issue for fundamental error in New Mexico

2024See State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 1134 .

2024See State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 1134 .

2021Cf. State v. Johnson, 2010-NMSC-016, ¶ 53 , 148 N.M. 50 , 229 P.3d 523 (reviewing an issue for fundamental error where the defendant had not moved for a mistrial on that ground during trial).6 {5} Under fundamental error review, we will reverse a conviction “if an error implicate[s] a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.” State v. Barber, 2004-NMSC-019, ¶ 18 , 135 N.M. 621 , 92 P.3d 633 (internal quotation marks and citation omitted).

2021Cf. State v. Johnson, 2010-NMSC-016, ¶ 53 , 148 N.M. 50 , 229 P.3d 523 (reviewing an issue for fundamental error where the defendant had not moved for a mistrial on that ground during trial).6 {5} Under fundamental error review, we will reverse a conviction “if an error implicate[s] a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.” State v. Barber, 2004-NMSC-019, ¶ 18 , 135 N.M. 621 , 92 P.3d 633 (internal quotation marks and citation omitted).

2021The burden is on the party “alleging fundamental error” to “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.” State v. Cunningham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 (internal quotation marks and citation omitted). {5} In determining whether a stop was pretextual, the trial court must “consider the totality of the circumstances, judge the credibility of witnesses, [and] weigh the evidence . . . [including] the objective reasonableness of an offic

2021The burden is on the party “alleging fundamental error” to “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.” State v. Cunningham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 (internal quotation marks and citation omitted). {5} In determining whether a stop was pretextual, the trial court must “consider the totality of the circumstances, judge the credibility of witnesses, [and] weigh the evidence . . . [including] the objective reasonableness of an offic

2023See State v. Ocon, 2021-NMCA-032, ¶ 7 , 493 P.3d 448 .

2022State v. Barber, 2004-NMSC-019, ¶ 8 , 135 N.M. 621 , 92 P.3d 633 ; see also State v. Ocon, 2021-NMCA-032, ¶¶ 7-8 , 493 P.3d 448 (providing that fundamental error review is a two-step process: first, we determine whether error occurred; and second, we determine whether any such error was fundamental). {3} Consistent with the uniform jury instruction applicable when alternative means of “force or coercion” are alleged,1 UJI 14-944 NMRA, the jury in this case was instructed on the elements of CSP as follows: 1. [D]efendant caused [Victim] to engage in sexual intercourse, or caused the insertion,

2023See State v. Ocon, 2021-NMCA-032, ¶ 7 , 493 P.3d 448 .

2022State v. Barber, 2004-NMSC-019, ¶ 8 , 135 N.M. 621 , 92 P.3d 633 ; see also State v. Ocon, 2021-NMCA-032, ¶¶ 7-8 , 493 P.3d 448 (providing that fundamental error review is a two-step process: first, we determine whether error occurred; and second, we determine whether any such error was fundamental). {3} Consistent with the uniform jury instruction applicable when alternative means of “force or coercion” are alleged,1 UJI 14-944 NMRA, the jury in this case was instructed on the elements of CSP as follows: 1. [D]efendant caused [Victim] to engage in sexual intercourse, or caused the insertion,

2019See State v. Boeglin, 1987-NMSC-002 , ¶ 11, 105 N.M. 247 , 731 P.2d 943 (holding that failure to object to erroneous jury instructions constituted waiver, but reviewing the issue for fundamental error). 10 1 {17} Defendant contends that the State failed to prove that the Monte Carlo had a 2 market value over $2,500 because the State only provided evidence of the cost of 3 repair, which Defendant claims is irrelevant.

2019See State v. Boeglin, 1987-NMSC-002 , ¶ 11, 105 N.M. 247 , 731 P.2d 943 (holding that failure to object to erroneous jury instructions constituted waiver, but reviewing the issue for fundamental error). 10 1 {17} Defendant contends that the State failed to prove that the Monte Carlo had a 2 market value over $2,500 because the State only provided evidence of the cost of 3 repair, which Defendant claims is irrelevant.

2019See State v. Lucero, 1999-NMCA-102, ¶ 45 , 127 N.M. 672 , 986 P.2d 468 (refusing to address arguments that were not made in the district court and when no assertion of fundamental error was made on appeal). {9} Finally, even were we to assume this error was preserved, Defendant has failed to address the State’s convincing showing that Exhibit 3 was merely cumulative of other facts in evidence and that its admission did not rise to the level of harmful error.

2019See State v. Lucero, 1999-NMCA-102, ¶ 45 , 127 N.M. 672 , 986 P.2d 468 (refusing to address arguments that were not made in the district court and when no assertion of fundamental error was made on appeal). {9} Finally, even were we to assume this error was preserved, Defendant has failed to address the State’s convincing showing that Exhibit 3 was merely cumulative of other facts in evidence and that its admission did not rise to the level of harmful error.

2023Prosecutorial Misconduct {5} Defendant contends that the State committed prosecutorial misconduct when the prosecutor stated during closing argument, “I don’t have to beat a confession out of you.” [BIC 6] Defendant argues that this statement “implied that [Defendant] was guilty[,]” “dr[e]w attention to [Defendant’s] silence[,]” “asked the jury to draw an adverse conclusion from the fact that [Defendant] had not confessed[,]” and that this prejudiced Defendant. [BIC 6-7] {6} Because Defendant did not object to the statement at the time and preserve his claim of error, we review this issue for

2023Prosecutorial Misconduct {5} Defendant contends that the State committed prosecutorial misconduct when the prosecutor stated during closing argument, “I don’t have to beat a confession out of you.” [BIC 6] Defendant argues that this statement “implied that [Defendant] was guilty[,]” “dr[e]w attention to [Defendant’s] silence[,]” “asked the jury to draw an adverse conclusion from the fact that [Defendant] had not confessed[,]” and that this prejudiced Defendant. [BIC 6-7] {6} Because Defendant did not object to the statement at the time and preserve his claim of error, we review this issue for

2024See State v. Silva, 2008-NMSC-051, ¶ 13 , 144 N.M. 815 , 192 P.3d 1192 (explaining that fundamental error review is an exception to the preservation rule and is only employed “under extraordinary circumstances to prevent the miscarriage of justice”).

2024See State v. Silva, 2008-NMSC-051, ¶ 13 , 144 N.M. 815 , 192 P.3d 1192 (explaining that fundamental error review is an exception to the preservation rule and is only employed “under extraordinary circumstances to prevent the miscarriage of justice”).

2018Fundamental error "goes to the foundation or basis of a defendant's rights or ... take[s] from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive" and "only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand." Cunningham , 2000-NMSC-009 , ¶ 13, 128 N.M. 711 , 998 P.2d 176 (internal quotation marks and citations omitted). {63} In Johnson we recognized that " 'the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to

2018Fundamental error "goes to the foundation or basis of a defendant's rights or ... take[s] from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive" and "only applies in exceptional circumstances when guilt is so doubtful that it would shock the judicial conscience to allow the conviction to stand." Cunningham , 2000-NMSC-009 , ¶ 13, 128 N.M. 711 , 998 P.2d 176 (internal quotation marks and citations omitted). {63} In Johnson we recognized that " 'the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to

2024See State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 1134 . {5} “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.” State v. Anderson, 2016-NMCA-007, ¶ 10 , 364 P.3d 306 .

2023Prosecutorial Misconduct {5} Defendant contends that the State committed prosecutorial misconduct when the prosecutor stated during closing argument, “I don’t have to beat a confession out of you.” [BIC 6] Defendant argues that this statement “implied that [Defendant] was guilty[,]” “dr[e]w attention to [Defendant’s] silence[,]” “asked the jury to draw an adverse conclusion from the fact that [Defendant] had not confessed[,]” and that this prejudiced Defendant. [BIC 6-7] {6} Because Defendant did not object to the statement at the time and preserve his claim of error, we review this issue for

2023See id. “[T]he prosecution cannot suggest that an innocent person would have testified to explain the circumstances and therefore the defendant, who did not testify, must be guilty.” State v. La Madrid, 1997-NMCA-057, ¶ 10 , 123 N.M. 463 , 943 P.2d 110 .

2023See id. “[T]he prosecution cannot suggest that an innocent person would have testified to explain the circumstances and therefore the defendant, who did not testify, must be guilty.” State v. La Madrid, 1997-NMCA-057, ¶ 10 , 123 N.M. 463 , 943 P.2d 110 .

2023See id. “[T]he prosecution cannot suggest that an innocent person would have testified to explain the circumstances and therefore the defendant, who did not testify, must be guilty.” State v. La Madrid, 1997-NMCA-057, ¶ 10 , 123 N.M. 463 , 943 P.2d 110 .

2020See State v. Johnson, 2010-NMSC-016, ¶ 53 , 148 N.M. 50 , 229 P.3d 523 (reviewing an issue for fundamental error where the defendant had not moved for a mistrial on that ground during trial). 3 {30} “Error that is fundamental must be such error as goes to the foundation or basis of a defendant’s rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive.” State v. Gallegos, 2009-NMSC-017, ¶ 27 , 146 N.M. 88 , 206 P.3d 993 (internal quotation marks and citation omitted).

2020See State v. Johnson, 2010-NMSC-016, ¶ 53 , 148 N.M. 50 , 229 P.3d 523 (reviewing an issue for fundamental error where the defendant had not moved for a mistrial on that ground during trial). 3 {30} “Error that is fundamental must be such error as goes to the foundation or basis of a defendant’s rights or must go to the foundation of the case or take from the defendant a right which was essential to his defense and which no court could or ought to permit him to waive.” State v. Gallegos, 2009-NMSC-017, ¶ 27 , 146 N.M. 88 , 206 P.3d 993 (internal quotation marks and citation omitted).

2018See State v. Boeglin, 1987-NMSC-002 , ¶ 11, 105 N.M. 247 , 731 P.2d 943 (holding that failure to object to erroneous jury instructions 29 constituted waiver, but reviewing the issue for fundamental error); see also State v. Roybal, 1960-NMSC-012 , ¶ 6, 66 N.M. 416 , 349 P.2d 332 (“Failure [to object to jury instructions or tender different ones] is a waiver of the right to object in this court.”).

2018See State v. Boeglin, 1987-NMSC-002 , ¶ 11, 105 N.M. 247 , 731 P.2d 943 (holding that failure to object to erroneous jury instructions 29 constituted waiver, but reviewing the issue for fundamental error); see also State v. Roybal, 1960-NMSC-012 , ¶ 6, 66 N.M. 416 , 349 P.2d 332 (“Failure [to object to jury instructions or tender different ones] is a waiver of the right to object in this court.”).

2014See State v. Harrison, 17 2010-NMSC-038, ¶ 10 , 148 N.M. 500 , 238 P.3d 869 (stating that the appellate courts 18 review issues that were not properly preserved below for fundamental error). 19 {32} We do not see any fundamental error here because, even assuming there was 20 error, it would be harmless.

2014See State v. Harrison, 17 2010-NMSC-038, ¶ 10 , 148 N.M. 500 , 238 P.3d 869 (stating that the appellate courts 18 review issues that were not properly preserved below for fundamental error). 19 {32} We do not see any fundamental error here because, even assuming there was 20 error, it would be harmless.