33 Mass. App. Ct. 7 | Mass. App. Ct. | 1992
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 differenti
The indictments followed the statutory form set out in G. L. c. 277, § 79,
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 (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 un
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 (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 (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 (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.
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.l (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 (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.
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 jeop
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. Lauritsen, but, in the course of arguing the hearsay objection, the defendant clearly raised the claim of involuntariness, supported by an assertion of his counsel to the effect that the statements to Mr. Lauritsen were involuntary because, if he did not cooperate, he would be “kicked out of’ the university. The judge indicated that he saw little indication of involuntariness, particularly where the interrogator was a pri
*15 “Although the possibility of expulsion may make participation a wise choice, the hearing procedures do not place appellee ‘between the rock and the whirlpool.’ Garrity v. New Jersey, [385 U.S. 493, 498 (1967)]. He can, if he wishes, stay out of the stream and watch the proceedings from dry land. But, if he does so, he forfeits any opportunity to control the direction of the current. Appellee must decide whether or not to testify at the hearing with the knowledge that, if he does, his statements may be used against him in the criminal case.”
Moreover, the defendant’s statements to the investigator were, in relation to the theory of the defense, exculpatory in their effect. The defense counsel’s cross-examination of the accuser made clear that the defense was to be that any sexual activity was consensual, rather than that it did not occur. (The cross-examination took place well before the voluntariness issue was first raised.) The defendant’s statements to the investigator were entirely consistent with that strategy of the
In conclusion, the indictments were valid, and the guilty verdict can stand, at least in the absence of an independent ground for reversal. Apart from admission of the defendant’s statements, over objection and without conducting a voir dire, no independent ground for reversal is argued. As that ground cannot avail the defendant for the reasons stated, the conviction must stand.
Judgment affirmed.
“Rape . . . That A.B. did assault C.D. with the intent to commit rape; and did commit rape upon said C.D.”
United States v. Heinze, 361 F.Supp. 46, 49-51, 55-56 (D. Del. 1973), dealt simply with vaguely worded indictments, not with clear but identically worded indictments. In United States v. Bearden, 423 F.2d 805, 811 & n.8 (5th Cir.), cert, denied, 400 U.S. 836 (1970), the court indicated that Panzavecchia cast some doubt on the validity of convictions under two identically worded counts, but the court “pretermit [ted] discussions of these counts, solely as a matter of judicial convenience,” because the sentences on those counts were concurrent with other, valid sentences. United States v. Alford, 516 F.2d 941, 945 (5th Cir. 1975), cited Panzavecchia only for the general proposition that an indictment should sufficiently warn the defendant of the conduct charged to enable him to prepare his defense. United States v. McPhatter, 473 F.2d 1356, 1358 n.l (5th Cir.), cert, denied, 414 U.S. 834 (1973), merely distinguished Panzavecchia on the ground that the separate counts (in McPhatter) were not identical, each identifying a different check.
The Panzavecchia decision itself seemed to recognize that the indictments were not invalid ab initio: “The technicality of our decision in this matter is obviously pointed up by the fact that a judgment of conviction or acquittal on all counts would have obviated the present dilemma” (emphasis in original). 421 F.2d at 442. We acknowledge, however, our inability to reconcile the quoted statement with the opinion’s characterization of the indictment as “faulty” (id. at 440), incapable of cure by particulars (id. at 442), and with its conclusion that the government could retry Panzavecchia by obtaining “the issuance of a new indictment in proper form” (id. at 442).
The contrary conclusion of Panzavecchia was put on the basis that any particularization to differentiate identically worded indictments would, in effect, preempt the exclusive power of the grand jury to charge crimes, as contrasted with explicating the evidentiary details of a crime already charged. 421 F.2d at 442.
The relevant colloquy was as follows:
“The Court: Do you have any evidence that you want to present on the issue of voluntariness? I’m certainly willing to do a voir dire of this particular witness. I’m certainly willing, in front of the jury, to allow the Commonwealth to lay a foundation as to what the discussions were, and the environment of the discussions, and then hear you at the sidebar as to whether or not there’s a reasonable doubt as to whether there’s — whether the statement was voluntary.
“[The Defendant’s Counsel]: I couldn’t do that, your Honor, unless and until Mr. Gideonse was present. And, quite frankly, I didn’t anticipate that this would occur, so that I have not subpoenaed him.”
We recognize that the judge indicated thereafter that he did not see a genuine issue of involuntariness, but he continued, “I will certainly keep my ears open. As the evidence unfolds at trial, I’d ask the Commonwealth to lay a foundation from statements, and I’d certainly hear you at the sidebar, and if you see a glimmer of involuntariness — and I would also be willing to instruct the jury that they must find his statement voluntary beyond a reasonable doubt, if you feel that — if you want that instruction at the end of the trial.” We interpret the judge’s reference to hearing counsel at sidebar as an allusion to his continuing offer to conduct a voir dire after the Commonwealth had laid the foundation for introduction of the defendant’s statements to Mr. Lauritsen.
Massachusetts Rule of Criminal Procedure 13(c)(2), 378 Mass. 873 (1979), requires that “[a] defense or objection which is capable of determination without trial of the general issue shall be raised before trial by
Another category of actual involuntariness focuses on statements made by a defendant while suffering from “a physical injury, physical illness, physical fatigue, mental illness, mental deficiency, or an abnormality caused by drugs or alcohol.” 1 LaFave & Israel, Criminal Procedure § 6.2(c), at 449 (1984). None of those is involved in the present case. See, e.g., Commonwealth v. Brady, 380 Mass. 44, 48-52 (1980); Commonwealth v. Allen, 395 Mass. 448, 454-457 (1985); Commonwealth v. Benoit, 410 Mass. 506, 511 (1991).
CounsePs ambiguous assertion did not amount to “the ‘affirmative,’ ‘credible’ evidence of involuntariness which triggers a Harris voir dire.” Commonwealth v. Brady, 380 Mass. at 50, referring to Commonwealth v. Harris, 371 Mass. 462, 571 n.3 & 472 (1976). Contrast Commonwealth v. Gallagher, 408 Mass. 510, 514-515 (1990), in which the defendant submitted, along with his pretrial motion for a voir dire, an affidavit stating that he was impaired by alcohol and cocaine at the time he made certain incriminating statements; and Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310 (1986), in which (on a motion to suppress evidence) defense counsel submitted an affidavit concerning testimony at a previous trial (the affidavit, challenged as not complying with rule 13(a)(2)’s requirement that the affidavit be signed by one with personal knowledge of the factual basis of the motion, was held sufficient to require a voir dire where a transcript of the prior proceedings was unavailable).
On the authority of Garrity v. New Jersey, 385 U.S. 493 (1967), the cases cited in the text, all dealing with disciplinary hearings at State universities for conduct which was also the subject of pending criminal proceedings, drew the distinction that, if the accused student’s Fifth Amendment right not to incriminate himself were not respected at the disciplinary hearing — if, in other words, he would face expulsion for refusing to testify, or adverse factual inferences could be drawn from his silence — his testimony could not be used against him in a subsequent criminal proceeding. For purposes of decision we have assumed, without deciding, that the same principle would apply in the context of a private university. Cf. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 19, 21 (1983).
The separate appeal from the orders denying several motions filed between the verdict and the sentence raises no issue not disposed of above. As the denials preceded the sentence, the appeal from the judgment subsumes the denials. A separate appeal is unnecessary as to presentence rulings.