Commonwealth v. Urban ( 2008 )

Spina, J.

(concurring in part and dissenting in part, with whom Cowin, J., joins). I agree that a new trial is required in this case for the reasons stated by the Appeals Court. Commonwealth v. Urban, 67 Mass. App. Ct. 301 (2006). The judge failed to instruct that the Commonwealth had to prove the complainant was “wholly insensible” due to intoxication (and sleep) as to be incapable of consenting.

I dissent from that portion of the opinion that reformulates the standard set forth in Commonwealth v. Burke, 105 Mass. 376 (1870), for reasons stated in my separate opinion in Commonwealth v. Blache, ante 583, 603-607 (2008) (Spina, J., concurring in part and dissenting in part), released today.