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Marrical v. State8/18/1999
he jury had been told to consider "all the facts and circumstances in evidence" in determining whether Marrical was intoxicated. In this context, the challenged instruction told the jury that the state had failed to allow any evidence of an independent chemical test to be considered and that the jury should therefore "presume" in its consideration of whether Marrical was intoxicated that the missing test evidence "would have been favorable."
Fourth, and perhaps most significant, both attorneys in this case specifically told the jury in their closing arguments that the instruction meant that they "must presume" the blood test would have been favorable to Marrical. Even if Judge Lombardi's instruction was erroneous because the jury might have believed that it was not required to presume that the missing test evidence would have been favorable to Marrical, the attorneys' arguments to the contrary cured any error.
We therefore conclude that Judge Lombardi did not err when she used the language " ou may presume" as opposed to " ou must presume" in her instruction to the jury. Given the record in this case we are convinced that the jury understood these phrases as functionally equivalent.
We AFFIRM the conviction.
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