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Marrical v. State8/18/1999
other evidence must have some tendency in reason to establish a proposition material to the case.'" Our review of the ten pages Marrical asked to admit into evidence at trial does not reveal that the pages were particularly, if at all, relevant to this case. The pages reveal that in 1986 a "Pamela Travers" was seen by hospital doctors for a variety of reasons, including an injured toe and threats of violence and suicide. Assuming that this is the same person as Marrical, the bulk of the pages discuss Travers' toe, drug medications, and marital problems, and so appear to be undisputably irrelevant to this DWI case. Among the pages are some words such as "hyperactive," "manic," "bipolar disorder," "rule out manic depressive disease," and "acute psychosis," but there is little or no explanation of these terms, no indication that Travers would still suffer from these symptoms or conditions twelve years later, and no showing that these symptoms or conditions would explain or resemble signs of intoxication or be relevant to any defense of DWI. We conclude that Judge Lombardi did not abuse her discretion by declining to admit the pages into evidence.
Marrical next contends that Judge Lombardi erred by precluding her from testifying about her medical condition. However, our review of the record reflects that Judge Lombardi did no such thing -- rather, as described above, the Judge ruled that Marrical could not admit the ten pages from her old hospital records into evidence without some showing, through expert testimony, that the pages were relevant. Judge Lombardi never prevented Marrical from describing her own sensations or physical or mental condition at the time of the stop. Marrical's decision not to testify at trial was not the result of any preclusion of her testimony; instead, as Marrical's brief seems to implicitly concede, it was a tactical decision in response to the ruling that the ten pages were inadmissible. This contention is therefore frivolous.
Finally, Marrical contends that Judge Lombardi erred in the wording of a jury instruction that the Judge gave the jury as a remedy for the violation of her right to an independent chemical test.
Before the trial, Marrical filed a motion arguing that because Conn, after the arrest at the police station, did not read her a notice of her right to an independent chemical test after having refused the police-administered breath test, she was entitled to a jury instruction to presume that the result of the denied chemical test would have been favorable to her. Marrical relied on Snyder v. State, in which the Alaska Supreme Court held that arrested drivers have a right to an independent chemical test even if they refuse the breath test and held that the remedy for violation of this right was such a jury instruction. Judge Lombardi granted Marrical's motion in pertinent part and ruled that Marrical would receive such a jury instruction. At trial, after attorney arguments about the wording of the instruction, Judge Lombardi instructed the jury as follows: "No independent test was offered to the defendant in this case. You may presume that had an independent test been given the results would have been favorable to the defendant."
Notwithstanding their earlier disagreements outside the presence of the jury on the wording of this instruction, both attorneys agreed in their closing arguments that the jury "must" presume the missing test would have been favorable to Marrical. After reading aloud this disputed instruction, the prosecutor explained to the jury: "What that means, ladies and gentlemen, is that we can't tell you exactly how intoxicated the defendant was, and you must presume that it was favorable to her; but what we ca
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