Commonwealth v. Hill, 385 N.E.2d 253 (Mass. 1979). · Go Syfert
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Commonwealth v. Hill, 385 N.E.2d 253 (Mass. 1979). Cases Citing This Book View Copy Cite
32 citation events (12 in the last 25 years) across 7 distinct courts.
Strongest positive: In Re Revo Mg, LLC (masssuperct, 2025-05-12)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 15 distinct citers.
discussed Cited as authority (rule) In Re Revo Mg, LLC
Mass. Super. Ct. · 2025 · signal: cf. · confidence medium
Cf. Commonwealth v. Pon, 469 Mass. 296, 308 (2014) (Massachusetts courts “give respectful consideration to such lower Federal court decisions as seem persuasive”) (quoting Commonwealth v. Hill, 377 Mass. 59, 61 (1979).
discussed Cited as authority (rule) Commonwealth v. Credit Acceptance Corporation
Mass. Super. Ct. · 2021 · confidence medium
Although Massachusetts courts “ ‘give respectful consideration to such lower Federal court decisions as seem persuasive,’ … [they] ‘are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.’ ” Commonwealth v. Pon, 469 Mass. 296, 308 (2014), quoting first Commonwealth v. Hill, 377 Mass. 59, 61 (1979), and then Commonwealth v. Montanez, 388 Mass. 603, 604 (1983). -8- temporary directional signs was content-based and therefore subject to strict scrutiny.
discussed Cited as authority (rule) Toghill v. Commonwealth
Va. · 2015 · confidence medium
Co. v. Commissioner of Revenue, 770 N.E.2d 980 , 986 n.8 (Mass. 2002) (citing Commonwealth v. Hill, 385 N.E.2d 253, 255 (Mass. 1979)) (“Although we are not bound by decisions of Federal courts (other than the United States Supreme Court) on matters of Federal law . . . , ‘we give respectful consideration to such lower Federal court decisions as seem persuasive.’”); State v. Coleman, 214 A.2d 393, 402, 403 (N.J. 1965) (“In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a par…
discussed Cited as authority (rule) Commonwealth v. Pon
Mass. · 2014 · confidence medium
L. c. 276, § 100C, second par. “[Ajlthough we give respectful consideration to such lower Federal court decisions as seem persuasive,” Commonwealth v. Hill, 377 Mass. 59, 61 (1979), quoting Commonwealth v. Masskow, 362 Mass. 662, 667 (1972), “we are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.” Commonwealth v. Montanez, 388 Mass. 603, 604 (1983).
discussed Cited as authority (rule) Massachusetts Delivery Ass'n v. Coakley
1st Cir. · 2012 · confidence medium
Co. v. Comm’r of Revenue, 437 Mass. 241 , 770 N.E.2d 980 , 986 n. 8 (2002) (“Although we are not bound by decisions of Federal courts (other than the United States Supreme Court) on matters of federal law, ‘we give respectful consideration to such lower Federal court decisions as seem persuasive.’ ” (citation omitted) (quoting Commonwealth v. Hill, 377 Mass. 59 , 385 N.E.2d 253, 255 (1979))); Commonwealth v. Montanez, 388 Mass. 603 , 447 N.E.2d 660, 661 (1983) (“Though we always treat their decisions with deference, we are not bound by decisions of Federal courts except the decisio…
cited Cited as authority (rule) Commonwealth v. Murphy
Mass. · 2007 · confidence medium
Commonwealth v. Hill, 377 Mass. 59, 61 (1979).
discussed Cited as authority (rule) ACE Property & Casualty Insurance v. Commissioner of Revenue
Mass. · 2002 · confidence medium
Although we are not bound by decisions of Federal courts (other than the United States Supreme Court) on matters of Federal law, see Commonwealth v. Montanez, 388 Mass. 603, 604 (1983), “we give respectful consideration to such lower Federal court decisions as seem persuasive.” Commonwealth v. Hill, 377 Mass. 59, 61 (1979), quoting Commonwealth v. Masskow, 362 Mass. 662, 667 (1972).
discussed Cited as authority (rule) Commonwealth v. Montanez
Mass. · 1983 · confidence medium
If it were necessary in this case to do so, we would follow the principle which we announced in Commonwealth v. Hill, 377 Mass. 59, 61-62 (1979), and Commonwealth v. Masskow, supra, and assume without deciding that the Federal Lydon decision reached a correct result under Federal law, although we do not accept, even as assumption, everything that is said in the opinion.
discussed Cited as authority (rule) Stratos v. Department of Public Welfare
Mass. · 1982 · confidence medium
E.g., Commonwealth v. Hill, 377 Mass. 59, 61 (1979). 9 We express no view on whether the fee setting criteria we describe would apply in the same fashion if the underlying § 1983 action were based on Federal statutory violations not affecting civil or equal rights. 10 In the interests of economy of time and expense, the litigants may agree to offer (as Stratos did in this case) affidavits as to this issue, perhaps including, with the approval of the judge, affidavits of the counsel of record. 11 As noted earlier, Stratos does not contest the judge’s finding that his counsel reasonably spent…
discussed Cited as authority (rule) Commonwealth v. Mascolo (2×) also: Cited "see"
Mass. App. Ct. · 1979 · confidence medium
Such an instruction was apparently viewed by the court in Trainor as "rooted in constitutional considerations,” and the defendants were therefore "entitled to the benefit of it.” Commonwealth v. Hill, 377 Mass. 59, 63 (1979).
discussed Cited "see" McCants v. Alves
D. Mass. · 2022 · signal: see · confidence high
See Commonwealth v. Hill, 385 N.E.2d 253, 256 (Mass. 1979) (recognizing that Balthazar’s holding was “rooted in constitutional considerations” and granting defendant new trial based on “fundamental fairness”).
cited Cited "see" Langton v. Commissioner of Correction
Mass. App. Ct. · 1993 · signal: see · confidence high
See Commonwealth v. Hill, 377 Mass. 59, 61 (1979). 3.
examined Cited "see" Schochet v. State (4×)
Md. · 1990 · signal: see · confidence high
See Commonwealth v. Hill, 377 Mass. 59, 62-63 , 385 N.E.2d 253, 256 (1979).
discussed Cited "see, e.g." Davis
Mass. App. Ct. · 1980 · signal: compare · confidence medium
Compare Balthazar v. Superior Court, 573 F.2d 698, 700-702 (1st Cir. 1978), with Commonwealth v. Hill, 377 Mass. 59, 61 (1979). (b) We do not have before us the issue of the validity of the petitioner’s guilty plea, and therefore we do not reach that issue.
discussed Cited "see, e.g." Commonwealth v. Appleby (2×)
Mass. · 1980 · signal: see also · confidence medium
See also Commonwealth v. Hill, 377 Mass. 59, 62-63 (1979) (applying Balthazar retroactively); Balthazar v. Superior Court, 573 F.2d 698, 699 (1st Cir. 1978) (dictum); People v. Onofre, 72 App. Div. 2d 268 (N.Y. 1980).
Commonwealth vs. James M. Hill
Massachusetts Supreme Judicial Court.
Jan 8, 1979.
385 N.E.2d 253
Alvin Jack Sims for the defendant., William T. Walsh, Jr., for the Commonwealth.
Hennessey, Braucher, Kaplan, Liacos, Abrams.
Cited by 21 opinions  |  Published
Braucher, J.

The defendant appeals from a conviction under G. L. c. 272, § 35, of an "unnatural and lascivious act with another person,” committed in September, 1969. The case was tried before our decision in Commonwealth v. Balthazar, 366 Mass. 298 (1974), [1] and it is contended that the indictment should be dismissed on the authority of Balthazar v. Superior Court, 573 F.2d 698 (1st Cir. 1978). We do not agree, but in view of the treatment of the issue of consent, we think fundamental fairness requires a new trial.

In October, 1972, the defendant was indicted for rape and for committing an unnatural and lascivious act. [2] After a mistrial in October, 1973, he was tried by jury in April, 1974, acquitted of rape, and convicted of an unnatural and lascivious act. Pending appeal he was admitted to bail by a single justice of this court. In October, 1977, he filed a motion for new trial, which was denied in December, 1977.

There was evidence of the following events. The defendant met the victim on September 29, 1969. After dinner and drinks, they went to the defendant’s motel room. Later the victim tried to drive home, but stopped in a[*61] parking lot and went to sleep. The defendant took her back to his room. When she awoke she was naked. The defendant beat her and forced her to engage in intercourse, cunnilingus and fellatio. She believed the defendant had drugged her. She first reported these events on October 16, 1969.

1. Vagueness. In Balthazar v. Superior Court, 573 F.2d 698, 700-702 (1st Cir. 1978), a divided court held G. L. c. 272, § 35, "vague as applied.” The majority first said that the issue before them was "not whether fair notice was given that these acts, if forced, were prohibited,” since force was not an element of the indictment and was not an issue at trial. Alternatively, treating the case as involving nonconsensual sexual acts of fellatio and oral-anal contact, they seem to have concluded that Balthazar could reasonably believe that such acts did not deviate from "accepted customs and manners,” as required by Jaquith v. Commonwealth, 331 Mass. 439, 442 (1954). One of the three judges disagreed "strongly” on the latter point.

Our decisions are contrary on both points. Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974). Commonwealth v. Hanscomb, 367 Mass. 726, 731 (1975). Commonwealth v. Jackson, 3 Mass. App. Ct. 941 (1975). Commonwealth v. Deschamps, 1 Mass. App. Ct. 1, 4-5 (1972). Cf. Commonwealth v. Morgan, 369 Mass. 332, 344-345 (1975), cert. denied, 427 U.S. 905 (1976) (point not argued). "We are of course bound by decisions of the Supreme Court on questions of Federal law, but we are not concluded by decisions of other Federal courts, although we give respectful consideration to such lower Federal court decisions as seem persuasive.” Commonwealth v. Masskow, 362 Mass. 662, 667 (1972). But our decision here is in effect reviewable by writ of habeas corpus in a United States District Court which would be bound by the Balthazar decision in the Court of Appeals. "It would be undesirable for us to affirm the conviction of a defendant if the inevitable consequence were that he would be[*62] released on a writ of habeas corpus.” Id. at 668. We therefore analyze the present case on the assumption that the Federal Balthazar decision reached a correct result under Federal law, although we do not accept, even as assumption, everything that is said in the opinion.

The present case does not involve freedom of expression or communication in a sense that would bring into play the "overbreadth” doctrine associated with the First Amendment to the Federal Constitution, and the defendant cannot invoke the rights of others in hypothetical situations. Commonwealth v. LaBella, 364 Mass. 550, 553-554 (1974). In the Balthazar case the statute was not held unconstitutional on its face, but only in its "application to the particular case.” 573 F.2d at 700. In the present case, unlike the Balthazar case, evidence was presented on the issue of consent, and we think the issue before us is whether the defendant, at the time he acted, was on fair notice that his conduct, in the totality of circumstances, was prohibited.

The jury could have found from the evidence that the defendant drugged the victim on the day he met her, took her to his motel room, undressed her while she was unconscious, and when she awoke beat her and forced her to engage in intercourse, cunnilingus and fellatio. They could further have found that such sexual behavior deviated from accepted customs and manners. We find it impossible to believe that any competent adult would be surprised at the conclusion that the conduct so found was prohibited. Thus there was no error in the denial of the defendant’s motion for a directed verdict.

2. Consent. In Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), we concluded that the statute "must be construed to be inapplicable to private, consensual conduct of adults.” That interpretation was required, we thought, by changes in community values in the years after the Jaquith decision in 1954. We relied on Supreme Court decisions dating from 1965. Balthazar’s acts took place in 1972, the acts of the present defendant in 1969.[*63] The Commonwealth now urges us to confine that Balthazar holding to cases arising after the decision. But that holding is rooted in constitutional considerations, and we think the defendant is entitled to the benefit of it. Commonwealth v. Reilly, 5 Mass. App. Ct. 435, 436-438 (1977).

The issue of consent was fully tried, and the jury was charged that the victim’s lack of consent was an element of the crime of rape. But no such charge was requested or given with respect to an unnatural and lascivious act. In other cases we have refused to consider the issue of consent when it had not been presented at trial. Commonwealth v. Morgan, 369 Mass. 332, 344 (1975), cert. denied, 427 U.S. 905 (1976). Commonwealth v. Balthazar, 366 Mass. 298, 302-303 (1974). Commonwealth v. LaBella, 364 Mass. 550, 554 (1974). But neither counsel nor the judge had the benefit of our decision in the Balthazar case, and we do not insist on exceptions where counsel could not have anticipated the ground of objection. Commonwealth v. Stokes, 374 Mass. 583, 587-590 (1978). Commonwealth v. Cook, 371 Mass. 832, 833 (1977). Since it is quite possible that consent was the basis of the verdict of not guilty on the rape charge, we think fundamental fairness requires that the defendant be afforded a new trial. See Balthazar v. Superior Court, 573 F.2d 698, 702 (1st Cir. 1978) (dissenting opinion).

Judgment reversed.

Verdict set aside.

1

Habeas corpus granted, 428 F. Supp. 425 (D. Mass. 1977), aff'd, 573 F.2d 698 (1st Cir. 1978).

2

The defendant was arrested in October, 1969, but fled. He turned himself in, in August, 1972.