Opinion
11-P-1570
12-26-2012
COMMONWEALTH v. ARLINDO EVORA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In the defendant's claims on appeal, we discern no cause to disturb the judgment of conviction on a charge of rape of a child, under G. L. c. 265, § 23.
The defendant's claims challenge the validity of his stipulation to the admissibility of a deoxyribonucleic acid (DNA) test that essentially established his paternity of a child borne by the victim. Since the claims of error were not preserved, and he asserts no claim that his trial counsel was ineffective, we review for a substantial risk of a miscarriage of justice.
To the extent that the defendant contends that the colloquy misled him to believe he could defend the charge on the basis that he lacked specific intent, his argument is misdirected. If anything, as the Commonwealth observes on pages twenty-one to twenty-two of its brief, the judge in this jury-waived trial gave the defendant the benefit of a defense to which he was not entitled. To the extent that the defendant suggests that he was coerced into entering the stipulation based on concern that he might be required, albeit improperly, to bear travel expenses for the expert if he refused to stipulate, the contention is belied by his response to the judge's inquiry on that very subject during the thorough and detailed colloquy. In any event, the defendant has not shown that he suffered any prejudice (much less a substantial risk of a miscarriage of justice) by reason of his stipulation; he offers no basis to suggest that he could, through cross-examination of Dr. Hoffman, have impeached Dr. Hoffman's testimony that the probability that he fathered the victim's child is 99.99999 percent. Judgment affirmed.
As the defendant correctly observes, rape is a general intent crime, see Commonwealth v. Grant, 391 Mass. 645, 650 (1984), and intoxication has no mitigating effect. See Commonwealth v. Troy, 405 Mass. 253, 260 (1989).
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By the Court (Green, Graham & Sullivan, JJ.),