State v. Allison, 90-003

• Decision Date: 31 July 1991
• Docket Number: No. 90-003,90-003
• Citation: 134 N.H. 550,595 A.2d 1089
• Parties: The STATE of New Hampshire v. Thomas E. ALLISON.
• Court: New Hampshire Supreme Court

Page 1089

595 A.2d 1089

134 N.H. 550

The STATE of New Hampshire v. Thomas E. ALLISON.

No. 90-003.

Supreme Court of New Hampshire.

July 31, 1991.

John P. Arnold, Atty. Gen. (William H. Lyons, Sr. Asst. Atty. Gen., on the brief and orally), for State.

Stephen T. Jeffco P.A., Portsmouth (Stephen T. Jeffco, on the brief and orally), for defendant.

JOHNSON, Justice.

The defendant was convicted of two counts of negligent homicide following a jury trial in Superior Court (Mohl, J.). In this appeal, the defendant asserts that the State improperly made an argument to the jury based on facts not disclosed in its response to the defendant's motion for a bill of particulars, that during its closing argument the State argued facts not in evidence, and that the trial court erred in denying the defendant the right to cross-examine the State's key witness on an issue relating to possible bias. We reverse and remand for a new trial.

The relevant facts are as follows. On the afternoon of June 5, 1988, the defendant was driving east on Route 51 in Hampton. At the same time, William Peach was driving west on Route 51. Behind Peach in the westbound lane was a car operated by Carl Bensen. When Peach, the only witness to the accident who testified at trial, first saw the car operated by the defendant, the defendant was driving east in the westbound lane; the defendant was evidently passing two other cars also travelling eastward. Prior to trial, Peach told the Hampton Police Department the day after the accident that the defendant's vehicle was 300 yards away when he first observed it. He then reiterated this same distance at a deposition five days before trial. However, at trial, Peach testified that the distance between his car and the defendant's car was approximately 700 yards when he first saw the defendant's car. This testimony was based on Peach's return to the accident scene with police officers after the deposition and just prior to the trial. One of the officers testified that they measured the distance to be about one-half mile.

The defendant's car never returned to the eastbound lane. Peach avoided a collision by pulling onto the shoulder. The defendant's car then collided with the car driven by Bensen. One passenger in each of the colliding cars was killed.

In his statements made prior to trial, both to the police and at deposition, Peach maintained that, to the best of his recollection, approximately four seconds elapsed from the time he first saw the defendant's vehicle until the defendant's vehicle passed him. However, at trial he testified: "I would say 8 to 10, in that area." These are the evidentiary facts the jury had before them on the issue of the amount of time that elapsed between the time Peach first saw the defendant's vehicle and the time their respective vehicles passed each other.

The defendant was subsequently indicted on two nearly identical counts of negligent homicide. RSA 630:3. In relevant part, one of the indictments alleges that Allison

"did negligently operate his motor vehicle east bound entirely in the west bound lane of Route 51 in Hampton, New Hampshire, and did negligently fail to keep his vehicle in the east bound lane, and did negligently fail to return his vehicle to the east bound lane, and did negligently fail to take evasive action but did rather negligently operate his motor vehicle directly into oncoming west bound traffic thereby striking a vehicle traveling in the west bound lane."

On September 13, 1988, the defendant filed a motion for a bill of particulars, requesting the following:

"1. A detailed description of each specific act, omission or occurrence which the State contends caused or contributed to the death of Patricia M. Benson and/or Dana L. Bruder, or to the injuries alleged suffered by them;

2. A detailed description of each specific act, omission or occurrence which the State contends constituted negligence, recklessness or reckless operation;

3. The time of day of each alleged act, omission or occurrence referred to in paragraphs one and two above 4. The detailed, specific place and location where each alleged act, omission or occurrence referred to in paragraphs one and two above took place;

5. A detailed description of all other acts or occurrences of the defendant alleged to have been in furtherance of the alleged crimes or alleged to have otherwise contributed to the death of Patricia M. Benson and/or Dana L. Bruder or the injuries suffered by them;

6. The amount of time each alleged act, occurrence or offense involved[.]"

(Emphasis added.) The State did not object to the motion, which the Superior Court (Gray, J.) granted on October 5, 1988, but the State did not thereafter file a bill of particulars. Rather, it orally represented that it could not provide more specific information as it was unaware of further details.

In a chambers conference immediately prior to closing arguments, the State indicated for the first time that it planned to argue that 16.5 seconds elapsed between the time Peach first saw the defendant's vehicle and the time their respective vehicles passed each other. This figure was calculated using three figures: the initial distance between the cars based on Peach's return to the scene as set forth above, which according to the measurements made by the police officers was about one-half mile; the speed of Peach's vehicle, which Peach testified was approximately fifty-five miles per hour; and the speed of the defendant's vehicle, which the State argued the jury could infer to be also fifty-five miles per hour, but upon which there was no evidence. The defendant objected to this argument. The court overruled the objections, and the State made the argument in its closing to the jury.

On appeal, the defendant first argues that the State's failure to make a responsive reply to his motion for a bill of particulars precluded the State from suggesting to the jury either the speed of the defendant's vehicle or the 16.5-second time period. In response, the State contends that the defendant's failure to object to proceeding to trial without a bill of particulars constituted a waiver of any objection on this issue.

"The purpose of a bill of particulars is to protect a defendant against a second prosecution for an inadequately described offense and to enable him to prepare an intelligent defense." State v. Superior Court, 106 N.H. 228, 232, 208 A.2d 832, 835 (1965). (Emphasis added). "[A] bill of particulars strictly limits the prosecution to proof within the area of the bill." United States v. Armco Steel Corp., 255 F.Supp. 841, 846 (S.D.Cal.1966); see State v. Boire, 124 N.H. 622, 624, 474 A.2d 568, 569-70 (1984).

The State's representation that it could not provide additional particulars was, in effect, a bill of particulars, albeit a rather unhelpful one. See State v. Boire, supra at 624-25, 474 A.2d at 569-70. The fact that the State's assertion was of a negative nature is irrelevant. Cf. Commonwealth v. Bartman, 240 Pa.Super. 495, 508-09, 367 A.2d 1121, 1127-28 (1976) (prosecution was bound by its assertion in a bill of particulars that it possessed no confessions or admissions of the defendant).

The defendant was entitled to rely on the State's representation. See United States v. Flom, 558 F.2d 1179, 1185 (5th Cir.1977); Commonwealth v. Bartman, supra, 240 Pa.Super. at 509, 367 A.2d at 1129. The State could at any time have modified its representation, see State v. Boire, supra, 124 N.H. at 624, 474 A.2d at 569, and filed a bill of particulars with some substantive content. See United States v. Rogers, 617 F.Supp. 1024, 1030 (D.Colo.1985) ("[i]f the government is unable to respond in precise terms at this time because it is uncertain as to the facts, the government should respond as precisely as it is able and thereafter adhere to a continuing duty to disclose promptly as additional or more precise facts become known"); cf. Daigle v. City of Portsmouth, 131 N.H. 319, 328-29, 553 A.2d 291, 297 (1988) (CONTINUINg duty to comply with discovery order). Filing a substantive bill would have allowed the State to expand the scope of the issues properly presentable at trial, although perhaps entitling the defense to a continuance. Cf. State v. Wells, 429 So.2d 502, 505 (La.Ct.App.) (continuance provided for by statute if defendant prejudiced), writ denied, 437 So.2d 1136 (La.1983); People v. Thomas, 106 Misc.2d 64, 432 N.Y.S.2d 317, 318 (N.Y.City Crim.Ct.1980) (same). Because the State chose not to avail itself of this option, it was extremely limited with respect to the use of evidence in those areas covered by the defendant's motion. Cf. State v. Boire, supra, 124 N.H. at 624, 474 A.2d at 569-70.

One of the factual areas in which the State maintained it could not provide further particulars was "[t]he amount of time each alleged act, occurrence or offense involved." This representation by the State, together with the fact that the indictments themselves alleged no such details, precluded the State from utilizing the duration of alleged acts in proving its case. Obviously, the amount of time which elapsed between the moment when Peach first saw the defendant's vehicle and the moment when their vehicles passed each other falls within the ambit of the defendant's request for particulars. Therefore, the trial court erred in allowing the State, over the defendant's objection, to argue in its closing that the relevant time span was 16.5 seconds.

The trial court's error was exacerbated by the timing of the State's argument. By waiting until just before its closing argument to disclose its intention to use the time information, the State greatly limited the opportunity of the defendant to attack the accuracy and relevance of the 16.5-second figure.

We do not agree with the State that the defendant waived any objection on these grounds by failing to take further action prior to trial. The defendant moved that the State be...