October 14, 1994 [NOT FOR PUBLICATION]
UNITED STATE COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1064
KEVIN WATKINS,
Petitioner, Appellant,
v.
PAUL J. DiPAOLO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
Willie J. Davis with whom Marie Elena Saccoccio and Davis,
Robinson & White were on brief for petitioner.
Neil S. Tussel, Assistant Attorney General, Criminal Bureau, with
whom Scott Harshbarger, Attorney General, and Elisabeth J. Medvedow,
Assistant Attorney General, Criminal Bureau, were on brief for
respondent.
Per Curiam. This is a petition for habeas corpus
by Kevin Watkins, hereinafter defendant, who is serving a
sentence for rape imposed following his conviction in the
Massachusetts Superior Court. The case is properly here, his
state appeal having been taken and denied. Commonwealth v.
Watkins, 33 Mass. App. 7, review denied, 413 Mass. 1105
(1992). At the same time, of course, we confine ourselves to
the case there presented, and presented below. Rose v.
Lundy, 455 U.S. 509, 518-19 (1982); Nadworny v. Fair, 872
F.2d 1093, 1096 (1st Cir. 1989).
The principal issue is somewhat unusual, at least
until recently. Defendant and the victim were student
friends who engaged in sex, and then broke up. Before the
break-up, defendant had made a video tape, and thereafter the
victim asked for it. After some negotiations, defendant
agreed to sell it to her for $10. She came to his apartment
for that purpose and was, allegedly, raped, naturally and
"unnaturally" (orally). Mass. Gen. L. c. 271, 39. There
followed two indictments in customary form,1 identically
worded, and hence failing to designate the particular act.
Both were tried together, without identification; nor did the
jury ask. Defendant did not complain.
1. Mass. G. L. c. 277, 79. See Commonwealth v. Hrycenko,
417 Mass. 309, 313, 630 N.E.2d 258, 261 (1994).
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This blindman's bluff continued, with the jury
finding defendant not guilty on indictment 89-2834 and guilty
on 89-2835. Defendant did not ask the court to make inquiry
when the jury returned, and the verdicts were recorded, still
blind. Although it seems reasonable to assume, where the
evidence of the two acts had been introduced chronologically,
that the jury followed the same pattern, we agree with
defendant that this is not inescapably so. However, we
cannot agree that this means that the petit jury could not
know if "it was . . . deliberating on the same conduct in the
mind of the grand jury in issuing the indictments." The
grand jury found probable cause for both charges, and,
therefore, necessarily for the one the petit jury picked.
Defendant concedes that he had full notice of the
charges, and adequate opportunity to prepare and defend. "He
simply did not have notice as to which indictment pertained
to which activity. Ordinarily, the indictments simply
charging 'rape' would have been sufficient. But an ambiguity
arose when the jury acquitted on one and convicted on the
other. It was only at this time that the sufficiency of the
indictments was called into question." (Defendant's
Memorandum to district court; emphasis supplied). No
ambiguity "arose" upon the verdicts; if lack of specificity
because of special circumstance troubled defendant, he had
always been free to seek particulars, Commonwealth v.
-3-
Hrycenko, n.1, ante; Mass. R. Crim. P. 13(b)(1). And how was
ignorance prejudicial?
Defendant's complaint really comes down to his
claim of inability, in the future, to plead double jeopardy.
This claim is exactly answered by Hrycenko, which defendant
cites. It is irrelevant if Hrycenko may be bad federal law -
- which we would not think. As only state crimes are
involved, the contention is frivolous; he is necessarily
state protected.
Affirmed.
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