The court of appeals in State v. Simmons, ___ N.C. App. ___ (July 20, 2010), decided this week, awarded a new trial to a defendant convicted of impaired driving, finding that the prosecutor made improper and prejudicial remarks in his closing argument. The court found a substantial likelihood that these comments led the jury to believe that it was compelled to return a guilty verdict based on the results of the chemical analysis—a 0.11 in Simmons’ case.
The prosecutor’s improper remarks were references to trial proceedings in State v. Narron, 193 N.C. App. 76 (2008), a case in which the court of appeals upheld G.S. 20-138.1 as constitutional and rejected the defendant’s argument that the provision in subdivision (a)(2) that “[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration” constitutes a mandatory presumption that violates the due process requirement that the State prove every essential element of the crime. Narron explained that rather than creating an impermissible evidentiary or factual presumption the objected-to provision simply states the standard for prima facie evidence of a defendant’s alcohol concentration. Put another way, this provision authorizes, but does not compel, a jury to find that the results of a chemical analysis accurately reflect a defendant’s alcohol concentration.
And while Narron noted there was no reason for the trial court to call to the jury’s attention that the chemical analysis was the basis for the trial court’s determination that the State had presented prima facie proof of the element, the appellate court found that the defendant was not prejudiced by the trial court’s instruction to the jury that “[t]he results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration.”
Fast-forward to Simmons. Apparently the prosecutor in Simmons also prosecuted the defendant in Narron. After advising the court and defense counsel that he planned, in his closing argument, to “cite” and “read some language from” Narron, the prosecutor proceeded to describe the facts in Narron to the jury. The gist of his argument was that in Narron, the evidence of impairment primarily consisted of chemical analysis results and that “a Pitt County jury just as yourself found that defendant guilty with a .08.”
Defense counsel objected to this argument, but the trial judge overruled the objection on the basis that “you were told this was what he was going to argue.” For obvious reasons—the prosecutor’s injection of his personal experience, his argument based on matters outside the record, and the implication that the jury should convict the defendant because the facts were similar to another case in which a defendant was convicted—the appellate court found the State’s argument improper and the trial court’s overruling of the defendant’s objection an abuse of discretion.
What is noteworthy is that the Simmons court found the error so grave as to warrant a new trial. Here’s the irony. Simmons holds that the State’s references to Narron—a case in which the court of appeals held that a jury is not compelled to find a defendant guilty based upon a chemical analysis result of .08 or more—likely caused the Simmons jury to believe it was compelled to find the defendant guilty. The trial court’s instructions to the Narron jury that “[t]he results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration” strike me as more likely to have caused the jury to believe that it was compelled to accept those results than does the State’s improper intimation in Simmons that because the Narron jury returned a verdict of guilty based solely on a chemical analysis result, it should do the same. But that’s not the way the appellate court saw it and Simmons presumably will be retried. If he is, I’m guessing there’ll be no mention of Narron in closing arguments.