Suliveres v. Commonwealth

865 N.E.2d 1086 (2007)

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Nature of the Case

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Facts

D had sexual intercourse with the complainant by impersonating her longtime boyfriend, his brother. While she was asleep alone in the bedroom she shared with her boyfriend, D entered the room, and she awoke. In the dark room, the complainant assumed that D was her boyfriend returning home from work, and addressed him by her boyfriend’s name. He got into the bed and had intercourse with her. The complainant was 'not fully awake' at the time of penetration. During the intercourse, she believed that the man was her boyfriend, and had she known it was D, she 'would have never consented.' D was indicted for rape. The main issue was whether the complainant knew at the time the identity of the person with whom she was having sex. The defense was that the sex was fully consensual. D told an investigating police officer that the complainant had come to him while he was asleep in another room and had invited him to her bedroom to have sex with her. The Commonwealth argued that the D had procured the complainant's consent to sex fraudulently by impersonating her boyfriend. D moved for a required finding of not guilty at the close of the Commonwealth's evidence, but the motion was denied. The jury was unable to reach a verdict, and the judge declared a mistrial. D then moved to dismiss the indictment, arguing that the Commonwealth had failed to present sufficient evidence to support a guilty verdict at trial and that any subsequent retrial would thus violate common-law principles of double jeopardy. That motion was denied. D sought relief from a single justice of this court. The single justice reserved and reported the case to the full bench.