October 07, 2015 – State of New Mexico v. Joe Anderson, No. 32,663

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	October 7, 2015
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 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

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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

1The written jury instructions appear in consecutive order in the record proper
with no gaps and do not include UJI 14-5190.
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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 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

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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

5
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).
{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

6
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

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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 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

8
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,

9
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 words or
phrases which are of easy comprehension to the ordinary layman”). That is not the

10
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).

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{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

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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 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

13
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-

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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 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.”

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{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

16
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 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

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{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