Commonwealth v. O'NEAL

339 N.E.2d 676, 369 Mass. 242, 1975 Mass. LEXIS 798

Opinions

By the Court.

Pursuant to our order in Commonwealth v. O’Neal, 367 Mass. 440, 450 (1975), the parties and amici have presented arguments as to whether the State has a compelling interest in retention of the death penalty. We now address the issue whether the mandatory death penalty for murder committed in the course of rape or attempted rape, G. L. c. 265, § 2, is constitutional. For the reasons stated in the concurring opinions which follow, we hold that the mandatory death penalty for murder committed in the course of rape or attempted rape violates the Massachusetts Declaration of Rights and is unconstitutional. Accordingly, the judgment on the murder indictment, in so far as it imposes the death sentence, is reversed, and the case is remanded to the Superior Court where the defendant is to be resentenced to imprisonment for life. See Commonwealth v. LeBlanc, 364 Mass. 1, 14-15 (1973); Commonwealth v. Cassesso, 368 Mass. 124 (1975). The other judgments appealed from are affirmed.

So ordered.

Chief Justice Tauro and Justices Hennessey, Wilkins and Kaplan concur in the order of the court. Justice Braucher concurs in the result only. Justices Reardon and Quirico dissent.