Lead Opinion
OPINION
{1} Defendant was convicted of second-degree murder and tampering with evidence for his involvement in the death of Marco LaPlant following a fight at an outdoor party near Farmington, New Mexico. On appeal, Defendant argues that his conviction must be reversed because errors in the jury instructions prevented the jury from appreciating that the State had the burden of disproving self-defense. The Court of Appeals determined that a third, correct jury instruction cured the error in two instructions that had failed to explain the State’s burden. We reverse the Court of Appeals and hold that, because of its distance from the erroneous elements instruction and the unlikelihood that the jury would, sua sponte, graft language from a proper instruction onto improper instructions, the single proper instruction did not correct the improper self-defense instruction. The erroneous instruction therefore constituted fundamental error. We reverse Defendant’s second-degree murder conviction and remand for a new trial.
I.
{2} At a late night outdoor party at “the levels,” near Farmington, New Mexico, a fight broke out between Defendant and Orlando Delagrito. A friend of Defendant, Christopher Johnson, intervened and chased Mr. Delagrito to a green Chevrolet Nova. When Mr. Delagrito entered the Nova, Christopher Johnson and a third friend threw rocks at the car and challenged Mr. Delagrito to fight. The Nova drove off, but not before a rock shattered a rear window of the vehicle.
{3} The Nova belonged to the victim, Marco LaPlant, a friend of Mr. Delagrito. Mr. LaPlant had witnessed the vandalism of his vehicle and followed the Nova on foot as Mr. Delagrito drove it to safety. After approximately fifteen minutes, an angered Mr. La-Plant drove his Nova back to the levels, where Mr. Johnson had rejoined Defendant and some fourteen other people. The Nova kicked up a cloud of dust as Mr. LaPlant slammed on the brakes next to a truck where the group was gathered. Mr. LaPlant emerged from the vehicle brandishing a car jack that most witnesses believed was a gun. Someone yelled “gun” while everyone scrambled to hide. As Mr. LaPlant approached, Defendant, who had been hiding behind the truck, struck Mr. LaPlant on either the head or shoulder with an empty bottle of whiskey. Defendant and Mr. LaPlant then continued fighting.
{4} The parties dispute the events that followed. According to Mr. Johnson, a witness for the prosecution, when Mr. LaPlant gained position on top of Defendant, Mr. Johnson picked up a large, heavy rock and used it to strike Mr. LaPlant on the back. Mr. Johnson testified that he then helped Defendant to his feet and temporarily left the scene of the fight to go vandalize Mr. LaPlant’s Nova. As he left, numerous people, including Defendant, were kicking and punching Mr. LaPlant. When he returned, Mr. Johnson found Mr. LaPlant covered in blood and breathing irregularly. Mr. Johnson testified that he and Defendant then got in a car, but before they could leave, Defendant exited the car and approached Mr. La-Plant. According to Mr. Johnson, Defendant kicked Mr. LaPlant in the side and then dropped a large rock onto the victim. Mr. Johnson did not see where the rock landed.
{5} The State also produced evidence regarding statements allegedly uttered by Defendant during the fray. Eyewitness Danielle Enos and her sister Dacia both testified that they heard Defendant tell Mr. LaPlant “croak, motherfucker, croak.” Titus Jacquez testified that Defendant declared that he would have to kill Mr. LaPlant so he would not have to “worry,” and then said “later” as he kicked Mr. LaPlant in the face. Mr. Johnson did not remember or could not hear what, if anything, Defendant said to Mr. LaPlant.
{6} Although many witnesses saw Mr. Johnson strike Mr. LaPlant with a rock, only Mr. Johnson, a co-defendant in the ease, offered testimony that Defendant struck the victim with a rock. Defendant attacked Mr. Johnson’s testimony by raising inconsistencies between his testimony and pre-trial statements. Defendant also attempted to discredit Mr. Johnson’s testimony by suggesting that Mr. Johnson, who had pleaded guilty to first degree murder, received a lighter sentence (ten years maximum) and a postponement of that sentence in exchange for his testimony.
{7} According to Defendant, after Mr. La-Plant’s Nova came speeding toward the group with whom he had gathered, he heard people yell “gun.” Defendant admitted that he hit Mr. LaPlant with a whiskey bottle but claimed that he made contact with his shoulder rather than his head. He said that while Mr. LaPlant had him pinned to the ground he heard someone say “get back,” then heard three cracks above him before someone removed Mr. LaPlant from on top of him. Defendant got up and started kicking Mr. LaPlant but could not recall if some of the blows landed on Mr. LaPlant’s head. According to Defendant, he entered a friend’s car, but exited the vehicle in order to smash the Nova’s headlights and windshield. He then returned to the car and left the levels. Defendant testified that he never revisited Mr. LaPlant’s body after the initial fight, that he never hit Mr. LaPlant with a rock, and that he neither voiced nor entertained a desire to kill Mr. LaPlant.
{8} According to Dr. Patricia McFeeley, the State’s pathologist/medical examiner, the victim died' as a result of brain swelling caused by a combination of blows to the head. Dr. McFeeley testified that the fatal head injuries could have been dealt by a bottle, a rock, or a kick to the head regardless of the kind of footwear worn by the person kicking. Dr. Karen Griest, a forensic pathologist hired by Defendant, identified the cause of death as trauma from a “rigid, heavy object.” Dr. Griest testified that it was unlikely that a kick leveled by someone wearing tennis shoes of the sort worn by Defendant on the night in question could have caused Mr. LaPlant’s death. Dr. Griest also observed that there were no glass fragments in the victim’s scalp or clothes.
{9} The jury acquitted Defendant of first-degree murder and convicted him of second-degree murder and tampering with evidence. Defendant received a sentence of fifteen years for the murder and eighteen months for tampering with evidence. On appeal, among other issues, Defendant asserted that the trial court committed fundamental error by giving jury instructions that did not adequately treat his self-defense claim. State v. Benally, No 19,897, at p. 1 (NMCA Feb. 21, 2000). A divided Court of Appeals held that the errors in the jury instructions did not amount to fundamental error and affirmed
Defendant’s conviction. Id. at pp. 3-10. In a dissenting opinion, Judge Bustamante argued that the erroneous jury instructions did amount to fundamental error. Id. at pp. 8-9. We granted certiorari to review the instructions.
II.
{10} The trial court determined that self-defense was at issue in this case and gave the jury a series of self-defense instructions. Defendant alleges that three errors resulting from those instructions require the reversal of his conviction. First, instruction 12, the elements instruction for second-degree murder, failed to include the element of unlawfulness.
{11} In addition to the omission of unlawfulness from instruction 12, Defendant complains that instruction 15, which followed the instructions for homicide offenses, described self-defense in non-deadly force cases rather than in homicide cases.
{12} The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error. See Parish at 42,
{13} In Parish, a defendant standing trial for voluntary manslaughter presented evidence that raised a reasonable possibility that he acted in self-defense. Parish,
{14} In State v. Armijo,
{15} In Cunningham, we elaborated on the capacity of other instructions to cure an elements instruction that improperly omits unlawfulness. Cunningham involved a first-degree murder conviction based on an elements instruction that, like the instructions at issue in Parish and Armijo, failed to include unlawfulness. Cunningham,
{16} In New Mexico, then, unpreserved error in jury instructions is “fundamental” when it remains uncorrected, thereby allowing juror confusion to persist. Because both parties in the present ease agree that instruction 12 was erroneous, and that Defendant failed to object to that error, we now employ Cunningham and review the case for fundamental error. Examining the whole record, we seek to determine whether the erroneous omission of the burden of proof from instruction 12 was corrected so as to eliminate juror confusion.
III.
{17} The incomplete elements instruction in the present case was followed by two self-defense instructions: instruction 15, which also omitted the State’s burden, and instruction 25, which included the correct burden.
{18} We begin our evaluation of the corrective capacity of instruction 25 with the common sense proposition that the jury understands the inclusion and omission of language in a jury instruction to reflect the intent of its author. Just as a jury expects an element included in an instruction to reflect the intent to include that element within the relevant law, the jury would naturally assume that the omission of an element reflects the intent to exclude that element from the law governing the issue. When posed with instruction 25 that included the State’s burden of proof, and instructions 12 and 15, which omitted the burden, we believe that a juror would be inclined to believe that the author of instructions 12 and 15 intended the omission, and that the State’s burden of proof was therefore not part of those instructions. Thus, in order to correct the error in instruction 12, instruction 25 must have convinced the jury that its correct statement of the burden of proof applied not only to the offenses it addressed, but also to the offense of second-degree murder, which instruction 12 addressed.
{19} Nothing on the face of the instructions, nor in their placement, suggested to the jury that the burden of proof from instruction 25 applied to second-degree murder. Instruction 25 addressed aggravated battery and voluntary manslaughter rather than second-degree murder, and a span of thirteen instructions separated it from instruction 12. The comparative nearness of erroneous instruction 15 to instruction 12 suggests that the jury would apply it, before the more remote instruction 25, to second-degree murder.
{20} The inapplicability of instruction 25 to second-degree murder would probably have been reinforced in the minds of the jury by other instructions. Instruction 9, which admonished the jury that “[e]ach crime charged should be considered separately,” would have buttressed their logical inclination to consider the instructions accompanying the manslaughter and battery offenses separately from the instructions accompanying second-degree murder. UJI 14-6004 NMRA 2001. Instruction 1, which ordered the jury not to “pick out one instruction or parts of an instruction and disregard others,” would have prevented the jury from interposing language from instruction 25 onto instructions 12 and 15. UJI 14-6001 NMRA 2001. We believe it is likely that at least some jurors would have perceived the two inconsistent instructions in a manner consistent with that theorized by Judge Bustamante in his dissent:
I believe I would be very confused by the two self defense instructions, and that, in an effort to make sense of them, I would apply the erroneous self defense instruction to the first degree and second degree murder charges which it follows, and would apply the correct jury instruction to the voluntary manslaughter and aggravated battery instruction which it follows.
Benally, 19,897 at p. 10. Because we do not believe that a reasonable juror, following the given instructions, would graft the correct burden of proof from instruction 25 to the offense of second-degree murder, we hold that instruction 25 could not have corrected the omitted element from instruction 12.
IV.
{21} The State also argues that the prosecutor’s remarks during her closing statement, in which she read instruction 25 and reminded the jury of the State’s burden of proof, supports the conclusion that a reasonable juror would not have been confused or misled as to the appropriate burden of proof. We do not agree that attorney commentary is capable of correcting an erroneous jury instruction. We presume that the jury followed the instructions given by the trial court, not the arguments presented by counsel. State v. Baca,
V.
{22} The juror confusion and misdirection resulting from instruction 12 remained uncorrected and resulted in fundamental error under the Cunningham standard. Cunningham,
{23} IT IS SO ORDERED.
Notes
.Instruction 12 read as follows:
For you to find the defendant guilty of second degree murder, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant killed Marco LaPlant[ ];
2. The defendant knew that his acts created a strong probability of death or great bodily harm to Marco LaPlant;
3. The defendant did not act as a result of sufficient provocation;
4. This happened in New Mexico on or about the 7th day of July, 1997.
Instructions 10 and 18, listing the elements for first degree murder and voluntary manslaughter, respectively, also erroneously omitted the element of unlawfulness. However, because Defendant was not convicted of either first degree murder or voluntary manslaughter, we do not address these errors.
.Instruction 15 informed the jury that:
Evidence has been presented that the Defendant acted while defending himself.
The Defendant acted in self-defense if:
1. There was an appearance of immediate danger of death or great bodily harm to the Defendant as a result of being attacked with a deadly weapon by Marco LaPlant[ ]; and
2. The Defendant was in fact put in fear, by the apparent danger of immediate death or great bodily harm and struck Marco LaPlant[ ] because of that fear; and
3. The apparent danger would have caused a reasonable person in the same circumstances to act as the Defendant did.
In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to the Defendant’s guilt, you must find him not guilty.
. Instruction 25 provided:
Evidence has been presented that the defendant acted in self-defense. The defendant acted in self-defense if:
1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of being attacked by Marco LaPIant[ ] with a deadly weapon;
2. The defendant was in fact put in fear of immediate death or great bodily harm and struck Marco LaPlant[ ];
3.The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did.
The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self-defense. If you have a reasonable doubt as to whether the defendant acted in self-defense, you must find the defendant noft] guilty.
(Emphasis added).
Dissenting Opinion
dissenting.
{24} I respectfully dissent. I find no fundamental error in this case and would affirm the Defendant’s convictions for second degree murder and tampering with evidence. My disagreement with the Court’s holding is predicated on the majority’s finding of fundamental error based entirely upon a focused analysis of the jury instructions. The doctrine of fundamental error “is bottomed upon the innocence of the accused or a corruption of actual justice.” State v. Sanchez,
I.
{25} There exist two distinct but interrelated aspects to a true fundamental error analysis. The first aspect, which could be characterized as the procedural prong of fundamental error, provides an exception to the preservation requirement. See Rule 12-216(B)(2) NMRA 2001 (“This [preservation] rule shall not preclude the appellate court from considering ... questions involving: ... fundamental error or fundamental rights of a party.”). The second, or substantive aspect of fundamental error, provides the standard of review under which the issues claimed by the defendant are analyzed on appeal. In essence, it is the lens through which the Court reviews unpreserved error. See, e.g., Cunningham,
A.
{26} The threshold question in any case on appeal is whether the claimed errors were properly preserved below. Rule 12-216, which defines the scope of appellate review, states: “To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked.” With respect to jury instructions, a ruling or decision by the district court may be fairly invoked by either a formal objection to the instruction that is to be given to the jury by the court, or by tendering a correct instruction. See, e.g., State v. Compton,
{27} Although New Mexico courts generally adhere to the preservation requirement, Rule 12-216(B) provides exceptions that allow appellate review despite a party’s failure to preserve error. Rule 12-216(B)(2) provides: “This rule shall not preclude the appellate court from considering ... questions involving: ... fundamental error or fundamental rights of a party.” This doctrine of fundamental error is founded on every court’s “inherent power to see that a man’s fundamental rights are protected in every case.” State v. Garcia,
Where a man’s fundamental rights have been violated, while he may be precluded by the terms of a statute or the rules of appellate procedure from insisting in this court upon relief from the same, this court has the power, in its discretion, to relieve him and to see that injustice is not done. The restrictions of the statute apply to the parties, not to this court.
Id. at 421,
B.
{28} The fundamental flaw in the majority’s analysis in this case is that it depicts fundamental error as merely an exception to the preservation requirement and utterly ignores the doctrine’s substantive force. The majority, concluding that the Defendant did not properly preserve the claimed errors below, holds that “the omission of unlawfulness from instruction 12 constituted fundamental error.” Majority Opinion at ¶ 11. Moreover, the majority finds that “because of its distance from the erroneous elements instruction and the unlikelihood that the jury would, sua sponte, graft language from a proper instruction onto improper instructions, the single proper instruction did not correct the improper self-defense instruction.” Majority Opinion at ¶ 1. Hence, the majority reverses the Defendant’s conviction for second degree murder by extricating the jury instructions from the context of the individual facts and circumstances of the case and reviews the instructions for facial errors. Such a technical and formalistic approach does not constitute review for fundamental error. See Cunningham,
{29} Fundamental error and reversible error are two distinct standards of review that have significantly different focuses and arise in different procedural circumstances. First, the procedural distinction between these two standards is apparent since review for reversible error arises when a Defendant preserves error below. This procedural distinction is significant because it shapes the Court’s review on appeal and defines the scope of the Court’s substantive analysis. For instance, where the defendant properly preserves an issue in the trial court, the appellate court is aware of where to focus its review on appeal. In contrast, where there is no specific preservation of error — in fact, where the defendant has waived all error— the court’s focus on appeal is less articulate. As a result, the scope of the substantive review, when error is not preserved, is somewhat broader. I will illustrate these concepts below.
1.
{30} First, an example of review for reversible error is provided in State v. Parish,
{31} Therefore, under a reversible error standard, it is clear that the appellate court’s substantive analysis is focused on the error preserved in the trial court — namely, the claimed error in the jury instructions. In determining whether the error claimed rises to the level of reversible error, the appellate court “will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice.” State v. Traxler,
2.
{32} The analysis under a fundamental error standard, however, is decidedly different than the analysis under a reversible error standard. See Cunningham,
The main analytical distinction between a fundamental error analysis and a reversible error analysis is the level of scrutiny afforded to claims of error. Parties alleging fundamental error must demonstrate the existence of circumstances that “shock the conscience” or implicate a fundamental unfairness within the system that would undermine judicial integrity if left unchecked. Parties who have properly preserved an alleged error for appeal are afforded a much less onerous level of scrutiny under a reversible error standard as provided in Parish.
Id. (citations omitted). To claim that the analysis under fundamental error and reversible error is the same except that the Court invokes a fundamental error review when the error is not preserved “would eliminate the preservation of error requirement of our appellate jurisprudence” and “compromise the intent embodied in Rule 12-216.” Id. at ¶ 18. Therefore, review under fundamental error is substantively different.
{33} In a fundamental error analysis, where the defendant has waived all error by failing to object, the Court’s goal is to search for injustice. See State v. Orosco,
II.
{34} In the following section I analyze the present case pursuant to what I understand to be a true fundamental error analysis.
A.
{35} The primary question with respect to any case on appeal is whether the issues and errors presented were properly preserved. Upon review of the record, I find that the Defendant failed to properly preserve any of the claimed errors on which he seeks appellate review. First, at no time during trial did the Defendant object to the omission of unlawfulness from any of the essential elements instructions or alert the court’s attention to the ambiguous statement regarding the State’s burden of proof in Instruction 15. In fact, not only did the Defendant fail to object to these now claimed errors, but he also tendered essential elements instructions which omitted the element of unlawfulness as well as proposed several self-defense instructions which included the ambiguous burden of proof statement of which the Defendant now complains. “Ordinarily a defendant may not base a claim of error on instructions he or she requested or to which he or she made no objection.” State v. Varela,
{36} Further, I also do not find that the Defendant’s claimed error regarding the trial court’s omission of UJI 14-5171 NMRA 2001 from the final jury instructions was properly preserved. Of course, I acknowledge that the Defendant tendered an instruction based on UJI 14-5171, which read:
Evidence has been presented that the Defendant killed Marco LaPlante while defending himself.
The killing is in self-defense if:
1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of the victim coming his direction with a deadly weapon;
2. The Defendant was in fact put in fear by the apparent danger of immediate death or great bodily harm and killed Marco LaPlante because of that fear; and
3. A reasonable person in the same circumstances as the Defendant would have acted as the Defendant did.
In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to Defendant’s guilt, you must find him not guilty.
(Emphasis added.). The district court agreed to instruct the jury on justifiable homicide pursuant to the Defendant’s tendered instruction and to place the instruction after the first and second degree murder instructions. For this reason, the Defendant argues that this Court should review this error pursuant to a reversible error standard of review. See, e.g., Cunningham,
{37} The court’s mistake was apparent when the judge verbally instructed the jury at the close of the evidence. The judge read to the jury Instruction 15 as it appeared in the final jury instruction packet.
Evidence has been presented that the Defendant acted while defending himself.
The Defendant acted in self-defense if:
1. There was an appearance of immediate danger of death or great bodily harm to the Defendant as a result of being attacked with a deadly weapon by Marco LaPlante; and
2. The Defendant was in fact put in fear, by the apparent danger of immediate death or great bodily harm and struck Marco LaPlante because of that fear; and
3. The apparent danger would have caused a reasonable person in the same circumstances to act as the Defendant did.
In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to the Defendant’s guilt, you must find him not guilty.
(Emphasis added.). Despite the court’s obvious oversight, the Defendant failed to alert the judge of this mistake:
[W]here the court has instructed erroneously on the subject, although a correct instruction has been tendered on the point, if it leaves it doubtftd whether the trial judge’s mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection.
State v. Henderson,
B.
{38} As discussed above, even if the Defendant fails to preserve, the Court may exercise its discretion to review for fundamental error. The initial question this Court must ask itself in a fundamental error analysis is whether the Defendant was wrongly convicted or suffered such injustice that this Court should not allow the conviction to stand. To determine whether the Defendant’s conviction shocks the judicial conscience, the focus must preliminarily be directed at the conviction and the elements of the crime upon which the jury found the defendant guilty. “If there is substantial evidence ... to support the verdict of the jury, we will not resort to fundamental error.” State v. Rodriguez,
1.
{39} Here, the Defendant was convicted of second degree murder. Second degree murder is defined in NMSA 1978, § 30-2-l(B) (1994):
Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.
Accordingly, in the present case, the jury was given Instruction 12 that advised:
For you to find the defendant guilty of second degree murder, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime.
The defendant killed Marco La Plante;
The defendant knew that his acts created a strong probability of death or great bodily harm to Marco La Plant;
The defendant did not act as a result of sufficient provocation;
This happened in New Mexico on or about 7th day of July, 1997.
See UJI 14-210 NMRA 2001. The Defendant’s primary contention is that this instruction was erroneous because, as indicated in Section 30-2-l(B), unlawfulness is an essential element of second degree murder, yet it was omitted from Instruction 12.
{40} Of course, as defined in Section 30-2-1(B), unlawfulness is an element of second degree murder. However, “it is presumed that any killing of another is unlawful unless that killing is justified or excused.” Cunningham,
{41} “It is well-settled that ‘[s]elf-defense [or defense of another] is a justification to all homicides and results in acquittal rather than mitigation.’ ” State v. Gallegos,
{42} In the present case, the Defendant failed to introduce sufficient evidence to allow reasonable minds to differ as to all the elements of self-defense. During trial the Defendant testified that he was placed in fear when the victim approached him with what appeared to be a gun. As a result of this fear, the Defendant struck the victim in the head or shoulder with a whiskey bottle, at which point the victim dropped the weapon and he and the Defendant fell to the ground and began fighting. While on the ground, the victim was on top of the Defendant and six to seven other individuals began kicking the victim in the head and back. Defendant stated that when he got up from the ground he stood above the victim, and along with five to seven other individuals, continued to kick him. On direct examination, the Defendant testified:
Q: Then what happened?
A: Then they pull him off me a few feet and that’s when I get up.
Q: What were you feeling at that point? How were you feeling?
A: I was mad.
Q: Why were you mad?
A: I was just mad ...
Q: So, Lathan, at that point were you able to get up?
A: Excuse me?
Q: Were you able to get up?
A: Um, yeah.
Q: Do you recall anyone helping you?
A: No, I don’t.
Q: Ok. Now did you see what had happened to Marco LaPlante before you got up?
A: No.
Q: So, so what did you do then Lathan?
A: I kicked him.
Q: Ok, describe that ... describe how you got up ...
A: I got up using my hands and getting up and running, kicking him.
Q: Do you know where you kicked him?
A: No, I can’t really say where I kicked him.
Q: Why?
A: I know I kicked him.
Q: Why can’t you say where you kicked him, you can’t remember or what ...
A: I know I kicked him, but I can’t, I don’t know the actual, the actual points where I was planning to kick. I just was kicking him.
Q: Ok, was it because you were just real mad.
A: Yes.
Q: Ok, did you, could you have kicked him in the head?
A: I could have.
According to the Defendant, therefore, after the victim was no longer a threat, after the victim was on the ground being kicked by five to seven other individuals, the Defendant stood up and, as stated in the Defendant’s Brief in Chief, “angrily started kicking La-Plant.” (Emphasis added.).
{43} Even under the defense’s theory of the case, the Defendant was not entitled to a self-defense instruction. The Defendant failed to present any evidence to show that the killing of the victim resulted from the Defendant’s initial fear or that the Defendant acted as a reasonable person would act under the same circumstances. Instead, the Defendant’s right to use force ended when the danger ceased and the victim was disabled and on the ground being repeatedly kicked by the Defendant. See, e.g., State v. Garcia,
{44} Moreover, the extent of the victim’s injuries is not indicative of the Defendant fearing for his life and acting out of self-defense. Patricia McFeely, a forensic pathologist for the Office of the Medical Investigator for the State of New Mexico, performed an autopsy on the victim’s body. Dr. McFeely testified that the victim died four days after the incident from a Combination of fatal head injuries. There was subdural bleeding on the left side of the brain and areas of bruising or contusions on the brain on both the right and left side. As a result, there was a lot of swelling to the victim’s brain. The doctor testified that the areas of bruising on the brain were indicators of a substantial amount of force.
{45} In addition to the significant injuries to his brain, the victim also sustained smaller, less significant injuries on his arms, around his head, right eye, and right eyelid, extending down the right side of his face. Also, there were abrasions over his collarbone, right back and shoulder, on his left upper arm, back of his left lower arm, and on his knuckle. Internally, inside his stomach, there were areas of about four by three inches of soft tissue hemorrhage, which would indicate substantial blows to the abdomen. The injuries sustained by the victim were “extremely brutal and unnecessary blows by the defendant not consistent with self-defense.” State v. Martinez,
{46} Consequently, “the facts in evidence did not warrant submitting the issue of self-defense.” State v. Heisler,
III.
{47} Despite the broad nature of fundamental error review, the majority reverses the Defendant’s conviction for second degree murder by taking the jury instructions out of context and analyzing the claimed error in isolation. The notion that in a fundamental error analysis we should look solely to the jury instructions ignores the entire foundation upon which the doctrine of fundamental error is built and confuses a reversible error standard for a fundamental error standard. It is simply inconsistent to assert that under this broad doctrine, where we go in search of injustice, that we should be limited to looking only at the jury instructions. In deciding this case, as well as others like it, it is necessary to look far beyond the jury instructions at issue; we need to consider the individual facts and circumstances of the case and contemplate our role as the final arbiter in the criminal justice system. This is not a limited inquiry. To assert otherwise, as the majority opinion does, ignores the basic precepts of the doctrine of fundamental error. Upon my review of the individual facts and circumstances of this case, I find substantial evidence in the record to show that the Defendant killed the victim without any legal justification. Since the Defendant failed to demonstrate any circumstances that would shock the conscience or show a fundamental unfairness, I find no fundamental error. For these reasons, I respectfully dissent.
Dissenting Opinion
(dissenting).
{48} I respectfully dissent. I concur in Justice Baca’s dissent and agree with his thorough review of the doctrine of fundamental error. I write separately to express one additional reason why I believe the instructional error in this case does not amount to fundamental error. I believe that the element of unlawfulness was necessarily established under the instructions given by the trial court. “Clearly, when a jury’s finding that a defendant committed the alleged act, under the evidence in the case, necessarily includes or amounts to a finding on an element omitted from the jury’s instructions, any doubt as to the reliability of the conviction is eliminated and the error cannot be said to be fundamental.” Orosco,
{49} “It is the element of unlawfulness that is negated by self-defense.” Parish,
{50} The trial court did not instruct on the State’s burden to disprove self-defense beyond a reasonable doubt in the instructions pertaining to second degree murder; however, the trial court did instruct the jury that, in order to prove second degree murder, the State had to prove beyond a reasonable doubt that “[t]he defendant did not act as a result of sufficient provocation.” In New Mexico, as the jury was told, “ ‘[sufficient provocation’ can be any action, conduct or circumstances which arouse anger, rage, fear, sudden resentment, terror or other extreme emotions. The provocation must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.” UJI 14-222 NMRA 2001. By contrast, self-defense has the objective component that the defendant act as a reasonable person would act under the circumstances. However, self-defense, like sufficient provocation, also contains a subjective component which requires that the defendant be put in fear of immediate death or great bodily harm. In fact, “New Mexico has long recognized that ‘heat of passion’ [, or sufficient provocation,] includes fear for one’s own safety that may result in an unreasonable belief in the need to defend oneself.” State v. Abeyta,
{51} In the present case, based on the essential elements instruction for second degree murder given to the jury, the jury found beyond a reasonable doubt that Defendant did not act with sufficient provocation. As a result, the jury found beyond a reasonable doubt that Defendant did not act out of fear for his own safety. Because the jury found beyond a reasonable doubt that Defendant did not kill the victim as a result of a subjective fear, the jury necessarily found beyond a reasonable doubt that one element of self-defense, the subjective element of fear for one’s life, was not present under the facts in this case. The jury’s rejection of voluntary manslaughter, and verdict of guilty on the charge of second degree murder, “necessarily includes or amounts to a finding on an element omitted from the jury’s instructions.” Orosco,
{52} Parish supports this analysis. In Parish, the jury convicted the defendant of voluntary manslaughter, but “the jury was first asked to decide whether Parish committed second degree murder, which is distinguished from voluntary manslaughter by the element of provocation.” Parish,
{53} Unlike Parish, the jury in the present case rejected voluntary manslaughter based on an elements instruction that contained the appropriate burden of proof; the jury rejected the first step described in Parish of finding sufficient provocation. Accordingly, the jury was not faced with the question of distinguishing between provocation from self-defense. In other words, the jury rejected “imperfect” self-defense and, in so doing, also implicitly rejected “perfect” self-defense. See Abeyta,
{54} In Orosco, this Court cautioned:
[U]nder the rule of fundamental error reversal is required only when the interests of justice so require. A rule of automatic reversal would mandate a new trial in every instance of a failure to instruct, even though it was not only undisputed but indisputable that the element was met. Such a result, in our view, would be a perversion of justice, a classic demonstration of profoundly inequitable results that follow when the judiciary worships form and ignores substance.