 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Marrical v. State8/18/1999
n tell you, ladies and gentlemen, is that we have all of these indicators to show you that the defendant was in fact under the influence of alcohol." The defense attorney also read this instruction aloud and then told the jury: "Now, what does that tell you? If there had been a test, it would have been favorable to Pamela. Ladies and gentlemen, that is a presumption that goes even beyond this presumption, because you've got a presumption right now that she is presumed innocent, and you have another presumption being given to you that says if she'd been given the test, it would have been favorable; and when you add that one with this one, it puts you way over on that side of the equation."
On appeal, Marrical contends, as she argued below, that in order to comply with Snyder the jury instruction should have instructed the jury that it "must" presume the result of the denied chemical test would have been favorable to her, not that it "may" presume this; the state argues that Snyder requires only that the jury be instructed that it is permitted to infer this. However, we need not resolve these arguments in this case because we conclude that Marrical's jury was effectively instructed that it must presume the result of the denied chemical test would have been favorable to Marrical.
In Sivertsen v. State, the Alaska Supreme Court recently found error when a prosecutor told a jury, in closing argument, " ou can assume" a fact to be true. The court ruled that, in context, the phrase "you can assume" was "functionally equivalent" and "perilously close" to the phrase "the law presumes." The court stated: " he phrase 'you can assume,' when addressed to a jury about to deliberate and reach a verdict, sounds more authoritative than hypothetical." The circumstances of this case are even more compelling than in Sivertsen. First, in this case, Judge Lombardi told the jury, " ou may presume" a fact to be true; as the supreme court discussed, the word "presume" is even stronger than the word "assume"; the phrase "you may presume," even more than "you can assume," sounds more authoritative than hypothetical when addressed to a jury about to deliberate. Second, in this case, the phrase appeared in an instruction of law given to the jury orally and in writing by a Judge, and not simply in a prosecutor's closing argument; the phrase "you may presume" sounds even more authoritative in an instruction by a Judge than in an argument by an attorney.
Third, it seems clear from the context of this and other instructions in this case that the jury was actually instructed, rather than merely permitted, to presume that the result of the chemical test Marrical was denied would have been in her favor. In the challenged instruction itself, Judge Lombardi informed the jury, "No independent test was offered to the defendant in this case." In context, the following sentence in the instruction would be taken by the jury as a consequence or resulting legal fact based on the police's failure to offer an independent test: "You may [therefore] presume that had an independent test been given the results would have been favorable to the defendant." This sense of the instruction is confirmed by another instruction that told the jury that a defendant had the "right to rely" on the failure of the prosecution to establish evidence and proof; consistent with that instruction, the jury would understand the challenged instruction to mean that, because the state had failed to produce or allow Marrical to produce any test evidence of her level of intoxication, Marrical had the "right to rely" on this failure so that the jury would "presume" that such test evidence "would have been favorable" to Marrical. In yet another instruction, t
Page 1 2 3 4 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|