603 P.2d 468 (Alaska 1979), 2987, Lupro v. State

Docket Nº:2987.
Citation:603 P.2d 468
Opinion Judge:MATTHEWS, Justice.
Party Name:Robert F. LUPRO, Appellant, v. STATE of Alaska, Appellee.
Attorney:William F. Brattain, II, Fairbanks, for appellant. Anne Carpeneti, Asst. Atty. Gen., Daniel W. Hickey, Chief Prosecutor, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Judge Panel:Before RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ., and ROWLAND, J. (sitting as supreme court justice).
Case Date:November 09, 1979
Court:Supreme Court of Alaska

Page 468

603 P.2d 468 (Alaska 1979)

Robert F. LUPRO, Appellant,


STATE of Alaska, Appellee.

No. 2987.

Supreme Court of Alaska

November 9, 1979

Page 469

[Copyrighted Material Omitted]

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William F. Brattain, II, Fairbanks, for appellant.

Anne Carpeneti, Asst. Atty. Gen., Daniel W. Hickey, Chief Prosecutor, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ., and ROWLAND, J. (sitting as supreme court justice).


MATTHEWS, Justice.

Robert Lupro appeals from a conviction on both counts of a two-count indictment charging him with the crimes of negligent homicide and failure to render assistance to an injured person. He contends that the trial court used an incorrect standard in determining that he was culpably negligent

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in causing the death of the decedent, Elmer Jacobsen, that evidence was admitted at trial that was improperly seized in violation of his right to protection from unreasonable searches and seizures, that the trial court permitted improper challenges for cause to veniremen who had been accused or convicted of offenses against the state, and that the trial court allowed improper impeachment of his alibi witness by admitting evidence of the witness' heroin usage and other "bad acts." Following a three week jury trial Lupro was found guilty. We affirm the conviction.

At trial the following facts were established. On the night of November 14, 1974, Juneau was subjected to a heavy rain and windstorm. Power went off for various periods throughout the city. The appellant, Lupro, attended a bachelor's party that night, which during the evening moved En masse from a private residence to the Juneau airport. Lupro was later ejected from the airport bar, and accompanied by a friend, Conrad Cerda, he returned to town in his Volkswagen Microbus van. Another friend who had been asleep or passed out in the back of the van made his presence known, and was taken home. Lupro was driving.

Lupro's story, which was disbelieved by the jury, was that after letting his passenger out he took Cerda to pick up the latter's truck, passing en route the intersection where the accident was to occur, and then parked his van in front of a bar. Cerda then picked up Lupro, and the two spent the rest of the evening riding in Cerda's truck and drinking beer. Cerda's testimony corroborated Lupro's account.

Lupro's van was later found outside of town, lying upside down at the bottom of a thirty foot embankment. It was taken into police custody and evidence later taken from the van firmly established that it was the vehicle that had struck the decedent.

The state sought to establish Lupro's guilt with circumstantial evidence. There was testimony indicating that Lupro was very intoxicated by the time he left the airport. At approximately 12:04 a. m. the decedent's co-workers left their place of employment and while so doing observed Jacobsen, alive drinking coffee. 1 Less than a minute later the witnesses saw a van discharge a passenger. They testified that it was making erratic stops and starts. 2 It was uncontroverted that at this point Lupro was operating the vehicle.

Other witnesses who were driving home from work testified that they saw a van leaving the scene of the accident seconds before they discovered the unconscious victim. The van was driving in the middle of the road without lights. Another vehicle arrived at the scene, and an ambulance was sent for. There was considerable testimony to the effect that the accident was reported and an ambulance dispatched at 12:09 a. m. 3

Witnesses found the body lying approximately twenty to thirty feet 4 east of an intersection where there were stop signs. The body had been hit by a car travelling east. The victim's glasses were found twenty to thirty feet east of his body, having apparently been thrown that far by the impact of the vehicle.

The victim later died in a Seattle hospital, without regaining consciousness. The doctor who performed the autopsy testified that the victim had suffered the types of injuries associated with being hit by a vehicle travelling at a relatively high rate of speed.

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Lupro's defense was based in large part on his view that in order to sustain a conviction for negligent homicide the state would have to show not only that Lupro had been driving while intoxicated, but also that he had committed a particular act of negligence that proximately caused Jacobsen's death. In accordance with this view of the essential elements of negligent homicide, Lupro's counsel filed a motion for a bill of particulars pursuant to Criminal Rule 7(f). 5 The motion requested detailed information regarding all facets of the state's case including every fact to be proved by the state at trial, the names, addresses, telephone numbers and occupations of every witness to be called to prove those facts, and every item of physical evidence to be presented. The trial court denied this request and Lupro's attorney filed a second, more limited motion requesting the "overt acts" which the state intended to prove showing culpable negligence. This motion was also denied. Lupro contends that refusal to grant these motions effectively prevented him from finding out exactly what he was accused of and from preparing an adequate defense.

The purpose of a bill of particulars is to inform the defendant of the nature of the charges against him so that he may prepare a defense, to avoid prejudicial surprise at trial and to protect against a second prosecution for the same offense. United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972). The decision whether to grant the motion lies within the discretion of the trial judge. An abuse of discretion has been found where the defendant shows that he was actually surprised at trial and that his substantial rights were thus prejudiced. United States v. Addonizio, 451 F.2d at 64; United States v. Bearden, 423 F.2d 805, 809 (5th Cir. 1970); See 1 C. Wright, Federal Practice and Procedure, § 130 (1st Ed. 1969). Lupro has failed to demonstrate prejudice.

The information requested in this first motion was, in effect, a request for discovery of the state's case In toto and went far beyond the proper scope of a bill of particulars. See United States v. Armocida, 515 F.2d 49, 54 (3d Cir. 1975). Lupro's second motion, although more limited in scope, was also properly denied. Lupro claims that without a bill of particulars he was unable to determine exactly what the state intended to prove at trial. But Lupro had full access to the grand jury testimony of the witnesses who later testified. He also had access to police reports, witness interviews and test results. The sole question is whether adequate knowledge of the charge was provided. It is not necessary that such knowledge be contained in the indictment if it was provided in some other form. United States v. Schembari, 484 F.2d 931, 935 (4th Cir. 1973); United States v. Sullivan, 421 F.2d 676, 677 (5th Cir. 1971). Lupro argues that it was precisely the voluminous nature of the material made available by the state that made it impossible to cull out what was important to the state's case and what was not. The record, however, does not support this position. The bases for the claims made by the state were clear from the grand jury testimony. We believe that Lupro had adequate forewarning of what the state intended to prove at trial.


Applying his theory that an act of negligence separate from drunk driving is necessary to prove culpable negligence, Lupro challenged the sufficiency of the indictment. On appeal he breaks this down into essentially three claims: first, that count one of the indictment was facially insufficient because it failed to allege a necessary element of the offense charged; second, that insufficient evidence of negligence was

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presented to the grand jury to sustain the indictment; and third, that the prosecution failed to instruct the grand jury as to the proper standards of negligence to return an indictment. 6

Count one of the indictment alleged:

(t)hat on or about the 15th day of November, 1974, at or near Juneau, in the First Judicial District, State of Alaska, Robert F. Lupro did unlawfully, by his culpable negligence, kill another human being: to wit Elmer Johan Jacobsen, by striking him with a motor vehicle, a 1969 Volkswagen Microbus, Alaska License No. K-5432, of which he was the operator while and by driving under the influence of intoxicating liquor, all of which is contrary to and in violation of AS 11.15.080.

This statement is sufficient to meet the requirements of Criminal Rule 7(c), which provides in pertinent part:

The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . . No indictment is insufficient . . . by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.

The indictment need not state every element of the charge necessary to be proved at trial. State v. Thomas, 525 P.2d 1092, 1094 (Alaska 1974); Christian v. State, 513 P.2d 664, 667 (Alaska 1973). Here count one informed Lupro of the statute he had violated, and that he was charged with killing the decedent by driving his Volkswagen Microbus in a culpably negligent manner while intoxicated. We find that the language of the indictment was adequate.

Lupro also contends that the indictment should have been dismissed because insufficient evidence was presented to the grand jury. 7 It is Lupro's position that no evidence was presented from which the grand jury could conclude that he was acting negligently at the time the decedent was hit by the van.


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