error instruction in New Mexico

2013See State v. Serially, 2001-NMSC-033 , ¶ 10 n.1, 131 N.M. 258 , 34 P.3d 1134 (declining to address a claim of error in a voluntary manslaughter instruction when the defendant was not found guilty of voluntary manslaughter and was instead found guilty of second-degree murder); State v. Cunningham, 2000-NMSC-009, ¶¶ 7 , 8 n.3, 128 N.M. 711 , 998 P.2d 176 (refusing to review a claim of fundamental error in the omission of the element negating self-defense in a voluntary manslaughter instruction when the defendant was not found guilty of voluntary manslaughter and was instead convicted of first-de

2013See State v. Serially, 2001-NMSC-033 , ¶ 10 n.1, 131 N.M. 258 , 34 P.3d 1134 (declining to address a claim of error in a voluntary manslaughter instruction when the defendant was not found guilty of voluntary manslaughter and was instead found guilty of second-degree murder); State v. Cunningham, 2000-NMSC-009, ¶¶ 7 , 8 n.3, 128 N.M. 711 , 998 P.2d 176 (refusing to review a claim of fundamental error in the omission of the element negating self-defense in a voluntary manslaughter instruction when the defendant was not found guilty of voluntary manslaughter and was instead convicted of first-de

2010Although Defendant had tendered an improper jury instruction, the Court determined that “ ‘Defendant’s tender of a proper, written instruction ... would not have alerted the trial court to its error ... and would not have resulted in avoidance of the error because the error was based on incorrect rationales having nothing to do with the tender of written instructions.’ ” Id. ¶ 11 (quoting State v. Diaz, 121 N.M. 28, 34 , 908 P.2d 258, 264 (Ct.App.1995)).

2010Although Defendant had tendered an improper jury instruction, the Court determined that “ ‘Defendant’s tender of a proper, written instruction ... would not have alerted the trial court to its error ... and would not have resulted in avoidance of the error because the error was based on incorrect rationales having nothing to do with the tender of written instructions.’ ” Id. ¶ 11 (quoting State v. Diaz, 121 N.M. 28, 34 , 908 P.2d 258, 264 (Ct.App.1995)).

1992See State v. Hargrove, 108 N.M. 233, 236-37 , 771 P.2d 166, 169-70 (1989) (if element "was not factually in issue, then the error in the instruction would be nonjurisdictional"); see also Ortiz v. State, 106 N.M. 695, 698 , 749 P.2d 80, 83 (1988) (claim of jurisdictional error supported since element was factually in issue); cf. State v. Bell, 90 N.M. 134, 140-43 , 560 P.2d 925, 931-34 (1977) (error not jurisdictional where element was not factually in issue and was a subsidiary fact).

1992See State v. Hargrove, 108 N.M. 233, 236-37 , 771 P.2d 166, 169-70 (1989) (if element "was not factually in issue, then the error in the instruction would be nonjurisdictional"); see also Ortiz v. State, 106 N.M. 695, 698 , 749 P.2d 80, 83 (1988) (claim of jurisdictional error supported since element was factually in issue); cf. State v. Bell, 90 N.M. 134, 140-43 , 560 P.2d 925, 931-34 (1977) (error not jurisdictional where element was not factually in issue and was a subsidiary fact).

2024See State v. Rackley, 2000-NMCA-027, ¶¶ 9, 1 , 128 N.M. 761 , 998 P.2d 1212 (noting that excusals for cause are within the district court’s discretion and that “[a]s the party claiming juror bias, [the d]efendant had the burden of proving it”); State v. Barber, 2004-NMSC-019, ¶ 8 , 135 N.M. 621 , 92 P.3d 633 (explaining that an appellate court “review[s] only for fundamental error” if the defendant did not preserve an error and that the doctrine applies “only under exceptional circumstances and only to prevent a miscarriage of justice”). {9} Juror 25 worked in the emergency room and had encoun

2024See State v. Rackley, 2000-NMCA-027, ¶¶ 9, 1 , 128 N.M. 761 , 998 P.2d 1212 (noting that excusals for cause are within the district court’s discretion and that “[a]s the party claiming juror bias, [the d]efendant had the burden of proving it”); State v. Barber, 2004-NMSC-019, ¶ 8 , 135 N.M. 621 , 92 P.3d 633 (explaining that an appellate court “review[s] only for fundamental error” if the defendant did not preserve an error and that the doctrine applies “only under exceptional circumstances and only to prevent a miscarriage of justice”). {9} Juror 25 worked in the emergency room and had encoun

2011See id.

2010Furthermore, it did “not appear that any effort was made to cure the error by instruction to the jury.” Id. at 243 , 539 P.2d at 633 .

2010Furthermore, it did “not appear that any effort was made to cure the error by instruction to the jury.” Id. at 243 , 539 P.2d at 633 .

2010Id. (“It does not appear that any effort was made to cure the error by instruction to the jury.”); People v. Segovia, 196 P.3d 1126, 1133-34 (Colo.2008) (holding no manifest necessity to declare mistrial “even assuming the question was improper” because in part, the trial judge failed to consider a “curative instruction reminding jurors that only answers to questions, and not the questions themselves, are evidence”); Hubbard v. State, 395 Md. 73 , 909 A.2d 270, 281 (2006) (“If there was no reasonable alternative, ordinarily the mistrial is manifestly necessary, and retrial is not barred by dou

2010Id. (“It does not appear that any effort was made to cure the error by instruction to the jury.”); People v. Segovia, 196 P.3d 1126, 1133-34 (Colo.2008) (holding no manifest necessity to declare mistrial “even assuming the question was improper” because in part, the trial judge failed to consider a “curative instruction reminding jurors that only answers to questions, and not the questions themselves, are evidence”); Hubbard v. State, 395 Md. 73 , 909 A.2d 270, 281 (2006) (“If there was no reasonable alternative, ordinarily the mistrial is manifestly necessary, and retrial is not barred by dou

2010If there is a reasonable alternative, the mistrial is not manifestly necessary, and a defendant cannot be retried.”); Commonwealth v. Balog, 395 Pa.Super. 158 , 576 A.2d 1092, 1097-98 (1990) (“[T]he trial court’s failure to consider the less drastic alternative of curative instructions shows that the court did not adequately consider the importance to the defendant of being able, once and for all, to have his trial completed by a particular tribunal.”).

2010If there is a reasonable alternative, the mistrial is not manifestly necessary, and a defendant cannot be retried.”); Commonwealth v. Balog, 395 Pa.Super. 158 , 576 A.2d 1092, 1097-98 (1990) (“[T]he trial court’s failure to consider the less drastic alternative of curative instructions shows that the court did not adequately consider the importance to the defendant of being able, once and for all, to have his trial completed by a particular tribunal.”).

2010Id. (“It does not appear that any effort was made to cure the error by instruction to the jury.”); People v. Segovia, 196 P.3d 1126, 1133-34 (Colo.2008) (holding no manifest necessity to declare mistrial “even assuming the question was improper” because in part, the trial judge failed to consider a “curative instruction reminding jurors that only answers to questions, and not the questions themselves, are evidence”); Hubbard v. State, 395 Md. 73 , 909 A.2d 270, 281 (2006) (“If there was no reasonable alternative, ordinarily the mistrial is manifestly necessary, and retrial is not barred by dou

2001See Traeger, 2000-NMCA-015,¶ 9 , 128 N.M. 668 , 997 P.2d 142 ; cf. Bonham, 126 N.M. 382 , 970 P.2d 154 , 1998-NMCA-178, ¶ 26 .

2001See Traeger, 2000-NMCA-015,¶ 9 , 128 N.M. 668 , 997 P.2d 142 ; cf. Bonham, 126 N.M. 382 , 970 P.2d 154 , 1998-NMCA-178, ¶ 26 .

1992See State v. Hargrove, 108 N.M. 233, 236-37 , 771 P.2d 166, 169-70 (1989) (if element "was not factually in issue, then the error in the instruction would be nonjurisdictional"); see also Ortiz v. State, 106 N.M. 695, 698 , 749 P.2d 80, 83 (1988) (claim of jurisdictional error supported since element was factually in issue); cf. State v. Bell, 90 N.M. 134, 140-43 , 560 P.2d 925, 931-34 (1977) (error not jurisdictional where element was not factually in issue and was a subsidiary fact).

1992See State v. Hargrove, 108 N.M. 233, 236-37 , 771 P.2d 166, 169-70 (1989) (if element "was not factually in issue, then the error in the instruction would be nonjurisdictional"); see also Ortiz v. State, 106 N.M. 695, 698 , 749 P.2d 80, 83 (1988) (claim of jurisdictional error supported since element was factually in issue); cf. State v. Bell, 90 N.M. 134, 140-43 , 560 P.2d 925, 931-34 (1977) (error not jurisdictional where element was not factually in issue and was a subsidiary fact).

1992See State v. Hargrove, 108 N.M. 233, 236-37 , 771 P.2d 166, 169-70 (1989) (if element "was not factually in issue, then the error in the instruction would be nonjurisdictional"); see also Ortiz v. State, 106 N.M. 695, 698 , 749 P.2d 80, 83 (1988) (claim of jurisdictional error supported since element was factually in issue); cf. State v. Bell, 90 N.M. 134, 140-43 , 560 P.2d 925, 931-34 (1977) (error not jurisdictional where element was not factually in issue and was a subsidiary fact).

1992See State v. Hargrove, 108 N.M. 233, 236-37 , 771 P.2d 166, 169-70 (1989) (if element "was not factually in issue, then the error in the instruction would be nonjurisdictional"); see also Ortiz v. State, 106 N.M. 695, 698 , 749 P.2d 80, 83 (1988) (claim of jurisdictional error supported since element was factually in issue); cf. State v. Bell, 90 N.M. 134, 140-43 , 560 P.2d 925, 931-34 (1977) (error not jurisdictional where element was not factually in issue and was a subsidiary fact).

1975See United States v. Whitlow, supra; People v. Maguire, supra. It does not appear that any effort was made to cure the error by instruction to the jury.