 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Schneider9/21/2005
breath-testing equipment. Defendant did not object to the exhibits. At the end of the trial, defendant requested the following jury instruction:
"When you evaluate the evidence, you may consider the power of the state to gather and produce evidence. If the evidence offered by the state was weaker and less satisfactory than other stronger or more satisfactory evidence which the state could have offered, then you should view the weaker and less satisfactory evidence with distrust."
In making that request, defendant argued that, in using the exhibits, the state "relied upon paper evidence as opposed to person evidence." Defendant argued:
"And certainly, a person, a live person is more satisfactory evidence than a mere piece of paper as to what a person says with respect to testing and accuracy of a breath test machine. And I think we would all agree that a live person is subject to confrontation, cross-examination, demeanor evidence, and that's better evidence than paper evidence."
The trial court did not give the requested instruction.
2. Analysis
On appeal, defendant argues that the requested instruction was necessary, because the paper evidence was weaker evidence than live testimony. The state argues that the record in this case does not support the delivery of the requested instruction. "We review a trial court's refusal to give a requested jury instruction for error as a matter of law." State v. Moore, 324 Or 396, 427, 927 P2d 1073 (1996).
In State v. McDonnell, 313 Or 478, 837 P2d 941 (1992), the court was asked to determine when the "weaker and less satisfactory evidence" jury instruction should be given. It held:
"In sum, in a criminal case, the statutory 'less satisfactory evidence' instruction, ORS 10.095(7) and (8), should rarely be given. It may, however, be appropriate 'where because of an asserted affirmative defense the defendant has the burden of proof on an issue in the case.' [State v. Mains, 295 Or 640, 657-58, 669 P2d 1112 (1983).] Moreover, it may be appropriate in a criminal case where the state's failure to produce evidence could give rise to an inference that the evidence would be adverse to the state--that is, when it appears that the state may be trying to hide something, or in a case where the record indicates that the state possessed and failed to produce stronger evidence. In such a case, however, the instruction may be given only if there is evidence in the record to support it. Generally, the instruction need not be given where the other evidence would be merely cumulative."
McDonnell, 313 Or at 503 (citations omitted; emphasis in original).
Defendant does not argue that any of those factors applied, and we find nothing in the record to suggest that they did. Defendant did not have the burden of proof with regard to whether the Intoxilyzer machine was operational. There is nothing in the record to suggest that the state failed to offer the live testimony of the two technicians because it was trying to hide something. There is nothing in the record to suggest that the state was able to offer the live testimony of the two technicians or that the live testimony would be stronger than the paper evidence. We conclude that the trial court did not err in refusing to give the requested jury instruction.
Affirmed.
Page 1 2 3 4 5 6 7 8 9 10 11 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|