Commonwealth v. Gonzalez, 437 Mass. 276, 281, 771 N.E.2d 134 (2002), cert. denied, 538 U.S. 962, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003). See Commonwealth v. Hrycenko, 417 Mass. 309, 316, 630 N.E.2d 258 (1994). "An acquittal occurs where there is a ruling on ‘the facts and merits’ ...."

Such an election may raise certain concerns. See, e.g., Commonwealth v. Hrycenko, 417 Mass. 309, 316–317, 630 N.E.2d 258 (1994) (convictions reversed where Commonwealth's identically worded indictments rendered it impossible to determine basis of jury's acquittals and convictions); Commonwealth v. Jones, 382 Mass. 387, 395 n. 10, 416 N.E.2d 502 (1981) (noting that Commonwealth may have to choose between charges where “necessary to protect the substantial rights of the defendant”); Commonwealth v. Benjamin, 358 Mass. 672, 677–678, 266 N.E.2d 662 (1971) (expressing disapproval of repetitious and overlapping indictments where fewer will suffice). Here, the Commonwealth charged the defendant with six counts of possession of child pornography—each premised on photographs contained in the same cache at the same time—and the jury returned guilty verdicts on each of those six counts.

Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306 (1984). In Commonwealth v. Hrycenko, 417 Mass. 309, 316-317 (1994), we considered a claim of double jeopardy similar to the one asserted here. In that case, the defendant had been indicted six times for aggravated rape.

See Commonwealth v. Medina, 64 Mass. App. Ct. 708, 713, 835 N.E.2d 300 (2005). Although the Massachusetts Declaration of Rights does not include an explicit guarantee of freedom from multiple prosecutions or punishments for the same crime, "protection against double jeopardy in this Commonwealth has long been part of the common law," Commonwealth v. Hrycenko, 417 Mass. 309, 316, 630 N.E.2d 258 (1994), quoting Lydon v. Commonwealth, 381 Mass. 356, 366, 409 N.E.2d 745 (1980), and has become part of our statutory canon, see G. L. c. 263, § 7. Our rule, like its Federal constitutional corollary, protects criminal defendants against being subjected to consecutive prosecutions for the same offense after acquittal or conviction, and against multiple punishments for the same offense absent an explicit legislative intent to permit multiple punishments.

For that purpose, all that is required is that the indictment or complaint, read with the bill of particulars, be sufficient to give the accused reasonable knowledge of the crime so as to enable him or her to prepare a defense. Commonwealth v. Hrycenko, 417 Mass. 309, 313 (1994). Measured by that standard, the Commonwealth's attempts to comply with the order for particulars were sufficient.

"[I]dentically-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." Commonwealth v. Hrycenko, 417 Mass. 309, 313 (1994). The record appendix contains docket entries indicating that a motion for a bill of particulars was filed on May 11, 1995, and "agreed to" on May 25, 1995. There is nothing more in the record to show what response or agreement was made by the government.

Rewis v. United States, 401 U.S. 808, 811-812 (1971). See United States v. Bass, 404 U.S. 336, 347-348 (1971); Commonwealth v. Hrycenko, 417 Mass. 309, 317 (1994). The defendants, in support of their claim to protection by treaty of their fishing rights, point to the Treaty of Falmouth of 1727 (which further ratified certain prior treaties) and to the Treaty of Falmouth of 1749.

The government did not "walk[ ] into the wrong forum" but, rather, failed properly to charge the defendant. See Commonwealth v. Hrycenko, 417 Mass. 309, 318, 630 N.E.2d 258 (1994), citing G. L. c. 263, § 7 ("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"). See also United States v. Ball, 163 U.S. 662, 669–670, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) ("although the indictment was fatally defective, ... if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable ...").

(internal quotation marks omitted)); Goforth v. State, 70 So.3d 174, 190 (Miss.2011) (holding that defendant who was acquitted on three of five identically worded counts “cannot be prosecuted again on these charges or for any same crimes that occurred during the time period set forth in her indictment” when the convictions were reversed for other grounds); Brown v. Superior Court, 187 Cal.App.4th 1511, 114 Cal.Rptr.3d 804, 820 (2010) (concluding that “the prosecutor has not shown, and cannot show, that none of the acquittals pertained to the ... incident [being prosecuted]” and that “[d]ouble jeopardy precludes the retrial of [the] count”); Commonwealth v. Hrycenko, 417 Mass. 309, 630 N.E.2d 258, 263 (1994) (“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.”);

Commonwealth v. Figueroa, 9 N.E.3d 812, 830-31 (Mass. 2014). Accord Connolly v. State, 539 So. 2d 436, 443 (Ala. Crim. App. 1988); State v. Butrick, 558 P.2d 908, 912 (Ariz. 1976); People v. Superior Court, 2 Cal. Rptr. 2d 389, 399 (1991); Ortiz v. District Court In and For Las Animas County, 626 P.2d 642, 645 (Colo. 1981); State v. Almeda, 455 A.2d 1326, 1330 (Conn. 1983); State v. Munson, 243 A.2d 691, 692 (Del. Super. Ct. 1968); Williams v. State, 700 S.E.2d 564, 566 (Ga. 2010); State v. Feliciano, 618 P.2d 306, 311 (Haw. 1980), superseded by statute on other grounds as recognized in State v. Kalaola, 237 P. 3d 1109 (Haw. 2010); Causey v. State, 266 N.E.2d 795, 797 (Ind. 1971); Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky. 1978); State v. Chaplin, 286 A.2d 325, 334 (Me. 1972); Commonwealth v. Hrycenko, 630 N.E.2d 258, 263 (Mass. 1994); People v. McPeters, 448 N.W.2d 770, 773 (Mich. Ct. App. 1989); State v. Favell, 536 S.W.2d 47, 51 (Mo. Ct. App. 1976); State v. George, 527 N.W.2d 638, 643 (Neb. Ct. App.,1995); State v. Fielder, 118 P.3d 752, 758 (N.M. Ct. App. 2005); Kitt v. Haft, 473 N.Y.S.2d 3, 4 (1984), disapproved on other grounds by People v. Boettcher, 513 N.Y.S.2d 83, 87 (1987); State v. Arnold, 392 S.E.2d 140, 150 (N.C. Ct. App. 1990); Commonwealth v. Dooley, 310 A.2d 690, 692 (Pa. Super. Ct. 1973); Pope v. State, 509 S.W.2d 593, 595 (Tex. Cnm. App. 1974); State v. Low, 192 P.3d 867, 880 (Utah 2008); State v. Linton, 93 P.3d 183, 186-87 (Wash. Ct. App. 2004).