Com. v. Hrycenko

• Decision Date: 14 March 1994
• Citation: 417 Mass. 309,630 N.E.2d 258
• Parties: COMMONWEALTH v. Peter HRYCENKO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 258

630 N.E.2d 258

417 Mass. 309

COMMONWEALTH v. Peter HRYCENKO.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Feb. 8, 1994.

Decided March 14, 1994.

Robert L. Sheketoff, Boston, for defendant.

Robert C. Cosgrove, Asst. Dist. Atty., for Com.

Before WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

NOLAN, Justice.

Today we decide whether the double jeopardy clause of the Fifth Amendment to the United States Constitution and the corresponding protections against double jeopardy provided by State law bar retrial after conviction on one indictment is reversed, where the wording of the indictment is identical to the wording of another indictment on which the defendant was acquitted, and the defendant has shown that it cannot be determined on which alleged offense the jury acquitted him and on which they convicted him. Because we determine that, in these circumstances, the Commonwealth should bear the risk that identically-worded indictments will later cause the defendant to be subjected to a retrial on an acquitted charge, we hold that the judge erred in failing to dismiss the two indictments charging the defendant, Peter Hrycenko, with aggravated rape and reverse his convictions on these indictments. We reach this conclusion even though the uncertainty regarding a retrial may have been avoided if the defendant had exercised his right to request a bill of particulars prior to the first trial. As for the defendant's other contentions of error, we disagree and, accordingly, affirm the remaining convictions of assault by means of a dangerous weapon, kidnapping, and possession of cocaine.

In January, 1989, a grand jury returned twelve indictments against the defendant. All the indictments arose from an incident on September 25, 1988, where the defendant, along with his wife, allegedly picked the victim up while she was hitchhiking one morning in Brockton and, at gunpoint, drove her to their home in Sharon. There the defendant allegedly raped the victim many times over the course of that day while his wife watched with a gun. Six of the indictments charged the defendant with aggravated rape. These indictments were identical, except for their indictment numbers. The other six indictments charged the defendant with kidnapping, assault by means of a dangerous weapon, threatening to kill, and possession of controlled substances (cocaine, marihuana, and lidocaine).

The defendant did not request a bill of particulars prior to the first trial. At the first trial, the defendant was acquitted on four of the six indictments charging aggravated rape and was convicted on all the remaining indictments. On appeal, the Appeals Court reversed his convictions and remanded the case for a new trial, concluding that the trial judge had improperly allowed the jury to view during deliberations certain prejudicial photographs which had been excluded at trial. Commonwealth v. Hrycenko, 31 Mass.App.Ct. 425, 432, 434, 578 N.E.2d 809 (1991). Prior to retrial, the defendant filed a motion to dismiss the two remaining aggravated rape indictments, arguing that retrial of these indictments was barred by the prohibition against double jeopardy. This motion was summarily denied. The defendant was then retried and convicted on all charges. The defendant was then sentenced to five concurrent terms: two terms of from nine to twelve years on the aggravated rape indictments, two terms of from nine to ten years on the assault by means of a dangerous weapon and kidnapping convictions, and a term of two and one-half years on the conviction for possession of cocaine. ¹ The convictions on the other indictments were placed on file with the defendant's consent. The defendant has appealed and we transferred the case to this court on our own motion. ²

1. The two aggravated rape indictments. The defendant contends that his convictions on the two aggravated rape indictments should be reversed. His first ground for reversal is that the indictments on which the convictions stand were defective as a matter of law because, being written in identical language, they failed sufficiently to apprise him of the charges against him thereby leaving him unable adequately to prepare his defense and to plead former jeopardy. We have never decided whether identically-worded indictments are constitutionally defective as a matter of law. The defendant, however, failed to raise this issue prior to his first trial and, under G.L. c. 277, § 47A (1992 ed.), is deemed to have waived this defense. ³ Furthermore, he failed to argue this issue on his first appeal. Indeed, the defendant must have regarded his chances for relief on this issue as slim since his argument in his brief comprises only three sentences. However, because the resolution of this issue may affect our disposition of other issues properly raised on this appeal, we address this issue and hold that the defendant's 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 identically-worded indictments are not defective if the defendant has the opportunity to obtain, through a bill of particulars, sufficient information to enable him to understand the charges against him and to prepare his defense. See G.L. c. 277, § 34 (1992 ed.). ⁵ Both of the defendant's indictments for aggravated rape follow the statutory form set out in G.L. c. 277, § 79 (1992 ed.). We have consistently held that indictments that follow the statutory form are constitutionally sufficient. Commonwealth v. Daughtry, 417 Mass. 136, 141-142, 627 N.E.2d 928 (1994). We see no reason to except identically-worded indictments from this rule.

In Watkins, supra 33 Mass.App.Ct. at 11-12, 595 N.E.2d 786, the Appeals Court expressly did "not consider ... whether retrial would be barred by principles of double jeopardy ... in the event that there should exist an independent ground for reversal." Unlike the defendant in Watkins, the defendant at bar successfully obtained reversal of his convictions on an independent ground and now argues that the retrial should have been barred under Federal and State double jeopardy protections. Before we may address this issue, however, we must disagree with the Commonwealth's contention that the defendant failed to preserve this issue for appellate review. "Protection against [double] jeopardy is a fundamental constitutional right but that status alone has not put beyond the pale the idea that it may be waived by failure to raise it at a lower level." Commonwealth v. Norman, 27 Mass.App.Ct. 82, 87, 534 N.E.2d 816 (1989), S.C., 406 Mass. 1001, 545 N.E.2d 1155 (1989).

Although the Commonwealth acknowledges that, prior to retrial, the defendant filed a motion to dismiss the two aggravated rape indictments on the ground that a retrial on these indictments would violate his rights as to double jeopardy, and that a motion judge subsequently denied this motion, it maintains that the defendant nevertheless abandoned this issue and waived his appellate rights by failing to file a second motion to dismiss after the trial judge decided to reconsider the denial of the first. The Commonwealth contends that on April 27, 1992, the day set for trial, defense counsel requested the judge to reconsider the denial of the prior defense counsel's motion to dismiss, that the judge ruled that the motion would be reconsidered or, in the alternative, that a new motion to dismiss should be filed, that defense counsel stated that he would file a new motion the next day, and that he failed to do so. A review of the record, however, makes certain that the actions taken by defense counsel which the Commonwealth contends constitute an abandonment of this issue, in fact, were efforts to assure that the defendant's appellate rights were preserved. ⁶ In fact, defense counsel received such assurances from the judge. The defendant sufficiently preserved his appellate rights prior to the retrial. We need not address the Commonwealth's other arguments on this issue.

The defendant's second ground for reversal of the two aggravated rape convictions is that, even if the two aggravated rape indictments are valid, the retrial on these indictments violated his Federal constitutional and State common law protections against double jeopardy. He contends that it cannot be determined which of the alleged rapes formed the basis of his two convictions and four acquittals at the first trial and that he may have been retried on allegations of which he was acquitted. He further argues that, since he is an accused, this doubt should be resolved in his favor. Although conceding that it is impossible to discern the basis of the jury's convictions and acquittals at the first trial, the Commonwealth argues that the defendant has the burden to prove former jeopardy and has failed to do so. In addition, the Commonwealth argues that the doubts were caused by the defendant's failure to request a bill of particulars before the first trial which would have likely prevented the uncertainties concerning the retrial. ⁷

The Fifth Amendment, applied to the States through the Fourteenth Amendment to the United States Constitution, see Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 2058, 23 L.Ed.2d 707 (1969), "protects against a second prosecution for the same offense after acquittal." Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311 (1984). Although we have never "explicitly stated that our Declaration of Rights includes a double jeopardy guarantee ... protection against double jeopardy in this Commonwealth has long been part of the common law" (citation omitted). Lydon v. Commonwealth, 381 Mass. 356, 366, 409 N.E.2d 745 (1980). The defendant has the burden to prove that the retrial should have...