fundamental error to a defendant choice doctrine in New Mexico

10 New Mexico opinions name it 2 courts 1999–2023 5 in the last five years

The cases below were cited by New Mexico courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (11)

Case	Followed	Cited
State v. Boeglingreen nm · 1987 · cited in 7 New Mexico opinions naming this issue, 1999–2023 2 sentences 2022See State v. Baxendale, 2016-NMCA-048, ¶ 11 , 370 12 P.3d 813 (citing State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 13 1134). 14 {18} However, in cases such as this, our Supreme Court has declined to apply the 15 doctrine of fundamental error to a defendant’s choice of whether to have the jury 16 instructed on lesser included offenses, and has “repeatedly . . . held that the defendant 17 cannot be heard to complain if the [district] court instructed the jury as he [or she] 18 desired.” State v. Boeglin, 1987-NMSC-002 , ¶ 10, 105 N.M. 247 , 731 P.2d 943 ; see 19 id. (“[New Mexi 2022See State v. Baxendale, 2016-NMCA-048, ¶ 11 , 370 12 P.3d 813 (citing State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 13 1134). 14 {18} However, in cases such as this, our Supreme Court has declined to apply the 15 doctrine of fundamental error to a defendant’s choice of whether to have the jury 16 instructed on lesser included offenses, and has “repeatedly . . . held that the defendant 17 cannot be heard to complain if the [district] court instructed the jury as he [or she] 18 desired.” State v. Boeglin, 1987-NMSC-002 , ¶ 10, 105 N.M. 247 , 731 P.2d 943 ; see 19 id. (“[New Mexi	5	7
State v. Fostergreen nm · 1999 · cited in 7 New Mexico opinions naming this issue, 2015–2023 2 sentences 2023Our Supreme Court has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 1999- NMSC-007, ¶ 54, 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 . 2023Our Supreme Court has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 1999- NMSC-007, ¶ 54, 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 .	2	7
Kersey v. Hatchgreen nm · 2010 · cited in 6 New Mexico opinions naming this issue, 2019–2023 2 sentences 2023Our Supreme Court has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 1999- NMSC-007, ¶ 54, 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 . 2023Our Supreme Court has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 1999- NMSC-007, ¶ 54, 126 N.M. 646 , 974 P.2d 140 , abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 .	2	6
State v. Villagreen nm · 2004 · cited in 4 New Mexico opinions naming this issue, 2019–2023 2 sentences 2022Defendant acknowledges that this issue was not preserved below. [BIC 12] {10} Rule 5-608(D) NMRA requires that to preserve error concerning a “failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed.” Our Supreme Court has “recognized an exception to this rule when a court fails to instruct a jury on an essential element of an offense that is factually at issue”; however, it has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster, 2022Defendant acknowledges that this issue was not preserved below. [BIC 12] {10} Rule 5-608(D) NMRA requires that to preserve error concerning a “failure to instruct on any issue, a correct written instruction must be tendered before the jury is instructed.” Our Supreme Court has “recognized an exception to this rule when a court fails to instruct a jury on an essential element of an offense that is factually at issue”; however, it has “declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses.” State v. Foster,	2	4
State v. Baxendalegreen nmctapp · 2016 · cited in 4 New Mexico opinions naming this issue, 2019–2022 2 sentences 2022See State v. Baxendale, 2016-NMCA-048, ¶ 11 , 370 P.3d 813 (citing State v. Benally, 2001- NMSC-033, ¶ 12, 131 N.M. 258 , 34 P.3d 1134 ). {18} However, in cases such as this, our Supreme Court has declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses, and has “repeatedly . . . held that the defendant cannot be heard to complain if the [district] court instructed the jury as he [or she] desired.” State v. Boeglin, 1987-NMSC-002 , ¶ 10, 105 N.M. 247 , 731 P.2d 943 ; see id. (“[New Mexico courts] consistently 2022See State v. Baxendale, 2016-NMCA-048, ¶ 11 , 370 12 P.3d 813 (citing State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 13 1134). 14 {18} However, in cases such as this, our Supreme Court has declined to apply the 15 doctrine of fundamental error to a defendant’s choice of whether to have the jury 16 instructed on lesser included offenses, and has “repeatedly . . . held that the defendant 17 cannot be heard to complain if the [district] court instructed the jury as he [or she] 18 desired.” State v. Boeglin, 1987-NMSC-002 , ¶ 10, 105 N.M. 247 , 731 P.2d 943 ; see 19 id. (“[New Mexi	2	4
State v. Benallygreen nm · 2001 · cited in 2 New Mexico opinions naming this issue, 2022–2022 2 sentences 2022See State v. Baxendale, 2016-NMCA-048, ¶ 11 , 370 12 P.3d 813 (citing State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 13 1134). 14 {18} However, in cases such as this, our Supreme Court has declined to apply the 15 doctrine of fundamental error to a defendant’s choice of whether to have the jury 16 instructed on lesser included offenses, and has “repeatedly . . . held that the defendant 17 cannot be heard to complain if the [district] court instructed the jury as he [or she] 18 desired.” State v. Boeglin, 1987-NMSC-002 , ¶ 10, 105 N.M. 247 , 731 P.2d 943 ; see 19 id. (“[New Mexi 2022See State v. Baxendale, 2016-NMCA-048, ¶ 11 , 370 12 P.3d 813 (citing State v. Benally, 2001-NMSC-033, ¶ 12 , 131 N.M. 258 , 34 P.3d 13 1134). 14 {18} However, in cases such as this, our Supreme Court has declined to apply the 15 doctrine of fundamental error to a defendant’s choice of whether to have the jury 16 instructed on lesser included offenses, and has “repeatedly . . . held that the defendant 17 cannot be heard to complain if the [district] court instructed the jury as he [or she] 18 desired.” State v. Boeglin, 1987-NMSC-002 , ¶ 10, 105 N.M. 247 , 731 P.2d 943 ; see 19 id. (“[New Mexi	2	2
State v. Ocongreen nmctapp · 2021 · cited in 1 New Mexico opinions naming this issue, 2021–2021 1 sentence 2021See State v. Ocon, 2021-NMCA-032, ¶ 7 , 493 P.3d 448 (noting that the first step of the fundamental error analysis is to determine whether an error occurred).	1	1
State v. Meadorsgreen nm · 1995 · cited in 1 New Mexico opinions naming this issue, 2021–2021 2 sentences 2021See State v. Foster, 1999-NMSC-007, ¶ 54 , 126 N.M. 646 , 974 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses,” and that appellate courts will not free defendants from the consequences of their choice to ask for, or decline to ask for, such an instruction), abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 ; State v. Boeglin, 1987-NMSC-002 , ¶ 15, 105 N.M. 247 , 731 P.2d 943 (“We hold that, consistent with th 2021See State v. Foster, 1999-NMSC-007, ¶ 54 , 126 N.M. 646 , 974 P.2d 140 (stating that “we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses,” and that appellate courts will not free defendants from the consequences of their choice to ask for, or decline to ask for, such an instruction), abrogated on other grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17 , 148 N.M. 381 , 237 P.3d 683 ; State v. Boeglin, 1987-NMSC-002 , ¶ 15, 105 N.M. 247 , 731 P.2d 943 (“We hold that, consistent with th	1	1
State v. Ocongreen nmctapp · 2021 · cited in 1 New Mexico opinions naming this issue, 2021–2021 1 sentence 2021See State v. Ocon, 2021-NMCA-032, ¶ 7 , 493 P.3d 448 (noting that the first step of the fundamental error analysis is to determine whether an error occurred).	1	1
State v. Archuletagreen nmctapp · 1989 · cited in 1 New Mexico opinions naming this issue, 2019–2019 2 sentences 2019See State v. Archuleta, 1989- NMCA-022, ¶ 5, 108 N.M. 397 , 772 P.2d 1320 (“We do not read Boeglin as holding that [the] defendant has a right to waive a lesser[-]included offense instruction but rather that he has the right to have a lesser[-]included offense instruction given where the evidence supports it.”). 2019See State v. Archuleta, 1989- NMCA-022, ¶ 5, 108 N.M. 397 , 772 P.2d 1320 (“We do not read Boeglin as holding that [the] defendant has a right to waive a lesser[-]included offense instruction but rather that he has the right to have a lesser[-]included offense instruction given where the evidence supports it.”).	1	1
O'KELLY v. Stategreen nm · 1980 · cited in 1 New Mexico opinions naming this issue, 1999–1999 2 sentences 1999While we have recognized an exception to this rule when a court fails to instruct a jury on an essential element of an offense that is factually at issue, see Osborne, 111 N.M. at 662-63 , 808 P.2d at 632-33 , we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses, see State v. Boeglin, 105 N.M. 247, 250-52 , 731 P.2d 943, 946-48 (1987). “[T]he defendant in a first degree murder prosecution may take his [or her] chances with the jury by waiving instructions on lesser included offenses and cannot be 1999While we have recognized an exception to this rule when a court fails to instruct a jury on an essential element of an offense that is factually at issue, see Osborne, 111 N.M. at 662-63 , 808 P.2d at 632-33 , we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses, see State v. Boeglin, 105 N.M. 247, 250-52 , 731 P.2d 943, 946-48 (1987). “[T]he defendant in a first degree murder prosecution may take his [or her] chances with the jury by waiving instructions on lesser included offenses and cannot be	1	1

Distinguished, questioned or overruled (0)

Case	Negative	Cited
No negative-treatment citations attached to this issue in New Mexico. Read the followed side critically anyway.

Also cited on this issue (2)

Case	Cited	Years
State v. Castrillo green nm · 1977 2 sentences 1999Unlike the record in Castrillo, 90 N.M. at 613 , 566 P.2d at 1151 , the record of Defendant’s first trial contains no ambiguity in the jurors’ statements that they could not reach a verdict on any of the charges. 1999Unlike the record in Castrillo, 90 N.M. at 613 , 566 P.2d at 1151 , the record of Defendant’s first trial contains no ambiguity in the jurors’ statements that they could not reach a verdict on any of the charges.	1	1999–1999
State v. Osborne green nm · 1991 2 sentences 1999While we have recognized an exception to this rule when a court fails to instruct a jury on an essential element of an offense that is factually at issue, see Osborne, 111 N.M. at 662-63 , 808 P.2d at 632-33 , we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses, see State v. Boeglin, 105 N.M. 247, 250-52 , 731 P.2d 943, 946-48 (1987). “[T]he defendant in a first degree murder prosecution may take his [or her] chances with the jury by waiving instructions on lesser included offenses and cannot be 1999While we have recognized an exception to this rule when a court fails to instruct a jury on an essential element of an offense that is factually at issue, see Osborne, 111 N.M. at 662-63 , 808 P.2d at 632-33 , we have declined to apply the doctrine of fundamental error to a defendant’s choice of whether to have the jury instructed on lesser included offenses, see State v. Boeglin, 105 N.M. 247, 250-52 , 731 P.2d 943, 946-48 (1987). “[T]he defendant in a first degree murder prosecution may take his [or her] chances with the jury by waiving instructions on lesser included offenses and cannot be	1	1999–1999

Statutes the citing opinions construe

NM § N.M. Stat. § 30-2-1 (4) NM § N.M. Stat. § 30-22-1 (4)

Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.

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