State v. Pelky

559 A.2d 1345, 131 N.H. 715, 1989 N.H. LEXIS 52
CourtSupreme Court of New Hampshire
DecidedJune 28, 1989
DocketNo. 87-420
StatusPublished
Cited by12 cases

This text of 559 A.2d 1345 (State v. Pelky) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pelky, 559 A.2d 1345, 131 N.H. 715, 1989 N.H. LEXIS 52 (N.H. 1989).

Opinion

Johnson, J.

The State appeals from an order of the Superior Court (Gray, J.) granting a motion by the defendant to quash an indictment charging him with second degree assault. RSA 631:2. We reverse and remand.

On October 8, 1986, the defendant, Michael Pelky, struck a bicycle ridden by Walter Ginalski with his truck. Mr. Ginalski, who had been riding near the white fog line bordering the southbound lane of Bypass Route 28 in Auburn at the time of the collision, sustained fractures to the bones in his back. Based on this incident, a Rockingham County Grand Jury returned an indictment on November 12, 1986, charging the defendant with second degree [717]*717assault. On March 25, 1987, the defendant moved to quash the indictment on the ground that it failed to meet the State constitutional requirement of specificity. Over the State’s objection and after a hearing, the superior court granted the motion.

On May 5, 1987, the grand jury returned a second indictment, again charging the defendant with second degree assault. The indictment, which is the subject of this appeal, stated:

“[On October 8, 1986, the defendant] ... at Auburn . . . did commit the crime of second degree assault in that under good weather conditions, with a bicyclist being clearly visible, and without any traffic conditions that would require him to drive near the white fog line on ByPass 28, a two lane highway that is approximately 27 feet six inches wide near the point of impact with another four feet of pavement beyond the white fog line, he drove a truck in a southerly direction on ByPass 28 near the white fog line and struck a bicycle being ridden near the white fog line in a southerly direction on ByPass 28 by Walter Ginalski, and thereby recklessly caused serious bodily injury to the said Walter Ginalski who sustained fractures to the bones in his back as a result of this collision
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The defendant moved to quash the indictment on the ground that it too failed to meet the State constitutional requirement of specificity. He did not raise any federal constitutional claims, tie claimed that the indictment was deficient in failing to allege a “definite or overt act of recklessness,” stating that “this indictment merely describes the circumstances of an accident and then asserts the conclusion that injuries resulting from that accident were ‘recklessly caused’.” According to the defendant, he found it impossible from the indictment to discern “what risk, if any, [he] was aware of and then consciously disregarded. Thus, it is also impossible for [him] to ‘know what he must meet.’” Following a hearing held on October 2, 1987, the trial court ordered the indictment quashed. The State appealed pursuant to RSA 606:10, 11(c).

Part I, article 15 of the New Hampshire Constitution provides that “[n]o subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him . . . .” This constitutional guarantee is effectuated in cases involving offenses which may be punishable by death or imprisonment for more than one year, see RSA 601:1, partly by means of the indictment, which must “set[ ] forth the offense fully, [718]*718plainly, substantially and formally” in order to be deemed sufficient. RSA 601:4. The defendant argued below, and the trial court apparently agreed, that the indictment failed to meet this standard by neglecting to specify the overt act by which the defendant had acted recklessly. On appeal, the State argues first that an allegation of recklessness in an indictment charging a specific-result crime need not specify the conduct creating the risk in question. The State next argues that if specification of an overt act is required, the indictment in this case sufficiently describes such an act.

We agree with the State that the indictment in the instant case can be read to specify an overt act of recklessness. Under the Criminal Code, a person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that a material element of a crime, in this case, serious bodily injury, will result from his conduct. See RSA 626:2, 11(c). “The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation.” Id. The indictment stated that the truck, driven by the defendant, and a bicycle, ridden by the victim, were moving south near the white fog line of Bypass Route 28 on a clear day and under good road conditions. We can infer that the reckless conduct charged by the indictment consisted of the defendant’s awareness and disregard of the risk that his truck, which was travelling near the white fog line and which was presumably moving at a greater speed than the bicycle, would overtake and strike the-bicycle, which was also travelling near the white fog line. However, our determination that the indictment can be read to specify an overt act of recklessness, standing alone, neither requires nor permits a finding that the indictment meets the constitutional requirement of specificity.

We have before held that, in order for an indictment to be deemed constitutionally sufficient, it must “inform the defendant of the offense for which he is charged with sufficient specificity so that he knows what he must be prepared to meet and so that he is protected from being put in jeopardy once again for the same offense.” State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 459 (1974) (citations omitted); see State v. Stearns, 130 N.H. 475, 488, 547 A.2d 672, 679 (1988) (citations omitted); State v. Therrien, 129 N.H. 765, 770, 533 A.2d 346, 348 (1987). An indictment will enable a defendant to prepare for trial and protect him against double [719]*719jeopardy if it “alleges all the elements of an offense that is identified by pleaded facts. . . .” State v. Therrien, supra at 770, 533 A.2d at 349. However, once a specific offense has been identified, “there is no further and independent requirement to identify the acts by which a defendant may have committed that offense.” Id. The sufficiency of an indictment is determined not by inquiring whether the indictment could be more certain and comprehensive, but by determining whether it contains the “elements of the offense and enough facts to warn the accused of the specific charges against him.” State v. Manchester News Co., 118 N.H. 255, 257, 387 A.2d 324, 327 (1978); see State v. Stearns, supra at 488, 547 A.2d at 679.

The second indictment returned by the grand jury, which is the indictment at issue in this appeal, charged the defendant with second degree assault. The crime of second degree assault is committed when a person “[kjnowingly or recklessly causes serious bodily injury to another.” RSA 631:2. The indictment charged that the defendant had “recklessly caused serious bodily injury” to a specific person, on a specific date, on a specific section of a specific road under specific weather conditions by driving a Ford truck “near the white fog line and [striking] a bicycle being ridden near the white fog line ... by Walter Ginalski . . .

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Bluebook (online)
559 A.2d 1345, 131 N.H. 715, 1989 N.H. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pelky-nh-1989.