COMMONWEALTH vs. PETER HRYCENKO.

NOLAN, J. 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

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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 (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. [Note 1] The convictions on the other indictments were placed on file with the defendant's

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consent. The defendant has appealed and we transferred the case to this court on our own motion. [Note 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, Section 47A (1992 ed.), is deemed to have waived this defense. [Note 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 (1992), has held against his position on this very issue. [Note 4] We agree

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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, Section 34 (1992 ed.). [Note 5] Both of the defendant's indictments for aggravated rape follow the statutory form set out in G. L. c. 277, Section 79 (1992 ed.). We have consistently held that indictments that follow the statutory form are constitutionally sufficient. Commonwealth v. Daughtry, ante 136, 141-142 (1994). We see no reason to except identically-worded indictments from this rule.

In Watkins, supra at 11-12, 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

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[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 (1989), S.C., 406 Mass. 1001 (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. [Note 6] In fact, defense counsel received

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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. [Note 7]

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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 (1969), "protects against a second prosecution for the same offense after acquittal." Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306 (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 (1980). The defendant has the burden to prove that the retrial should have been barred by double jeopardy principles. Commonwealth v. Gonzalez, 388 Mass. 865, 868-869 (1983). We are aware of no case that has addressed this precise issue. We proceed guided by the fundamental principles underlying the prohibition against double jeopardy.

In an affidavit accompanying the defendant's motion to dismiss, defense counsel stated that the defendant was indicted six times for aggravated rape in identical language, that the defendant was convicted on two of these indictments and acquitted on four, that it was impossible from a review of the available records to determine on which allegations of rape the jury acquitted him and on which they convicted him, and that his convictions were reversed on appeal and remanded for a new trial. The Commonwealth concedes that it is impossible to determine the bases of the first jury's acquittals and convictions. We have reviewed the transcript of the grand jury proceeding and the entire record of the first trial and agree that no such determination can be made. Because of the uncertainty concerning the bases of the jury's acquittal and guilty verdicts at the first trial, the defendant was subjected at retrial to the risk that he would be convicted

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of the alleged rapes of which he had been acquitted. The double jeopardy clause declares that no person shall "be subject for the same offense to be twice put in jeopardy." The United States Supreme Court has held that the "twice put in jeopardy" language relates to the risk that an accused will be convicted for the same offense on which he has already been tried. Price v. Georgia, 398 U.S. 323, 326 (1970). The defendant could not have been retried on the two indictments on which the convictions were reversed on appeal without being subjected to the risk of conviction on a rape charge on which he had been previously acquitted. The defendant has met his burden. The motion judge should have granted the defendant's motion to dismiss the two indictments charging aggravated rape. This conclusion comports with the principle that "the basic premise of the criminal law [is] that ambiguities and doubts are to be resolved in favor of the accused." Commonwealth v. Wilson, 381 Mass. 90, 125 (1980).

In reaching this conclusion, we are unpersuaded by the Commonwealth's argument that the defendant's failure to request a bill of particulars prior to the first trial waived his subsequent double jeopardy claims at the retrial. We conclude that it would be unreasonable to impose on an accused on the eve of trial the responsibility to seek specifications of identically-worded indictments so that, in the unlikely event that the jury later returns split verdicts on the indictments and, on appeal, the convictions are reversed and remanded for retrial, that the Commonwealth may then proceed to retrial unfettered by any concern of the bar of double jeopardy. This eventuality is more properly regarded as the concern of the Commonwealth, which seeks the indictments before the grand jury. More importantly, this argument fails to appreciate the role bills of particulars plays in our jurisprudence. The Commonwealth erroneously infers that, since a defendant's failure to request a bill of particulars prior to trial waives his right to object to the defective nature of an indictment, this failure also waives the defendant's right to be protected

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from reprosecution for the same offense. [Note 8] Although only applicable where there is a subsequent indictment, G. L. c. 263, Section 7 (1992 ed.), is instructive. It provides that, when a defendant has been previously acquitted on the facts and merits on an indictment, the fact that the indictment was defective in form or in substance does not prevent the defendant from raising the acquittal as a bar against subsequent prosecution for the same crime. The defendant did not waive his right to claim the bar of double jeopardy when he failed to request a bill of particulars before the first trial. The defendant's two convictions of aggravated rape are reversed.

We next address other issues raised by the defendant as they relate to his other convictions.

2. Refusal to permit cross-examination of victim as to a prior claim of sexual assault. The defendant claims that his constitutional rights to present a full defense were denied by the trial judge's refusal to permit him to cross-examine the victim on a charge she had previously made against another for sexual assault. [Note 9] At a voir dire hearing, defense counsel offered a police report that indicated that, approximately two months before the incident in question, the victim claimed that she was picked up hitchhiking and then sexually assaulted.

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The police report also indicated that the investigation ended after the victim failed to go to the police station and attempt to identify a photograph of her assailant. The defendant claims that the evidence offered was sufficient to fall within the exception to the rule prohibiting the impeachment of a witness with evidence of prior false accusations. See Commonwealth v. Bohannon, 376 Mass. 90, 93-95 (1978), S.C., 385 Mass. 733 (1982). We disagree. As we have recently made clear, the exception in Bohannon is a narrow one. Commonwealth v. Lavelle, 414 Mass. 146, 151 (1993). A necessary circumstance for this exception is that there is "a basis in independent third-party records for concluding that the prior accusations of the same type of crime had been made and were false." Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979). Evidence that the victim failed to pursue a claim is not evidence that the claim was falsely made. See Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 491 (1987). The defendant failed to make an offer of proof sufficient to meet the exception in Bohannon. There was no error.

3. Restrictions on the defendant's cross-examination. The defendant argues that the trial judge's exclusions of certain questions on cross-examination denied him his constitutional right to a full and effective cross-examination. His contentions do not merit extended discussion. First, he fails to support his specific arguments with any case or statutory law. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Second, each of these questions was properly excluded because the anticipated answer would have been prejudicial and of questionable relevancy. Third, even assuming that the judge abused his wide discretion in determining the scope of cross-examination, Commonwealth v. Corcoran, 252 Mass. 465, 486 (1925), the defendant has not shown any resulting prejudice. No error has been shown.

4. Conclusion. For the reasons discussed above, we hold that retrial of the two indictments charging aggravated rape violated the prohibition against double jeopardy. The judgments against the defendant on these indictments are reversed

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and the verdicts are set aside. These indictments are to be dismissed. The remaining convictions are affirmed. This case is remanded to the Superior Court for resentencing.

So ordered.