcohol and cocaine; defendant testified victim was "pretty high" and even may have overdosed); Commonwealth v. Simcock, 31 Mass. App. Ct. at 195 (incapacity instruction warranted where "there was at least some evidentiary basis for the suggestion that the victim might have been severely affected [by alcohol and prior head injury] so as to lack control" even though "the evidence fell short of suggesting the victim was in a state of stupefaction or unconsciousness"). See also Commonwealth v. Urban, post 608 (2008).
See generally American Law Institute, Model Penal Code and Commentaries Part I, ยง 2.11, at 689 (1985); Part II, ยง 213.1 Comments 3 5 (1980); 3 Charles Torcia, Wharton's Criminal Law ยง 289 (1980). Cf. Commonwealth v. Ascolillo, 405 Mass. 456, 541 N.E.2d 570, 575 (1989) (victim "wholly insensible so as to be unable [to] consent. . . ."). Although it has been suggested that Saavedra v. State, 576 So.2d 953, 959 (Fla. 1st DCA 1991), is pertinent, that case involved the entirely distinct issue of consent to a search under the Fourth Amendment.
See id. (defendant not entitled to mistake of fact instruction because facts did not warrant it). See also Commonwealth v. Moran, 439 Mass. 482, 489-490, 789 N.E.2d 121 (2003) ; Commonwealth v. Lopez, 433 Mass. 722, 732, 745 N.E.2d 961 (2001) ; Commonwealth v. Ascolillo, 405 Mass. 456, 463, 541 N.E.2d 570 (1989) ; Commonwealth v. Cordeiro, 401 Mass. 843, 849-851, 519 N.E.2d 1328 (1988) ; Commonwealth v. Grant, 391 Mass. 645, 650-651, 464 N.E.2d 33 (1984) ; Commonwealth v. Sherry, 386 Mass. 682, 697, 437 N.E.2d 224 (1982) ; Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 191-192, 575 N.E.2d 1137 (1991). Nonetheless, we begin with the premise that a mistake of fact as to consent defense may be available in cases of indecent assault and battery where "[t]he evidence, viewed as a whole, raise[s] the issue of honest and reasonable mistake."
Commonwealth v. Dickerson, 372 Mass. 783, 794 (1977), quoting Commonwealth v. McKay, 363 Mass. 220, 223 (1973). See, e.g., Commonwealth v. Ascolillo, 405 Mass. 456 (1989); Commonwealth v. Lattimore, 396 Mass. 446 (1985). See also Commonwealth v. Sheline, 391 Mass. 279, 290-291 (1984) (judge's initial determination of impartiality of proposed jurors "will not be disturbed on appeal . . . [barring] a substantial risk that the case [was] decided in whole or in part on the basis of extraneous issues").
" Commonwealth v. Emerson, 430 Mass. 378, 384, 719 N.E.2d 494 (1999), cert. denied, 529 U.S. 1030, 120 S.Ct. 1446, 146 L.Ed.2d 333 (2000). See Commonwealth v. Ferguson, 425 Mass. 349, 353-354, 680 N.E.2d 1166 (1997) ; Long, 419 Mass. at 804 n.7, 647 N.E.2d 1162 ; Commonwealth v. Ascolillo, 405 Mass. 456, 460, 541 N.E.2d 570 (1989). In assessing the credibility of a prospective juror's answers to questions by the judge or by counsel, the judge may accept a juror's statement that he or she is impartial unless "solid evidence of a distinct bias" appears.
"A trial judge's initial determination that a juror stands indifferent will not be disturbed on appeal unless the defendant demonstrates that there was a substantial risk that the case would be decided in whole or in part on the basis of extraneous issues." Commonwealth v. Ascolillo, 405 Mass. 456, 460 (1989).The defendant asserts that the juror here was excusable for cause on the basis that the juror's employment involved the Department of Correction, including some level of interaction with pretrial detainees and inmates.
In light of this evidence, the judge's reference to possible restraint from exercising her will due to alcohol consumption was unwarranted. Contrast Commonwealth v. Ascolillo, 405 Mass. 456, 463-464 (1989) (instruction on relationship between intoxication and consent was warranted where defendant's own testimony indicated that victim had been drinking alcohol and snorting cocaine prior to sexual act and had apparently suffered a seizure from a cocaine overdose); Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000) (similar instruction was warranted where there was evidence that the victim, who was eighteen years old and weighed ninety-five pounds, had consumed two large glasses of orange juice and vodka, had been smoking marijuana, and felt drunk and high at time of sexual act). We also agree that, to the extent the instruction was given at all, it should have included the "wholly insensible" language appearing inCommonwealth v. Burke, 105 Mass. 376, 380-381 (1870).
Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). See Commonwealth v. Ascolillo, 405 Mass. 456, 460 (1989) (judge's determination on partiality of prospective juror "will not be disturbed on appeal unless the [juvenile] demonstrates that there was a substantial risk that the case would be decided in whole or in part on the basis of extraneous issues"). "The determination of a juror's impartiality `is essentially one of credibility, and therefore largely one of demeanor. . . .'" Commonwealth v. Ferguson, supra at 352-353, quoting from Patton v. Yount, 467 U.S. 1025, 1038 (1984).
Because Vasquez made no request for such an instruction at trial, we consider whether a substantial risk of a miscarriage of justice resulted from the absence of such an instruction. Commonwealth v. Ascolillo, 405 Mass. 456, 463-464 (1989). The evidence presented to the jury detailed several encounters of hugging and kissing between Vasquez and the male victim over a period of several months in 1994; there was also testimony that Vasquez would put his penis in the victim's mouth on some of those occasions.
The Supreme Judicial Court has explicitly rejected the contention that occupation as a police officer would be grounds for such a challenge. Commonwealth v. Ascolillo, 405 Mass. 456, 460-461 (1989) ("We decline to adopt a rule that the mere fact that a prospective juror is a police officer, in the absence of a showing of prejudice or partiality, or connection with the particular facts involved at trial, would form the basis to sustain a challenge for cause"). See G.L.c. 234A, ยง 3 ("No person shall be . . . excluded from serving as . . . a juror because of . . . [his or her] occupation").