*1 LUPRO, Appellant, Robert F. Alaska, Appellee.
STATE of
No. 2987.
Supreme Court of Alaska.
Nov. *3 Fairbanks, Brattain, II, F.
William appellant. Gen., Daniel Carpeneti, Atty.
Anne Asst. Hickey, Prosecutor, Avrum W. M. Chief Gross, Gen., Juneau, appellee. Atty. RABINOWITZ, CONNOR, Before MATTHEWS, JJ., BURKE and and ROW- LAND, [sitting supreme justice]. J. court OPINION MATTHEWS, Justice. from a conviction
Robert appeals indictment counts a two-count both charging him with crimes of homicide and failure to render assistance injured person. He contends standard trial court used an incorrect culpably determining that he decedent, custody and evidence later taken police causing the death Elmer Jacobsen, that evidence was admitted that it was firmly from the van established seized in violation improperly trial had struck the decedent. the vehicle that right protection from unreasonable sought The state to establish seizures, searches and that the trial court There guilt with circumstantial evidence. permitted improper challenges for cause Lupro was testimony indicating who had veniremen been accused or con- he very by the time left intoxicated state, against victed of offenses 12:04 a. m. the airport. approximately At trial improper court allowed place decedent’s co-workers left their impeachment of his alibi witness admit- employment doing observed and while so ting usage evidence of the witness’ heroin Jacobsen, than drinking Less alive coffee.1 Following and other “bad acts.” three saw a van a minute later the witnesses guilty. week was found They passenger. testified discharge a We affirm the conviction. *4 It starts.2 making stops it was and erratic At following trial the facts were estab- point Lupro at this was uncontroverted that 14,1974, night lished. the On November operating was the vehicle. Juneau subjected heavy was to a rain and windstorm. Power went off for various driving home Other witnesses who were periods throughout city. appellant, the The van they saw a from work testified Lupro, party attended a bachelor’s seconds of the accident leaving the scene night, en during evening which the moved vic- they before the unconscious discovered private masse from a residence to the Ju- middle of tim. in the The van was airport. Lupro ejected neau later was vehicle lights. the Another road without bar, airport accompanied the and aby scene, was an ambulance arrived at the and friend, Cerda, Conrad he returned town testimony was sent for. There considerable Volkswagen in his Microbus van. Another reported was the accident to the effect that asleep passed friend who had been out in a. m.3 at 12:09 dispatched and an ambulance presence the back of the van made his body lying approxi- Witnesses found known, Lupro and was taken home. was thirty east of an mately twenty to feet4 driving. signs. stop were intersection where there Lupro’s story, by which was disbelieved travelling by car body The had been hit a jury, passen- letting was that after his were found glasses east. The victim’s ger pick out he took up Cerda to the latter’s body, hav- twenty thirty feet east of his truck, passing en route intersection that far ing apparently been thrown occur, where the accident was to and then impact of the vehicle. parked his van a in front of bar. Cerda picked up Lupro, spent then two and the hospi- The victim later died in a Seattle evening the rest of the riding in Cerda’s tal, regaining consciousness. without truck drinking testimony beer. Cerda’s autopsy testified performed who doctor corroborated account. types that the victim had suffered by vehi- being hit injuries associated with Lupro’s van was later found outside of high rate of town, travelling relatively cle at a lying upside down at the bottom of thirty speed. It foot embankment. was taken into They complicated actually they was
1. 3. the exact time testified that had left work Evidence of m., testimony were inaccurate at 12:14 a. later the fact that electric clocks but established upon testimony power Time was established that the clock their due failure. testimony concerning largely based was ten fast at trial minutes morning. when it power checked the time that was restored. next forty- explained by Lupro being as 2. This was estimated the distance due One officer unfamiliarity sixty apart- his five to feet. the location of taking passenger. ments to which he was I requested The information in this effect, was, request first in motion Lupro’s defense was large part based in on his discovery view that order to sustain a the state’s case toto and con- viction homicide the state beyond proper scope went far a bill would have to show not that Lupro particulars. United States v. Armo See had intoxicated, but also cida, (3d 1975). Lupro’s 515 F.2d Cir. that he particular committed act of motion, although second more limited in negligence that proximately caused Jacob- scope, was properly also denied. sen’s death. In accordance with this view particulars claims without a bill of he essential elements of negligent homi- exactly unable to determine what cide, Lupro’s counsel filed a motion for a state prove intended to at trial. But particulars bill of pursuant to Criminal Rule grand testimony had full access to 7(f).5 The requested motion detailed infor- of the witnesses who later testified. He regarding mation all facets state’s police reports, also had access to witness including case every proved fact to be ques interviews and test results. sole trial, names, addresses, state at adequate knowledge tion is whether telephone occupations numbers and of every charge provided. necessary It is facts, witness to be prove called to those every physical knowledge item of evidence to be contained in presented. The trial court denied this re- provided indictment if it was some other quest Lupro’s attorney second, filed a Schembari, form. United 484 F.2d States more limited requesting motion the “overt (4th United States *5 acts” which the state prove intended to Sullivan, (5th 1971). 421 F.2d Cir. showing culpable negligence. This motion Lupro argues it volu precisely that was the was also denied. Lupro contends that re- minous nature of the material made availa grant fusal to these effectively pre- motions by impossible ble the state that made it finding vented him from exactly out what cull out to the important what was state’s he was accused of and from preparing an record, case and what was not. The how adequate defense. ever, position. The support does not this purpose The particulars of a bill of bases for the made the were by claims state is to inform the defendant of the nature of grand jury testimony. clear from the charges against the him so he may believe that Lupro adequate forewarn prepare defense, prejudicial to avoid sur ing prove of what the state intended to at prise at protect against trial and to a second trial. prosecution for the same offense. United Addonizio, States v. (3d 451 F.2d 63-64 1972). Cir. grant decision whether to II the motion lies within discretion of the Applying theory his that an act of judge. An abuse of discretion has separate from drunk been found where the defendant shows that necessary prove culpable negligence, Lu- he was actually surprised at trial and that pro challenged of sufficiency the indict his rights substantial were prejudiced. thus appeal ment. On he into breaks down Addonizio, United 64; States v. 451 F.2d at first, essentially three claims: that count Bearden, United States v. 423 F.2d facially one of the indictment was insuffi (5th see C. Wright, Federal allege necessary cient because Procedure, Practice it failed to (1st § Ed. (cid:127) 1969). second, Lupro charged; has failed to element the offense demonstrate
prejudice. negligence was that insufficient evidence of 5. The Rule reads: may permit. or at such later as the time court (f) particulars may A bill be amended Bill of Particulars. The court direct subject justice filing re- particulars. time to such conditions bill of A motion for quires. particulars may a bill of be made before ar- raignment days arraignment or within ten after culpably in a manner Microbus presented jury to grand to the sustain lan- We find indictment; third, intoxicated. prosecution that the while adequate. guage indictment grand jury as failed to instruct the negligence to return proper standards of in contends that also indictment.6 be have been dismissed dictment should presented evidence was cause insufficient alleged: one Count of the indictment Lupro’s position It is grand jury.7 on or Novem- day about the 15th [t]hat ber, 1974, which the presented no evidence Juneau, First at or near in the he was act grand jury conclude that could District, Alaska, Judicial Robert State the time the decedent ing negligently at unlawfully, by culpable F. did by hit the van. being: negligence, kill another human Jacobsen, striking wit Elmer Johan suffi- determining The standard for vehicle, him with a a 1969 Volks- motor supporting grand ciency of evidence Microbus, K- wagen Alaska License No. indictment is well settled: operator of which he was suffi- challenge to the Where is a there under influence supporting ciency intoxicating is con- liquor, all of which indictment, to be the question Jury Grand trary to and in violation of 11.15.080. AS evi- .is whether determined “. . detailed sufficiently presented a meet the dence This statement is sufficient to activity and 7(c), which account of criminal requirements Rule of Criminal de-. activity so participation in this provides fendant’s pertinent part: it or uncontradicted unexplained that ‘if . . . indictment shall person conviction of would warrant a plain, concise written state- and definite judge charged offense with an constituting ment of the facts essential ” jury trying the offense.’ . indict- charged. the offense .No (Alaska reason ment is insufficient ... P.2d Newsom matter of imperfection of a defect or 1975), quoting Taggard indictment, in the does not form rights of prejudice the substantial tend believe testimony we reviewing the After *6 the defendant. case, Lupro’s theory of even under that every not ele- The indictment need state evidence sufficient grand jury heard Mar- necessary proved of the John charge ment to be Officer the indictment. sustain 1092, Thomas, had glasses at trial. P.2d State v. 525 the victim’s shall testified that State, feet (Alaska 1974); twenty thirty 513 1094 Christian v. thrown some 664, 1973). indicating the victim (Alaska count that body, P.2d Here his relatively going vehicle Lupro one informed of the he had been hit a statute had driv- testimony others violated, that charged and he was with kill- There was that fast. fifteen going night were ten ing by driving Volkswagen ing decedent his jury grand Lupro power improper to allow 6. also restoration claims that evidence vicinity Lupro grand jury. deal was in was admitted before the to conclude that Any subsequent with this claim of the occurred. error in a section when the accident testimony opinion. Lupro argues 299- also that the v. 580 P.2d Webb harmless. Hugh Macauley, employee 1978); Taylor, (Alaska Alaska P.2d of an of the v. State Light Gieffels, Company, 1977); (Alaska Electric and Power was inad- State v. 6(r). hearsay 1974); missible Macauley (Alaska under Criminal Rule McKinnon 462 n. 3 regarding time when (Alaska testified State 526 P.2d power during to Juneau the storm restored Johnson, evening, important indication of an testimony exact time of His the accident. Rule is based Criminal 7. This contention upon a a Mr. Na- based conversation between grand pertinent part: 6(q) “The in which states observing gle a and a Mr. who Justice were evi- jury all the when find an indictment shall however, hearsay if Macau- clock. Even it was ley’s testimony unexplained together, or uncon- if taken dence tradicted, testi- was at most cumulative of a conviction would warrant point. mony on the same several others defendant.” ample There was the time of other evidence of per miles specific hour. The that a testimony theory also indi- act in cated that van may stop a sign run driving addition to is necessary drunken intersection, at the or at very least made a warrant his claims that conviction. evidence, fast start. This coupled with the proposed giving plaintiff’s instruc- substantial evidence Lupro’s negligent give tion number nine9 and the failure to driving immediately before after proffered number six his own instruction presented sufficiently accident a detailed Under were reversible error. instruction that, account of activity if uncon- nine of the crime of number the elements troverted, would warrant his conviction. require specif- negligent homicide did not finding negligence. ic act of particular of a Finally, Lupro attacks indict required that merely The instruction by claiming ment Attorney that the District killed Jacobsen jury find properly grand failed to instruct jury as “by culpable negligence his to the necessary negligent elements of driving a motor under the influence homicide. vehicle We think the instruction adequate.8 state intoxicating liquor.” contends jury instruction thirteen11 clarified
Ill
by requiring
finding
“not
Appellant’s objection
to the
operating
the defendant was
upon
instructions at
is also based
his
vehicle
motor
while under
influence
prosecutor
following
reads,
8. The
proposed
pertinent
stated the
10. The
instruction
grand jury regarding negligent
part:
homicide:
There is one additional
which the
offense
Neg-
The essential
of the crime of
elements
conceivably suggests
and that’s
ligent
charged
Homicide as
I of the
Count
11.15.080,
found within Alaska Statute
and it
Indictment,
the State must
each of which
Negligent
is entitled
Homicide and it reads as
doubt,
beyond
prove
a reasonable
are: 1.
“Every killing
being by
follows:
the
of a human
day November,
on or
That
about the 15th
culpable negligence
of another when the
Juneau,
at or near
in the First Judicial
killing is not murder in the
or second
first
District,
defendant,
State of
2. The
Alaska.
degree,
justifiable
excusable,
isor
Lupro,
unlawfully, by
F.
Robert
3. Did
manslaughter
punishable accordingly.
and is
culpable
negligence,
4. While and
law,
necessarily
Under the
case that a
it is not
in a
[sic]
influence of intoxi-
a motor vehicle under the
cating liquor,
person
charged
who can be
act or
5. Commit
leaving
convicted of
a scene of an accident or
act,
negligently failed to
6. Which act or
failure to render reasonable assistance is also
caused,
proximately
failure to act
7. The
charged
You must
homicide.
of Elmer
death
Johan Jacobsen.
killing
person
find that the
of another
was a
his,
proposed
direct
result
of the
defend-
Jury
provides:
instruction 13
ant’s, culpable negligence.
“Culpable negligence”
You
not find that
defendant was
has been defined as
culpably negligent
“culpable negligence
follows in the case
is
necessary
mere fact that he
law:
from the
something
accident,
may you
slight negligence
more than
nor
was involved
find
*7
support
culpably
negligent
a civil
for dam-
action
he was
from the mere
that
ages. Culpable negligence implies a
being
reckless
fact that another
died as a result
human
disregard
consequences,
of
a
indif-
needless
of that accident.
rights
safety
ference to the
and
even the
addition,
and
you
before
find the defendant
can
lives of others.”
homicide,
guilty
negligent
you
of
find
must
not
only
culpably negligent,
that the defendant was
reads,
part:
9.
pertinent
The instruction
in
instructions,
you
but
defined in these
must
Negli-
The essential elements of the
crime
negligence
culpable
also find that such
consti-
gent.
charged
Homicide as
I of
Count
the
proximate
the
of the death of El-
tuted
cause
Indictment,
prove
each of which the State must
mer Johan Jacobsen.
beyond
doubt,
a reasonable
are:
Driving
operating
negli-
or
a motor vehicle
day
1. That on or about the 15th
of Novem-
gently
intoxicating
while
ber,
under the influence of
Juneau,
at or near
First
the
Judi-
liquor
degree
District,
does
of conduct
Alaska,
constitute that
cial
State of
reckless, gross
defendant,
a
wanton character as
2.
The
Robert F.
rights,
unlawfully
a
3. Did
indicate
heedless indifference
kill Elmer Johan Jacob-
sen,
safety
property,
the lives of
and even
others.
By
However,
driving
culpable
operating
a motor vehicle
defendant’s
while
or
by driving
intoxicating liquor
a motor
the influ-
under the
vehicle under
while
influence of
intoxicating liquor.
support
ence of
sufficient
a
is not
itself to
convic-
a
provision.12
that
found
violation of a different
intoxicating liquor,
also
the de
but
544, 508
Gaylor,
Or.App.
fendant acted
and his conduct
v.
negligently
See State
Gipson,
(1973);
of P.2d 250
United States v.
proximate
was a
cause of
death
conclude,
(5th
This
agree.
Elmer Jacobsen.”
instruc
culpable negligence state must show a IV degree of conduct more wanton and reck ordinary negli less than that discovered, involved police After Jacobsen gence. P.2d Stork 101 began involved. searching for the vehicle (Alaska 1977); DeSacia Volks- They witnesses that a learned from (Alaska 1970). In Barbeau v. Unit dark wagen, “greenish believed to States, 945, 949, ed leaving F.2d Alaska gray” blue or had been seen (1951), culpable negligence was defined after accident. immediately area consequences, as “a reckless disregard Troop- a thereafter, Shortly an Alaska State rights Road, needless indifference to the safe er, saw searching on Basin ty and even lives of others.” be steep a headlights shining at the bottom of person lieve that a who drives while is so he Upon investigating, embankment. intoxicated that control lying he cannot his ac dark van trooper a colored discovered falls tions within this definition. “One who trooper that upside The testified down. rights is considerate of others does he went police after Juneau radioing the not drive while top he is drunk.” State v. Mon Tire tracks at down the vehicle. tieth, 247 Or. off the straight of the led embankment road, Where there is trooper sufficient evidence that the to conclude leading the in- deliberately pushed, driver was at the time van intoxicated of the had been the side. accidently accident the show driven over beyond state need stead fact reasonable doubt This the intoxication was was corroborated anyone the cause of the there victim’s death. There was was no Lupro’s proffered injured thus no error in fall. rejecting in the jury instruction. police When from the Juneau officers arrived, registration check holding Lupro’s objec- department
This also answers van number showed jury twenty-sev- plate tion to the license instruction number Lupro. en, registered Robert F. regula- which listed eight statutes it where Lupro might garage he van was tions have violated while towed to was later van impounded night. Lupro claims that as evidence. There, on No- lot. danger impound towed to instruction created officers 20, 1974, police of the verdict, it vember one possi- non-unanimous in that was of the outside jurors some but examination ble for not all of the to find conducted an *8 any the see whether provision a violation of while others vehicle to one proximate the death cause of conduct tion for the offense of homicide. was Consequently, you may find the Elmer Johan Jacobsen. before defend- homicide, guilty ant of the offense of 31(a) Procedure 12. Alaska Rule of Criminal you only must find not that the defendant was provides: It unanimous. “The verdict shall be operating or motor vehicle while un- judge in by shall be returned the intoxicating liquor, der the influence but also open court.” negligently that the defendant acted Wilson, the v. accident could be found. The United States 472 F.2d officer 1972). 901, wedged (9th We believe that discovered some fibers in one Cir. of the police for the case it was reasonable wipers. removing windshield After the the van officers who to believe wiper located examining windshield it further abandoned, it had been and that so fibers, the officer glass found additional vehicle, to be held as evi seizure of the particles and a substance dried which was dence, testimony The trial legal. apparently paint. Subsequent laboratory off gone straight had showed that the van analysis of conclusively these items showed An examination of embankment. van in fact been had the vehi- signs vehicle at showed no the scene cle that Lupro objected struck Jacobsen. to it anyone the vehicle when had been inside evidence, introduction of this claiming This, went when off the road. combined it had been in violation seized of his knowledge prior the officer’s right to be free of unconstitutional searches van involved in a may have been serious and seizures.13 crime, sufficient to allow more than frequently We have held that van had been inference that the deliberate warrantless per searches and seizures are se ly pushed side of the hill. The over the they unreasonable unless fit within a “few justified police further in con officers were specifically established and well-delineated cluding expectation that no reasonable exceptions.” See, g., State, Zehrung e. v. State, privacy v. 510 P.2d existed. Smith 189, (Alaska 1977); 569 P.2d Schraff v. 793, (Alaska 1973); 796-97 Katz v. United State, (Alaska 1975); 544 P.2d 347, 351-52, 507, 19 States, 389 88 S.Ct. U.S. McCoy State, (Alaska 491 P.2d L.Ed.2d 576 The van could be seen 1971). The justify state seeks to the seizure roadside, night. from the even at It had of the by van that it arguing apparent had It be obviously gone the road. would off ly been abandoned. Abandoned property is expect unreasonable that such an occur to subject to requirements the warrant investigated, rence and that would not be the search provisions. and seizure Abel v. eventually inspected the van be would not States, United 362 U.S. 80 S.Ct. happened. to see what had 683, 4 (1968); L.Ed.2d 668 Schraff v. holding of the van The continued (Alaska 1975); Smith justified after under its initial seizure 28.35.070,14 police AS which authorizes Smith, analyzed question we impound may any vehicle in terms of whether complaining party accident if there is involved in an had intentionally relinquished any reasona repaired, will be possibility that it expectation ble privacy prevent the articles ex anyone access the vehicle to alleged to be cept police abandoned. See also investigating United officers. Colbert, 174, 176 States v. (5th 474 F.2d cause to believe the van had been involved Const, IV; place brought repair, U.S.Const. amend. Alaska State is where the vehicle art; 1, required. § 14. If then is no notice or examination ground suspecting there is that the vehicle provides: 14. The statute person, the with a involved in a collision impounding repair. Examination or person may before No expense impounded vehicle shall at repairs make or have made owner, for which custodian shall have damage injury or to motor vehicle which lien, accessible and shall be to officers could have been caused collision with a investigation detailed to the of the case until person property notifying or first without however, If, there is no reason released. suspect Department Safety, police, of Public chief of damage to the motor vehicle that the these, policeman in the absence of the nearest person prop- was caused collision with a peace officer, immediately or other who shall erty, repair of the vehicle be authoriz-- report examine the vehicle and make a full charge investigation ed of the the officer in person custody subscribed in whose expiration of 24 time after the hours copy report vehicle then is. A shall be thereafter. Department mailed or delivered to the of Public Safety. If no official within 10 miles of the
477 Jacobsen, were searched or seized and in in the death Elmer based on introduced of immediately before eyewitness descriptions to With the “search” limited evidence. and after It place. the accident took would on the examination of the tire the wheel quite easy have to evidence taking paint scrapings and of from destroyed purpose been removed or on in the the exterior of the vehicle left inadvertently if the vehicle had been re- lot, to public parking comprehend we fail police Lupro. turned fact that infring- what expectation privacy did not have a warrant for the initial sei- simply, priva- ed. the invasion of Stated gained zure is Having properly irrelevant. exist, cy, “if it can be said to is abstract possession of the vehicle under aban- Pollution Variance and theoretical.” Air property exception doned to the warrant Corp., Western 416 U.S. Board v. Alfalfa constitutionally requirement, they could re- 861, 865, 607 94 40 L.Ed.2d S.Ct. safeguard tain and in evidence their (1974). Under circumstances California, possession. Cooper See 386 exists, these, war- probable cause where 58, 61-62, 788, 790-791, U.S. 17 S.Ct. the exterior of a rantless examination of L.Ed.2d 733-734 car under the Fourth is not unreasonable and Amendments. question Fourteenth final is whether the inspection of the van and the removal of 591-92, at U.S. at S.Ct. evidence on November was in violation omitted). (footnotes 335-36 L.Ed.2d at Lupro’s rights. We constitutional be police In we summary, believe police, proper lieve that the van having the under the rea- validly seize the van could possession, in their ly inspect its exte could it had been aban- assumption sonable rior evidence without a warrant. The statu- right as well as a They doned. fibers, objected glass items to include the to hold 28.35.070 tory duty under AS particles, paint found the windshield and justified by van as This was evidence. wiper.15 wiper The windshield of a motor being pur- from prevent need evidence exposed public vehicle is normally at destroyed. Since inadvertently posefully or notices, citations, large. Indeed traffic and possession, their lawfully in the van placed frequently other announcements are inspect the exterior. they entitled to were no there. There could thus have been rea inspection during that The evidence found expectation privacy sonable in the area at trial. properly admitted from which evidence taken. find in principles expressed Card V Lewis, well v. U.S. 94 S.Ct. error is specification of next (1974), applicable L.Ed.2d to be here. impeach- improperly allowed the trial court Cardwell, upheld Supreme Court Cerda, by witness, Conrad ment of his alibi taking paint scrapings impres and tire other usage and evidence of Cerda’s heroin it sions the defendant’s vehicle after 26(a) provides: Criminal Rule impounded.16 The “bad acts.”17 lawfully had been Court gov- shall be admissibility reasoned: “The rules, or by these Rule and erned Civil case, present nothing In the from the principles rule, in the absence personal interior the car no ef- Rule Civil . .” fects, common law tra- which the Fourth Amendment protect, 43(g)(ll)(b) provides: ditionally has been deemed accessibility were addition, to others sup- its sought of exigencies car and 15. In at justifying at U.S. press paint glass seizure. 417 chips particles taken from 2471-2472, 594-95, at 41 L.Ed.2d police fingerprint 94 S.Ct. the front of the van expert. items not discussed These were brief, alter but our would questions about prosecution asked also 17. The conclusion event. alleged attempt theft an alleged suicide impeachment public general about of the from a the course 16. The was seized automobile mobility parking heroin use. lot. The court found that the *10 (Alaska 1971). by A may impeached witness be the However the did party state not against by night whom he was called contradic- of the questioning limit its evidence, tory by evidence that his made attorney accident. The district general reputation bad, for truth is history into the extensive examination that his moral character is as drug question- general. Cerda’s use in The to. unworthy render him He may belief. ing beyond anything justified by far went impeached not by particu- evidence the of mind need determine Cerda’s state wrongful except lar . acts . . period. time during the relevant the witness has been convicted of a The state also contends that the
crime.18 evidence of heroin use was admissible be It undisputed never Cerda had on cause it tended to show bias Cerda’s convicted of a crime because of his use of State, 830, part. See Evans v. 550 P.2d heroin. State, (Alaska 1976); McKay v. 489 P.2d State, Fields v. In (Alas- 487 P.2d State, (Alaska Fields v. 1971), ka this court held that evidence of argues that “if he at 845. The state drug usage is not admissible where its possessed night heroin November on the purpose is to impeach by showing witness morning early and the hours Novem is, by that he addiction, sole virtue of his 15,1974, being ber not he had an interest in inherently noted, however, unreliable. We at the scene of the accident of nature drug usage may evidence of be admit- case, in the he had an involved instant ted under certain circumstances. questioned by po not being interest Where evidence tends addiction lice.” extensive justify This does not show that the witness was under the in- questioning span, time outside relevant fluence of narcotics either time of permitted however. We evidence to ator the time of the occurrence to where, example, show witness bias testifies, he where the evidence testifying was who police informant proves ability perceive, his remember, R.L.R. v. See prosecution. avoid his own testify are substantially by affected State, (Alaska 1971); Whit 487 P.2d habit, his or where such evidence would ton v. 479 P.2d be independently admissible under some McKay, In 489 P.2d at theory, other it should not be excluded. prosecution question was allowed to a de Id. at 844-45. fense alibi witness about indictment The state advances several selling theories undercover narcotics to same which purportedly justify agent the admission of testifying against who was the de the evidence usage. of heroin by first is The possible fendant. bias was obvious: the evidence was discrediting admissible agent because the witness was but Cerda could contrast, have been under the influence tressing his own defense. of heroin when the accident occurred. reasons advanced the state in this case by permissible “Cross-examination is speculative. to show purely are No evidence was that the witness under produced showing influence of ever that Cerda had a drug as the time of the events to drugs possession night which he in his of the is testifying.” Doe v. 58 accident. actually by though Cerda called the state. Civil briefed as he had wit- been a defense 43(g)(11)(a) provides: Rule agree ness. We court below that for purposes appeal, of this for deter- standard party producing may a witness mining if evidence of “bad acts” under impeach Civil his credit evidence of bad charac- 43(g)(ll)(b) improperly Rule admitted is may ter. He contradict him other evi- determining dence; same the standard for if and he show that he has made at evidence “bad character” was admitted un- other times statements inconsistent with his (current 43(g)(ll)(a) present der version at Rules of testimony 608(b)); (repealed Evidence Civil Rule 43 Au- Cerda was treated as “hostile” witness 1, 1979). however, gust state at trial and this issue has been theory
The state’s third
error itself had substantial
is that
influ-
“prior
introducing
good
so,
of Cerda’s
ence.
in grave
If
or if one is left
*11
acts,”
opened
door for
doubt,
defendant
the conviction cannot stand.”
prior
rebuttal by the introduction of
“bad
630-31, quoting
457 P.2d at
Kotteakos v.
acts.”
for
proposi
The
case cited
this
States,
United
S.Ct.
U.S.
Riconosciuto,
tion is
12 Wash.App.
State v.
there was
final
The state
apart
his case.
phase
from the
the was selected to hear
by
affected
rather,
jurors
cause
so,
challenged
potential
It
even
error.
is
whether
three
provides:
Rule
19. We
20. The
note that Alaska Rule of Evidence
608(b)
pertinent part
states
that:
error, defect,
Any
irregularity or variance
specific
rights
Evidence of other
does
instances of
not affect substantial
[of
purpose
parties
disregarded.
conduct of a witness offered for thé
shall]
attacking
supporting
of
ibility
cred-
witness’
only contradictory
evidence
21. The
is inadmissible
unless
rules,
who testified
explicitly
by
several of Jacobsen’s co-workers
admissible
made
these
they
they
left
promulgated by
alive when
other
preme
saw Jacobsen
rules
Alaska Su-
discrepancy
This
work
12:14 a. m.
Court or
enactment
the Alaska
showing
Legislature.
testimony
explained by
that the clock
commentary
explains
judged
time
rule
that the
their
the co-workers had
43(g)(ll), super-
night.
rule “follows Alaska R.Civ.P.
ten minutes fast that
Rule,
juris-
seded
and a trend
some
impeachment by
prohibit
dictions to
‘bad acts’
other than criminal convictions.”
under
(S.D.N.Y.)
(2d
Alaska Rule of Criminal Procedure
aff’d
one with a composition,” “definite “a basic ideas, similarity in opinion except attitudes or I experience” majority concur with the and a “community of portions dealing interests which cannot with the with the standard be adequately protected by culpably negligent the rest of the conduct and the relat- populace.” 569 P.2d at quoting jury respect United ed instructions. With to those Guzman, States v. 337 F.Supp. portions, 143-44 I respectfully dissent. I, challenged One of the three was also be- Article section 11 of the Constitution Alaska dealings cause of her language. extensive financial contains similar appellant’s father. policy 24. As we do have matter of doubts' literally 24(c)(ll). to the wisdom of Rule Read 23. The sixth amendment of the United States broad, sweep subjects for its its seems too provides: Constitution anyone litigation who adver has ever been prosecutions, In all criminal the accused shall sary challenge state to a cause. We enjoy right speedy trial, public to a request from our shall comments the rule impartial jury .... Criminal Rules Revision Committee. Hall,
I
J.
Principles
General
of Criminal Law
(2d
1960).
ed.
The majority opinion
driving
states that
intoxicated,
more,
without
is suffi-
highest
courts of other states have
cient to sustain a
conviction for
maintained this
culpa
distinction between
homicide.
culpable negligence
But
requires
bly negligent
conduct and
while un
degree
“a
of conduct more reckless and
der the
intoxicating
influence of
liquor,
wanton than would be
ordinary
involved in
holding
while intoxicated is a
State,
negligence
.
De Sacia v.
.
factor to be
considered
in as
Although
sessing a defendant’s
conduct in
driving after
drinking
excessive
may in fact
cases,
homicide
but is not itself sufficient to
supply the element of recklessness to raise
convict without other
behavior to
evidence of wanton or
culpable
the level of
negli-
gence, driving after drinking moderately
reckless conduct.
Smith
So.2d
may constitute
no
at all if the
(Fla.1953);
Cutshall v.
191 Miss.
driver
exercising
due care. This distinc-
764, 4
Sisneros,
State v.
(1941);
So.2d 289
tion between recklessness and ordinary neg-
N.M.
ed,
(including driving under
we must determine the actor’s knowl-
edge of
influence)
the facts
war
and his estimate
does not in and of itself
of his
conduct with reference to the increase of
bringing
charge
rant
of a
reckless
risk.
In the
ques-
determination of these
Lunt,
ness. State v.
106 R.I.
260 A.2d
tions the introduction of the “reasonable
Hargis,
State v.
(1969);
149
5 Conn.Cir.
man” is not a substitute for defendant’s
Licari,
(1968);
249 A.2d
State
awareness that his conduct increased the
Conn.
tioned a non-unanimous
conviction should be reversed. prejudicial
Instruction 13No. was also
Lupro because the internal contradiction
created “culpable neg- references first to
ligence,” “negligence” and thereafter
(meaning, presumably, ordinary negligence) that,
within that instruction. It states appellant
find culpably negligent,
jury
only
“driving
need find
that he was
negligence
the defendant.
It is
were committed
if the standard of
conduct
plus
is
nary
of several alternatives
while intoxicated
an act of ordi-
The selection of
enough.
U. S.
each member of the
is not
that the issue of the non-unani-
case,
(5th
Gipson,
jurors
mous