State v. Anderson , 2016 NMCA 7 ( 2015 )


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    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'05- 16:10:30 2016.01.14
    Certiorari Denied, December 7, 2015, No. 35,591
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 2016-NMCA-007
    Filing Date: October 7, 2015
    Docket No. 32,663
    STATE OF NEW MEXICO,
    Plaintiff-Appellee,
    v.
    JOE ANDERSON,
    Defendant-Appellant,
    APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    Jacqueline D. Flores, District Judge
    Hector H. Balderas, Attorney General
    Nicole Beder, Assistant Attorney General
    Santa Fe, NM
    for Appellee
    Jorge A. Alvarado, Chief Public Defender
    Tania Shahani, Assistant Appellate Defender
    Santa Fe, NM
    for Appellant
    OPINION
    KENNEDY, Judge.
    {1}     Defendant appeals from his conviction for second degree murder asserting that
    fundamental error was committed when the district court failed to give a necessary
    instruction that it had agreed to give. Defendant asserts this was fundamental error. Because
    the instruction was critical to the jury’s determination on the issue of self-defense and
    because the district court had a duty to fully instruct the jury on all relevant aspects of the
    1
    law, we agree with Defendant, reverse his conviction, and remand for a new trial.
    I.     BACKGROUND
    {2}     The trial presented differing accounts to the jury of what happened between
    Defendant and Vicente Sanchez the night of November 19, 2010. It appears, however, that
    the following events occurred, subject to some variation.
    A.     Altercation
    {3}      Sanchez attended a house party on November 19, 2010, at which Defendant was
    present. The two men took an immediate dislike to each other and got into an argument.
    When Sanchez’s girlfriend tried to intervene, Defendant moved her out of the way, and
    Sanchez punched Defendant. Defendant fell backward into the next room, and a brawl began
    between several individuals with apparent loyalties to either Sanchez or Defendant.
    Sanchez’s girlfriend armed herself with a handgun taken from Sanchez’s pocket and, upon
    brandishing the handgun, brought the brawl to a momentary standstill. During the lull,
    Defendant removed himself and hid behind the doorway of the room into which he fell
    where he, too, drew a handgun. Believing Sanchez had obtained the gun from his girlfriend
    by this time, Defendant came out from behind the doorway with his gun raised and fired six
    shots from a distance of approximately two to three feet, four of which hit Sanchez. Sanchez
    died from the wounds he sustained, and Defendant was charged with murdering Sanchez.
    B.     Trial—Diagrams
    {4}     Detective Anton Maltby created diagrams of the home where the altercation occurred
    as part of his investigation of the incident. The diagrams gave a rough depiction of the
    location of the house, yard, surrounding buildings, cars, and rooms, as well as provided the
    layout of the furniture in the rooms. Defense counsel objected to the State’s proffer of these
    diagrams, both during trial and in a motion in limine, claiming that they should be excluded
    under Rule 11-403 NMRA, asserting they were cumulative because the jury could
    understand the layout of the buildings and rooms by examining photographs, and misleading
    because they were not drawn to scale and did not accurately portray the location of the
    furniture in the living room. The district court overruled the objection because it believed
    the diagrams were instructive to the jury and because witnesses had acknowledged that they
    were not drawn to scale.
    C.     Trial—Jury Instructions
    {5}     During trial, Defendant requested a self-defense instruction (UJI 14-5171 NMRA)
    and a stand-your-ground (or no-retreat) instruction (UJI 14-5190 NMRA). The district court
    allowed the self-defense instruction. In response to the State’s objection to the no-retreat
    instruction, the district court held that it was for the jury to decide whether Defendant was
    standing his ground or re-involving himself in the conflict and that the jury should be able
    2
    to make an informed decision on that issue. As such, the district court decided to submit the
    no-retreat instruction to the jury as well.
    {6}     It is undisputed that, although the district court determined that both a general self-
    defense instruction and a stand-your-ground instruction were warranted in the case, it did not
    instruct the jury on New Mexico’s stand-your-ground law, either orally or in the written
    instructions.1 The omission of UJI 14-5190 appears to have been the result of an oversight
    on the part of the district court and all counsel. During the course of deliberations, the jury
    submitted a question to the district court asking if there was a “stand-your-ground” law in
    New Mexico. The jury ultimately withdrew the question because it had “found what [it was]
    looking for.” Defense counsel mistakenly believed that the no-retreat instruction had been
    included in the written instructions given to the jury and offered the district court
    reassurances to that effect. Counsel’s reassurance, coupled with the withdrawal of the jury’s
    question, ended the court’s discussion with counsel regarding the stand-your-ground
    instruction. The jury ultimately found Defendant guilty of second degree murder, and he
    appeals.
    II.    DISCUSSION
    {7}    Defendant makes several assertions of error, which we consolidate as an assertion
    of fundamental error based on the missing jury instruction, an assertion of error based on the
    admission of a diagram of the house where the altercation occurred, and an assertion of error
    based on the district court’s denial of a modification to UJI 14-250 NMRA.
    A.     The Omission of the Jury Instruction Was Fundamental Error
    1.     Fundamental Error
    {8}      Defendant did not object to the absence of UJI 14-5190 from the jury instructions
    when they were given. We therefore review only for fundamental error. State v. Benally,
    2001-NMSC-033, ¶ 12, 
    131 N.M. 258
    , 
    34 P.3d 1134
    (“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. If not, we review for fundamental
    error.” (citation omitted)); State v. Cunningham, 2000-NMSC-009, ¶ 8, 
    128 N.M. 711
    , 
    998 P.2d 176
    . An error is fundamental when it “ ‘goes to the foundation or basis of a defendant’s
    rights.’ ” Cunningham, 2000-NMSC-009, ¶ 13 (quoting State v. Garcia, 1942-NMSC-030,
    ¶ 25, 
    46 N.M. 302
    , 
    128 P.2d 459
    ). “We will not ‘uphold a conviction if an error implicated
    a fundamental unfairness within the system that would undermine judicial integrity if left
    unchecked.’ ” State v. Rodarte, 2011-NMCA-067, ¶ 10, 
    149 N.M. 819
    , 
    255 P.3d 397
    (quoting State v. Barber, 2004-NMSC-019, ¶ 18, 
    135 N.M. 621
    , 
    92 P.3d 633
    ).
    1
    The written jury instructions appear in consecutive order in the record proper with
    no gaps and do not include UJI 14-5190.
    3
    {9}     When reviewing jury instruction issues for fundamental error, we first apply the
    standard for reversible error by determining if a reasonable juror would have been “confused
    or misdirected” by the jury instructions that were given. Barber, 2004-NMSC-019, ¶ 19.
    Juror confusion or misdirection may stem “from instructions which, through omission or
    misstatement, fail to provide the juror with an accurate rendition of the relevant law.”
    Benally, 2001-NMSC-033, ¶ 12. If we determine that a reasonable juror would have been
    confused or misdirected by the instructions given, our fundamental error analysis requires
    us to then “ ‘review the entire record, placing the jury instructions in the context of the
    individual facts and circumstances of the case, to determine whether the [d]efendant’s
    conviction was the result of a plain miscarriage of justice.’ ” State v. Sandoval, 2011-NMSC-
    022, ¶ 20, 
    150 N.M. 224
    , 
    258 P.3d 1016
    (quoting Barber, 2004-NMSC-019, ¶ 19). If such
    a miscarriage of justice exists, we deem it fundamental error.
    2.      The Jury Was Misdirected by the Instructions Issued
    {10} The State makes no challenge to the district court’s decision that the instruction was
    warranted but states it was solely Defendant’s responsibility to ensure it was given. We
    disagree with this limited view. Where there is any evidence to establish a self-defense
    theory, it is the duty of the court to fully and clearly instruct the jury on all relevant aspects
    of self-defense. Benally, 2001-NMSC-033, ¶ 41; State v. Heisler, 1954-NMSC-032, ¶ 23,
    
    58 N.M. 446
    , 
    272 P.2d 660
    (stating that “where self-defense is involved in a criminal case
    and there is any evidence, although slight, to establish [self-defense], it is not only proper
    for the court, but its duty as well, to instruct the jury fully and clearly on all phases of the law
    on the issue that are warranted by the evidence”). The district court’s conclusion that there
    was evidence to support the issuance of both the general self-defense instruction and the no-
    retreat instruction triggered the district court’s duty to fully and clearly instruct the jury on
    both self-defense and no-retreat. See Heisler, 1954-NMSC-032, ¶ 23.
    {11} The jury was informed of the elements of self-defense: (1) Defendant was put in fear
    by an apparent danger of immediate death or great bodily harm, (2) the killing resulted from
    that fear, and (3) Defendant acted reasonably when he or she killed. State v. Rudolfo, 2008-
    NMSC-036, ¶ 17, 
    144 N.M. 305
    , 
    187 P.3d 170
    ; see also UJI 14-5171 (enumerating the
    elements of self-defense). The jury was not, however, informed as required by UJI 14-5190
    that a person “who is threatened with an attack need not retreat. In the exercise of his right
    of self[-]defense, he may stand his ground and defend himself.”
    {12} Because of the omission, the jury’s understanding of all of the elements of the law
    governing self-defense was deficient. We conclude not only that a reasonable juror would
    have been misdirected by the jury instructions given, but also that the jury in Defendant’s
    case was misdirected. As such, there was reversible error below; we now turn to an analysis
    of whether there was fundamental error.
    {13} The State maintains that UJI 14-5190 is a definition or amplification of an essential
    self-defense element and that its omission from the given instructions therefore does not rise
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    to the level of fundamental error. See State v. Coffin, 1999-NMSC-038, ¶ 17, 
    128 N.M. 192
    ,
    
    991 P.2d 477
    (stating that “it is error to refuse a requested instruction defining or amplifying
    an element only if ‘the element was not adequately covered by the instructions given’ ”
    (citation omitted)). While failure to instruct on a definition does not ordinarily rise to the
    level of fundamental error, some definitional instructions provide “a determination critical
    to understanding the elements instruction” and, as such, can be of central importance to a fair
    trial. Barber, 2004-NMSC-019, ¶¶ 20, 24-25 (discussing State v. Mascareñas, 2000-NMSC-
    017, 
    129 N.M. 230
    , 
    4 P.3d 1221
    ). In order to determine whether UJI 14-5190 is a
    definitional instruction that “provided a determination critical to understanding” the self-
    defense instruction, we must consider all the facts and circumstances and decide “whether
    the missing instruction caused such confusion that the jury could have convicted [the
    d]efendant based upon a deficient understanding” of the law regarding self-defense. Barber,
    2004-NMSC-019, ¶ 25 (concluding amplification of an instruction to provide a critical
    definition can prevent juror confusion). If such confusion existed, even if UJI 14-5190 is
    viewed as a definitional instruction, its omission may nevertheless constitute fundamental
    error.
    {14} Where the evidentiary basis for the instruction has been laid, UJI 14-5190 informs
    jurors of what is reasonable under the third prong of UJI 14-5190, and it is therefore critical
    to understanding the third element of a general self-defense instruction. See Barber, 2004-
    NMSC-019, ¶ 25 (recognizing the necessity for jury instruction when absence of
    clarification would render the jury’s understanding of the law deficient). Because
    Defendant’s self-defense theory rests on the argument that, under the circumstances, he had
    no duty to retreat from the confrontation with Sanchez, and it is undisputed that that theory
    rests upon a correct statement of the law, we agree that the instructions provided to the jury
    failed to fully and adequately inform them of the law of self-defense relevant to the case. The
    jury was required to make a critical determination of whether Defendant acted reasonably
    when he killed Sanchez and could not make that determination without being informed as
    to whether New Mexico law deems it reasonable to stand-your-ground when retreat is
    possible. Omission of UJI 14-5190 alters what “reasonable” means in the context of self-
    defense in this case.
    3.     The No-Retreat Instruction Was Critical to the Jury’s Self-Defense
    Determination
    {15} We recognize that courts generally disfavor finding fundamental error where a
    definition is omitted from jury instructions. That reluctance is premised on the concept that
    many definitions carry common meanings that are comparable to legal meanings and, as
    such, their omission does not prejudice a defendant’s rights. See Barber, 2004-NMSC-019,
    ¶ 22 (acknowledging that potential for jury confusion exists where the legal definition of a
    term is “not necessarily rooted in common discourse”); A.M. Swarthout, Annotation, Duty
    in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged, 
    169 A.L.R. 315
    , III(g) (acknowledging that while trial courts may have a “duty to define or
    explain technical words[,]” they often have no duty to define “nontechnical, self-explaining
    5
    words or phrases which are of easy comprehension to the ordinary layman”). That is not the
    case here. Rather, the term “reasonable” in the third prong of the self-defense instruction
    carries a different meaning when read in conjunction with the no-retreat instruction than it
    does alone. Read alone, a person exercising the “degree of attention, knowledge,
    intelligence, and judgment that society requires of its members” is acting reasonably. Black’s
    Law Dictionary (10th ed. 2014) (defining “reasonable person”). When read together with the
    no-retreat instruction, however, a person who, when threatened with an attack, does not
    retreat and stands his ground when exercising his right of self-defense is acting reasonably.
    See UJI 14-5190; cf. Brown v. United States, 
    256 U.S. 335
    , 344 (1921) (acknowledging that
    retreat, or failure to retreat, is a fact to be considered in determining whether actions made
    in self-defense were reasonable); Rowe v. United States, 
    164 U.S. 546
    , 558 (1896) (holding
    that a defendant’s self-defense acts were reasonable where the law did not require him to
    retreat when threatened with a deadly weapon). Thus, we conclude that once the district
    court determined the propriety of giving it, the failure to provide the no-retreat instruction
    that informed a determination critical to the case was akin to a missing elements instruction.
    Cf. Mascareñas, 2000-NMSC-017, ¶ 20 (concluding that the definition of “reckless
    disregard” was not a mere amplification of a term and instead was more akin to an element
    instruction because it was aimed at preventing confusion of the standard necessary to sustain
    a conviction).
    {16} Given the difference between the reasonableness standard of a self-defense
    instruction alone and a self-defense instruction read in conjunction with the no-retreat
    instruction, there is simply no way to determine to which standard Defendant was held. The
    jury’s specific question on the subject and the absence of the instruction specifically
    informing the jury of the law, reinforce our conclusion. We therefore cannot determine that
    the jury delivered its verdict on a legally sound basis. The jury answered its own question
    regarding no-retreat with other information than the correct instruction. It was not fully and
    clearly informed as to the law governing the case and likely made its decision based, at least
    in some part, on a deficient understanding of the law governing self-defense.
    {17} We conclude the jury’s question regarding New Mexico’s “stand-your-ground” law
    and its subsequent withdrawal of that question, is evidence that the jury needed the no-retreat
    instruction not only to be fully apprised of all relevant aspects of the law governing self-
    defense but also in order to avoid being misdirected by the instructions given. See State v.
    Navarez, 2010-NMCA-049, ¶ 25, 
    148 N.M. 820
    , 
    242 P.2d 387
    (concluding that jury
    confusion was established by the jury’s question to the trial court judge). The jury ultimately
    withdrew the question because it had “found what [it] was looking for[,]” namely, the
    “stand-your-ground” standard in New Mexico. We have no way of knowing what the jury
    found to clear up its confusion, but it was not UJI 14-5190.
    B.     Waiver Does Not Prohibit Fundamental Error Analysis
    {18} The failure of defense counsel to realize that the complete UJI 14-5190 was not
    given, does not bear upon our fundamental error analysis. The very nature of fundamental
    6
    error review is to protect rights that are essential to a defendant’s defense and “which no
    court could or ought to permit him to waive.” State v. Garcia, 1942-NMSC-030, ¶ 25, 
    46 N.M. 302
    , 
    128 P.2d 459
    . Fundamental error provides a means of relief that may not
    otherwise be available to defendants: “Where a man’s fundamental rights have been violated,
    while he may be precluded by the terms of the statute or the rules of appellate procedure
    from insisting . . . upon relief . . . , this court has the power, in its discretion, to relieve him
    and to see that injustice is not done.” 
    Id. ¶ 23
    (internal quotation marks and citation omitted).
    As such, the fundamental error doctrine stands as “[a]n exception to the general rule barring
    review of questions not properly preserved below.” State v. Osborne, 1991-NMSC-032, ¶
    38, 
    111 N.M. 654
    , 
    808 P.2d 624
    (internal quotation marks and citation omitted). Our courts
    have consistently acknowledged that waiver does not preclude courts from protecting a
    defendant’s rights on appeal where fundamental error exists. See, e.g., State v. Villa, 2004-
    NMSC-031, ¶ 15, 
    136 N.M. 367
    , 
    98 P.3d 1017
    (“Except in cases of fundamental error,
    timely objections to improper instructions must be made or error, if any, will be regarded as
    waived in every case.” (emphasis added) (alteration, internal quotation marks, and citation
    omitted)); State v. Boeglin, 1987-NMSC-002, ¶ 11, 
    105 N.M. 247
    , 
    731 P.2d 943
    (concluding
    that, although the defendant’s failure to object to incomplete instructions constituted a
    waiver of the objection, appellate courts “nevertheless will grant relief if fundamental error
    has occurred in a particular case”).
    {19} In light of existing precedent, even if Defendant did waive his objection to the
    omitted jury instruction, his waiver would not preclude our fundamental error analysis. Cf.
    State v. Foxen, 2001-NMCA-061, ¶ 12, 
    130 N.M. 670
    , 
    29 P.3d 1071
    (declining to
    characterize omission of instruction as invited error where deficiencies in the jury
    instructions “were simply the result of oversight or neglect[,]” applying fundamental error
    analysis). We therefore conclude that, in light of the importance that self-defense and no-
    retreat had in Defendant’s case, allowing his conviction to stand without adequate jury
    instructions would undermine judicial integrity and the legitimacy of the jury’s verdict. See
    Cunningham, 2000-NMSC-009, ¶ 21 (inclining toward reversal if error indicated a
    fundamental unfairness within the system that would undermine judicial integrity). We
    conclude that Defendant’s conviction was tainted by fundamental error and must be
    reversed. See State v. Gee, 2004-NMCA-042, ¶ 8, 
    135 N.M. 408
    , 
    89 P.3d 80
    (stating that
    appellate courts “reverse for fundamental error when the foundation or basis of a defendant’s
    case . . . is affected”).
    {20} Although this Opinion could end here with reversal, other issues raised by Defendant
    are likely to arise upon a retrial of the case. See State v. Beal, 1944-NMSC-011, ¶ 28, 
    48 N.M. 84
    , 
    146 P.2d 175
    . We therefore proceed to consider whether the district court erred in
    allowing the diagrams to be admitted and whether it erred by refusing Defendant’s
    modifications to UJI 14-250.
    C.      The District Court Did Not Abuse its Discretion in Admitting the Diagrams
    {21}    Appellate courts review a district court’s decision to admit or exclude evidence for
    7
    an abuse of discretion. State v. Guerra, 2012-NMSC-014, ¶ 36, 
    278 P.3d 1031
    . District
    courts have broad discretion when applying Rule 11-403. Guerra, 2012-NMSC-014, ¶ 36
    (citing State v. Chamberlain, 1991-NMSC-094, ¶ 9, 
    112 N.M. 723
    , 
    819 P.2d 673
    ).
    {22} Defendant contends that under Rule 11-403, the district court abused its discretion
    by admitting diagrams that an investigating detective made because they had the potential
    to mislead the jury. Rule 11-403 allows the court to “exclude relevant evidence if its
    probative value is substantially outweighed by a danger of one or more of the following:
    unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
    needlessly presenting cumulative evidence.”
    {23} We conclude that the district court did not abuse its discretion in determining that the
    danger that the jury would be misled as to the size of the living room did not outweigh the
    probative value of the diagrams. This was especially true because several witnesses testified
    to the actual size of the space. In addition, photographs entered into evidence showed the
    space and revealed the actual placement of the furniture. The district court even attached a
    caption to each diagram to emphasize that they were not drawn to scale. In light of the
    foregoing, we conclude that Defendant has not demonstrated that the district court abused
    its discretion.
    D.     The District Court Did Not Err in Refusing Defendant’s Modification of the UJI
    {24} Although Defendant asserts the district court erred in refusing to allow his modified
    version of UJI 14-250, which addresses jury procedure for the various degrees of homicide,
    we conclude that it properly refused the requested instruction. The district court was bound
    to give UJI 14-250 “without substantive modifications or substitution.” UJI Crim. General
    Use Note NMRA (stating that “when a uniform instruction is provided for the elements of
    a crime, a defense or a general explanatory instruction on evidence or trial procedure, the
    uniform instruction must be used without substantive modification or substitution”); see,
    e.g., State v. Watchman, 2005-NMCA-125, ¶ 15, 
    138 N.M. 488
    , 
    122 P.3d 855
    (stating that
    “there are a host of cases standing for the proposition that the uniform jury instructions and
    use notes are to be followed without substantial modification” (internal quotation marks and
    citation omitted)). Defendant requested the district court to submit an instruction to the jury
    stating, “If you find the state has not proved beyond a reasonable doubt that the defendant
    did not act in self-defense, you do not need to consider whether the defendant acted with
    sufficient provocation, and you must find the defendant not guilty.” Even without the general
    use note setting forth a requirement that UJIs not be modified, the instructions given to the
    jury were sufficient to assuage any concern that the jury was not adequately instructed on
    the necessary standards.
    {25} Reviewing all of the jury instructions as a whole, it is unlikely a reasonable juror
    would have been confused or misdirected. State v. Laney, 2003-NMCA-144, ¶ 38, 
    134 N.M. 648
    , 
    81 P.3d 591
    . The language that the district court rejected and Defendant complains
    should have been included, is virtually the same as the language included at the end of UJI
    8
    14-5190, the self-defense instruction. See UJI 14-5171 (“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 not guilty.”). We therefore conclude that the district court properly rejected
    Defendant’s proffered modifications to UJI 14-250.
    III.   CONCLUSION
    {26} Defendant was deprived of a fair trial by the absence of a no-retreat instruction. We
    therefore reverse his conviction and remand for a new trial. We conclude there was no abuse
    of discretion in the district court’s decision to allow the diagrams into evidence, subject to
    a limiting instruction. We also conclude there was no error in the district court’s refusal to
    modify UJI 14-250.
    {27}   IT IS SO ORDERED.
    ____________________________________
    RODERICK T. KENNEDY, Judge
    WE CONCUR:
    ____________________________________
    MICHAEL E. VIGIL, Chief Judge
    ____________________________________
    CYNTHIA A. FRY, Judge
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