Com. v. Watkins, 90-P-1204

Citation33 Mass.App.Ct. 7,595 N.E.2d 786
Decision Date03 September 1992
Docket NumberNo. 90-P-1204,90-P-1204
PartiesCOMMONWEALTH v. Kevin WATKINS.
CourtAppeals Court of Massachusetts

Willie J. Davis, Boston, Marie Elena Saccoccio, Cambridge, with him, for defendant.

Daniel A. Less, Asst. Dist. Atty., for Com.

Before ARMSTRONG, IRELAND and GREENBERG, JJ.

ARMSTRONG, Justice.

The defendant, a second-year law student, was tried on two identically worded indictments for rape (same date, same victim) and was found guilty on one and not guilty on the other. The episode that gave rise to the indictments, according to the victim, an undergraduate at the same university, involved five or six penetrations, some vaginal and some oral, and, as the defendant sought no specifications (and as the judge gave no instructions) that differentiated the two charges, there is no way of ascertaining which portions of the victim's testimony the jury may have accepted and which they may have rejected. In these circumstances, the defendant argues, if the conviction is allowed to stand, he is deprived of the constitutional and common law protections against double jeopardy; and, more basically, he argues, the indictments were invalid ab initio because they did not comply with art. 12 of the Massachusetts Declaration of Rights, which requires that "[n]o subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him...."

The indictments followed the statutory form set out in G.L. c. 277, § 79, 1 adding only the date of the offenses. The statutory forms have been upheld as constitutionally sufficient from the decision in Commonwealth v. Jordan, 207 Mass. 259, 266-268, 93 N.E. 809 (1911), aff'd, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038 (1912), to, more recently, Commonwealth v. Green, 399 Mass. 565, 566-568, 505 N.E.2d 886 (1987), and Commonwealth v. Robertson, 408 Mass. 747, 749, 563 N.E.2d 223 (1990). See Smith, Criminal Practice & Procedure § 730 (2d ed. 1983). For purposes of double jeopardy protection, it is generally immaterial which act or acts the jury based their verdicts on, as a plea of either prior conviction or prior acquittal bars retrial on the offenses as to which the defendant was put in jeopardy. Id. at § 1316.

The doctrine of collateral estoppel, however, requires greater particularization. The protection afforded by collateral estoppel depends on "the concurrence of three circumstances: (1) a common factual issue (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the collateral estoppel bar." Commonwealth v. Lopez, 383 Mass. 497, 499, 420 N.E.2d 319 (1981). "The burden of showing these circumstances is always on the person raising the bar." Ibid. If it should be necessary to retry the indictment on which the defendant was convicted, he would be unable to carry that burden because he cannot identify the acts that were encompassed in the acquittal.

In arguing for dismissal of the indictment on which he was convicted, the defendant relies heavily on United States v. Panzavecchia, 421 F.2d 440 (5th Cir.1970), cert. denied, 404 U.S. 966, 92 S.Ct. 343, 30 L.Ed.2d 286 (1971). The indictment against Panzavecchia contained three counts of uttering counterfeit ten dollar bills. The counts stated the dates and places (by town) of the offenses and the series dates and serial numbers of the bills, but, as these were all the same, the counts read identically. The evidence was that Panzavecchia passed three counterfeit ten dollar bills from the same run in three different stores in the same town on the same day. The jury returned guilty verdicts on two counts and not guilty on the third. Id. at 441. With no independent ground for reversal, the circuit court ordered dismissal of the indictment, characterizing it as faulty for not differentiating the three counts--a fault which it held could not be cured by a bill of particulars (id. at 442). The indictment was said to be faulty, not because its counts did not "sufficiently apprise[ ] the defendant of what he must be prepared to meet," but because "in case any other proceedings are taken against him for a similar offense, ... the record [would not] show[ ] with accuracy to what extent he may plead a former acquittal or conviction." Id. at 441, quoting from Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962).

The Panzavecchia opinion has been cited infrequently, and, so far as we have found, never squarely followed. People v. Jordan, 19 Cal.App.3d 362, 97 Cal.Rptr. 570 (1971), cited by the defendant as following Panzavecchia, held only that, where identically worded indictments were attacked by demurrer before jeopardy had attached, the judge could properly anticipate the collateral estoppel problem that would result from a mix of acquittals and convictions and, acting in his discretion, could order the indictments dismissed with leave to return new, more specific indictments. 19 Cal.App.3d at 370-371, 97 Cal.Rptr. 570. It did not rule the indictments defective as matter of law. 2 More to the point is State v. Cassey, 543 A.2d 670 (R.I.1988), which dealt with three identically worded counts of first-degree sexual assault upon a child thirteen years of age or under. The counts specified no dates or places. The Rhode Island Supreme Court sustained the indictment, rejecting the Panzavecchia analysis, and reasoning that the defendant had ample opportunity, by way of discovery or a motion for a bill of particulars, to ascertain the times, places, and circumstances of the offenses alleged. Rhode Island law, the court held, "d[oes] not require 'that the indictment must be so distinct and minute in its allegations that it will constitute, without oral proof, a bar to another indictment.' " State v. Cassey, 543 A.2d at 675, quoting from State v. Jorjorian 82 R.I. 334, 344, 107 A.2d 468 (1954). Our law also envisions resort to the whole trial record to ascertain the collateral estoppel effect of an acquittal: "Where a question of collateral estoppel is raised, Ashe [v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970),] requires the Court to 'examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' " Commonwealth v. Lopez, 383 Mass. at 499, 420 N.E.2d 319, quoting from Ashe v. Swenson, 397 U.S. at 444, 90 S.Ct. at 1194. 3

The necessity of going beyond the words of an indictment to ascertain the preclusive effect of a verdict on the indictment, or to differentiate the indictment from one that is identically worded, has not, under our decisions, been treated as indicative of faulty indictments. In Commonwealth v. Coviello, 7 Mass.App.Ct. 21, 21 n. 1, 384 N.E.2d 1265 (1979), identically worded counts of an indictment for rape were tried by the parties on the basis that one was for forced oral intercourse, and the other, for forced vaginal intercourse; and in Commonwealth v. Gonzales, 5 Mass.App.Ct. 705, 706, 369 N.E.2d 1038 (1977), as explained in the Coviello decision, identically worded counts of an indictment for rape were differentiated by a posttrial stipulation of the parties (to the effect that one count was for vaginal intercourse, the other for anal intercourse). In Gonzales, a conviction was affirmed; in Coviello, retrial on the counts was ordered based on evidentiary points. These dispositions were, of course, inconsistent with the defendant's contention in this case, that indictments so framed are facially defective. 4

We conclude, therefore, that the fact that the indictment on which the defendant was convicted is identical to the indictment on which he was acquitted is not, by itself, a ground for reversal. We need not consider the question whether retrial would be barred by principles of double jeopardy or collateral estoppel in the event that there should exist an independent ground for reversal, because such is not the case.

The only independent ground for reversal advanced by the defendant is the admission in evidence, over objection, of the defendant's statements to one Mr. Marc Lauritsen, an attorney at law and employee of the university who, at the university's request, conducted an investigation into the charges brought by the alleged victim. In connection with that investigation, cognizant that criminal charges of rape were being pressed by the public authorities, the university provided the defendant with an attorney, Mr. Martin Gideonse, also a university employee, to advise him during the university's internal investigation. The defendant, with Mr. Gideonse present, cooperated with the investigator, answering questions and giving his side of the story (in essence, that the acts of sexual intercourse took place but were consensual). These statements came into evidence as part of the Commonwealth's case, through the investigator, over the defendant's objection and after his request for a voir dire.

The objection was raised orally, while the trial was ongoing, the day the investigator, Mr. Lauritsen, was to testify. Before trial the defendant had filed two written motions in limine, one seeking a voir dire as to the voluntariness of the defendant's statement given to police officers at the time of his arrest, the other seeking a voir dire to determine whether the defendant's statements made to Mr. Lauritsen were inadmissible hearsay. The first was waived expressly; the second was denied, but that ruling is not pressed as a ground for reversal. Neither motion, as written, raised a question as to the voluntariness of the defendant's statements to Mr....

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4 cases
  • Com. v. Hrycenko
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 d1 Março d1 1994
    ...argument would fail even if properly raised. As the defendant concedes in his brief, the Appeals Court, in Commonwealth v. Watkins, 33 Mass.App.Ct. 7, 595 N.E.2d 786 (1992), has held against his position on this very issue. 4 We agree with the Watkins court's reasoning and hold that identic......
  • Commonwealth v. Watkins
    • United States
    • Appeals Court of Massachusetts
    • 9 d1 Abril d1 2018
    ...The defendant filed a timely notice of appeal, and on July 14, 1992, this court affirmed his conviction. See Commonwealth v. Watkins, 33 Mass. App. Ct. 7 (1992). Twenty-three years later, the defendant—represented by new appellate counsel—filed a motion for postconviction relief, which a ju......
  • Com. v. Taylor
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 d3 Dezembro d3 1997
    ...physical or psychological coercion, see Commonwealth v. Allen, 395 Mass. 448, 455-456, 480 N.E.2d 630 (1985); Commonwealth v. Watkins, 33 Mass.App.Ct. 7, 14, 595 N.E.2d 786 (1992), or proof that the defendant is suffering from a physical or mental infirmity or an abnormality caused by drugs......
  • Com. v. Watkins
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 d4 Setembro d4 1992
    ...N.E.2d 171 413 Mass. 1105 Commonwealth v. Watkins (Kevin) Supreme Judicial Court of Massachusetts. Sept 03, 1992 Appeal From: 33 Mass.App.Ct. 7, 595 N.E.2d 786. ...

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