State v. Benally

BACA, Justice, dissenting.

{24} I respectfully dissent. I find no fundamental error in this case and would affirm the Defendant’s convictions for second degree murder and tampering with evidence. My disagreement with the Court’s holding is predicated on the majority’s finding of fundamental error based entirely upon a focused analysis of the jury instructions. The doctrine of fundamental error “is bottomed upon the innocence of the accused or a corruption of actual justice.” State v. Sanchez, 58 N.M. 77, 84 , 265 P.2d 684, 688 (1954). Hence, this Court’s obligation does not rest on resolving the narrow issue of whether there exists error in the jury instructions. Rather, the court must focus on the broader issue of whether the Defendant’s conviction for second degree murder “ ‘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 (quoting State v. Baca, 1997-NMSC-045, ¶ 41 , 124 N.M. 55 , 946 P.2d 1066 ). To properly resolve this issue, the Court is obliged to review the entire record, placing the jury instructions in the context of the individual facts and circumstances of the case, to determine whether the Defendant’s conviction was the result of a plain miscarriage of justice. See State v. Osborne, 111 N.M. 654, 662 , 808 P.2d 624, 632 (1991) (reaffirming that the doctrine of fundamental error applies only under exceptional circumstances in order to prevent a miscarriage of justice). Upon a complete and thorough review of the record before us, it is clear that the evidence presented to the jury in this case leaves little dispute that the Defendant killed the victim without any legal justification. Therefore, any deficiency that can be found in the self-defense instructions, when analyzed in the context of the facts of this case, does not constitute fundamental error. Accordingly, the Defendant’s convictions should be affirmed.

I.

{25} There exist two distinct but interrelated aspects to a true fundamental error analysis. The first aspect, which could be characterized as the procedural prong of fundamental error, provides an exception to the preservation requirement. See Rule 12-216(B)(2) NMRA 2001 (“This [preservation] rule shall not preclude the appellate court from considering ... questions involving: ... fundamental error or fundamental rights of a party.”). The second, or substantive aspect of fundamental error, provides the standard of review under which the issues claimed by the defendant are analyzed on appeal. In essence, it is the lens through which the Court reviews unpreserved error. See, e.g., Cunningham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 (“Parties alleging fundamental error must 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.”). To provide a foundation, I will discuss these two aspects of fundamental error analysis in turn so that I may better illuminate my disagreement with the majority’s opinion.

A.

{26} The threshold question in any case on appeal is whether the claimed errors were properly preserved below. Rule 12-216, which defines the scope of appellate review, states: “To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked.” With respect to jury instructions, a ruling or decision by the district court may be fairly invoked by either a formal objection to the instruction that is to be given to the jury by the court, or by tendering a correct instruction. See, e.g., State v. Compton, 57 N.M. 227, 236 , 257 P.2d 915, 921 (1953) (“[W]here the court has not instructed on the subject it is sufficient to preserve the error if a correct instruction is tendered.”). “The primary purpose of any objection to an instruction is, of course, to alert the mind of the judge to the claimed error contained in it, to the end that he may correct it.” Id. Hence, “[t]imely objections to improper instructions must be made or error, if any, will be regarded as waived in every case.” State v. Garcia, 46 N.M. 302, 307 , 128 P.2d 459, 462 (1942).

{27} Although New Mexico courts generally adhere to the preservation requirement, Rule 12-216(B) provides exceptions that allow appellate review despite a party’s failure to preserve error. Rule 12-216(B)(2) provides: “This rule shall not preclude the appellate court from considering ... questions involving: ... fundamental error or fundamental rights of a party.” This doctrine of fundamental error is founded on every court’s “inherent power to see that a man’s fundamental rights are protected in every case.” State v. Garcia, 19 N.M. 414, 421 , 143 P. 1012, 1014 (1914).

Where a man’s fundamental rights have been violated, while he may be precluded by the terms of a statute or the rules of appellate procedure from insisting in this court upon relief from the same, this court has the power, in its discretion, to relieve him and to see that injustice is not done. The restrictions of the statute apply to the parties, not to this court.

Id. at 421 , 143 P. at 1015 . The Court, however, “will exercise this discretion very guardedly, and only where some fundamental right has been invaded, and never in aid of strictly legal, technical, or unsubstantial claims.” Id. Accordingly, fundamental error will only apply in exceptional circumstances. Cunningham, 2000-NMSC-009, ¶ 13 , 128 N.M. 711 , 998 P.2d 176 . Thus, the doctrine of fundamental error is more than a mere exception to the preservation requirement. It also provides the standard under which the issues claimed by the Defendant for the first time on appeal are reviewed. Therefore, review for fundamental error contains both procedural and substantive significance.

B.

{28} The fundamental flaw in the majority’s analysis in this case is that it depicts fundamental error as merely an exception to the preservation requirement and utterly ignores the doctrine’s substantive force. The majority, concluding that the Defendant did not properly preserve the claimed errors below, holds that “the omission of unlawfulness from instruction 12 constituted fundamental error.” Majority Opinion at ¶ 11. Moreover, the majority finds that “because of its distance from the erroneous elements instruction and the unlikelihood that the jury would, sua sponte, graft language from a proper instruction onto improper instructions, the single proper instruction did not correct the improper self-defense instruction.” Majority Opinion at ¶ 1. Hence, the majority reverses the Defendant’s conviction for second degree murder by extricating the jury instructions from the context of the individual facts and circumstances of the case and reviews the instructions for facial errors. Such a technical and formalistic approach does not constitute review for fundamental error. See Cunningham, 2000-NMSC-009, ¶ 12 , 128 N.M. 711 , 998 P.2d 176 (recognizing that the doctrine of fundamental error is never used to aid “strictly legal, technical, or unsubstantial claims”). Instead, by limiting its analysis to' an isolated review of the jury instructions, the majority in effect reviews this case for reversible error rather than for fundamental error.

{29} Fundamental error and reversible error are two distinct standards of review that have significantly different focuses and arise in different procedural circumstances. First, the procedural distinction between these two standards is apparent since review for reversible error arises when a Defendant preserves error below. This procedural distinction is significant because it shapes the Court’s review on appeal and defines the scope of the Court’s substantive analysis. For instance, where the defendant properly preserves an issue in the trial court, the appellate court is aware of where to focus its review on appeal. In contrast, where there is no specific preservation of error — in fact, where the defendant has waived all error— the court’s focus on appeal is less articulate. As a result, the scope of the substantive review, when error is not preserved, is somewhat broader. I will illustrate these concepts below.

1.

{30} First, an example of review for reversible error is provided in State v. Parish, 118 N.M. 39 , 878 P.2d 988 (1994). In Parish, the defendant, who was convicted of voluntary manslaughter, appealed his conviction on the basis of errors in the jury instructions. Id. at.41, 878 P.2d at 990 . The defendant claimed that the trial court failed to “instruct the jury that they must decide whether the killing was unlawful when a claim of self-defense-is raised” and that “the instructions failed to explicitly place the burden upon the State to prove that Defendant did not act in self-defense.” Id. The Court reviewed the claimed errors under a reversible error standard of review since the defendant objected at trial to the jury instructions and offered other instructions that were refused. See id. at 42 , 878 P.2d at 991 ; see also Cunningham, 2000-NMSC-009, ¶16 , 128 N.M; 711, 998 P.2d 176 (recognizing that “Parish properly analyzed the jury instructions under a reversible error standard because the defendant in Parish not only objected to the proffered instructions, he also offered his own correct instructions”). Since the defendant alerted the court’s attention to the errors in the jury instructions by objecting at trial, this Court focused its entire analysis on the claimed errors in the jury instructions.

{31} Therefore, under a reversible error standard, it is clear that the appellate court’s substantive analysis is focused on the error preserved in the trial court — namely, the claimed error in the jury instructions. In determining whether the error claimed rises to the level of reversible error, the appellate court “will accept the slightest evidence of prejudice, and all doubt will be resolved in favor of the party claiming prejudice.” State v. Traxler, 91 N.M. 266, 268 , 572 P.2d 1274, 1276 (Ct.App.1977). To determine whether there is any evidence of prejudice, the appellate court will look to the jury instructions as a whole and assess whether “a reasonable juror would have been confused or misdirected” by the instructions. Parish, 118 N.M. at 42 , 878 P.2d at 991 . Accordingly, the focus in a reversible error analysis is placed entirely on the jury instructions.

2.

{32} The analysis under a fundamental error standard, however, is decidedly different than the analysis under a reversible error standard. See Cunningham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 .

The main analytical distinction between a fundamental error analysis and a reversible error analysis is the level of scrutiny afforded to claims of error. Parties alleging fundamental error must 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. Parties who have properly preserved an alleged error for appeal are afforded a much less onerous level of scrutiny under a reversible error standard as provided in Parish.

Id. (citations omitted). To claim that the analysis under fundamental error and reversible error is the same except that the Court invokes a fundamental error review when the error is not preserved “would eliminate the preservation of error requirement of our appellate jurisprudence” and “compromise the intent embodied in Rule 12-216.” Id. at ¶ 18. Therefore, review under fundamental error is substantively different.

{33} In a fundamental error analysis, where the defendant has waived all error by failing to object, the Court’s goal is to search for injustice. See State v. Orosco, 113 N.M. 780, 784 , 833 P.2d 1146, 1150 (1992). “The rule of fundamental error applies only if there has been a miscarriage of justice, if the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or if substantial justice has not been done.” Id. Thus, the doctrine provides this Court with the flexibility to review even unpreserved error to ensure that the interests of justice are served. The Court’s focus in such a review, therefore, is not whether there is error in the jury instructions per se, but whether the defendant was wrongly convicted or suffered such an injustice that this court should not allow the conviction to stand. “To establish fundamental error, there must be a showing that error was of such magnitude that it affected the trial outcome.” State v. Jacobs, 2000-NMSC-026 , ¶ 58, 129 N.M. 448 , 10 P.3d 127 . Accordingly, we need to consider the individual facts and circumstances of the ease to fulfill our role as the final arbiter of justice in the criminal justice system. This is not a limited inquiry as the majority’s analysis suggests, but an exceedingly broad inquiry.

II.

{34} In the following section I analyze the present case pursuant to what I understand to be a true fundamental error analysis.

A.

{35} The primary question with respect to any case on appeal is whether the issues and errors presented were properly preserved. Upon review of the record, I find that the Defendant failed to properly preserve any of the claimed errors on which he seeks appellate review. First, at no time during trial did the Defendant object to the omission of unlawfulness from any of the essential elements instructions or alert the court’s attention to the ambiguous statement regarding the State’s burden of proof in Instruction 15. In fact, not only did the Defendant fail to object to these now claimed errors, but he also tendered essential elements instructions which omitted the element of unlawfulness as well as proposed several self-defense instructions which included the ambiguous burden of proof statement of which the Defendant now complains. “Ordinarily a defendant may not base a claim of error on instructions he or she requested or to which he or she made no objection.” State v. Varela, 1999-NMSC-045 , ¶ 11, 128 N.M. 454 , 993 P.2d 1280 . “The defendant having failed to comply with the [preservation] Rule is not now in a position to complain that the court erred in the instruction[s] given.” State v. Sena, 54 N.M. 213, 217 , 219 P.2d 287, 289 (1950). Therefore, these errors were not properly preserved.

{36} Further, I also do not find that the Defendant’s claimed error regarding the trial court’s omission of UJI 14-5171 NMRA 2001 from the final jury instructions was properly preserved. Of course, I acknowledge that the Defendant tendered an instruction based on UJI 14-5171, which read:

Evidence has been presented that the Defendant killed Marco LaPlante while defending himself.

The killing is in self-defense if:

1. There was an appearance of immediate danger of death or great bodily harm to the defendant as a result of the victim coming his direction with a deadly weapon;

2. The Defendant was in fact put in fear by the apparent danger of immediate death or great bodily harm and killed Marco LaPlante because of that fear; and

3. A reasonable person in the same circumstances as the Defendant would have acted as the Defendant did.

In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to Defendant’s guilt, you must find him not guilty.

(Emphasis added.). The district court agreed to instruct the jury on justifiable homicide pursuant to the Defendant’s tendered instruction and to place the instruction after the first and second degree murder instructions. For this reason, the Defendant argues that this Court should review this error pursuant to a reversible error standard of review. See, e.g., Cunningham, 2000-NMSC-009, ¶ 21 , 128 N.M. 711 , 998 P.2d 176 (“Parties who have properly preserved an alleged error for appeal are afforded a much less onerous level of scrutiny under a reversible error standard as provided in Parish”). Here, however, it is not that the district court failed to instruct on the subject of self-defense; rather the court, through inadvertence, gave the jury two self-defense instructions pursuant to UJI 14-5183 NMRA 2001. Thereby, the court mistakenly omitted UJI 14-5171.

{37} The court’s mistake was apparent when the judge verbally instructed the jury at the close of the evidence. The judge read to the jury Instruction 15 as it appeared in the final jury instruction packet.

Evidence has been presented that the Defendant acted while defending himself.

The Defendant acted in self-defense if:

1. There was an appearance of immediate danger of death or great bodily harm to the Defendant as a result of being attacked with a deadly weapon by Marco LaPlante; and

2. The Defendant was in fact put in fear, by the apparent danger of immediate death or great bodily harm and struck Marco LaPlante because of that fear; and

3. The apparent danger would have caused a reasonable person in the same circumstances to act as the Defendant did.

In considering this defense, and after considering all the evidence in the case, if you have a reasonable doubt as to the Defendant’s guilt, you must find him not guilty.

(Emphasis added.). Despite the court’s obvious oversight, the Defendant failed to alert the judge of this mistake:

[W]here the court has instructed erroneously on the subject, although a correct instruction has been tendered on the point, if it leaves it doubtftd whether the trial judge’s mind was actually alerted thereby to the defect sought to be corrected by the requested instruction, the error is not preserved unless, in addition, the specific vice in the instruction given is pointed out to the trial court by proper objection.

State v. Henderson, 81 N.M. 270, 271 , 466 P.2d 116, 117 (Ct.App.1970). Therefore, although the Defendant tendered UJI 14-5171, which the trial court accepted, he cannot “properly remain silent knowing that the court, in covering ... its instructions, has overlooked or inadvertently omitted an essential element.” Id. Under these circumstances, the court was not alerted to its inadvertence and therefore the claimed error was not properly preserved. Accordingly, because the Defendant failed to preserve the errors now claimed he “will be regarded as having waived the objection, and cannot [now] complain of the court’s failure or refusal to give a proper instruction, or of an improper or inaccurate instruction which it has given.” Garcia, 46 N.M. at 308 , 128 P.2d at 462 .

B.

{38} As discussed above, even if the Defendant fails to preserve, the Court may exercise its discretion to review for fundamental error. The initial question this Court must ask itself in a fundamental error analysis is whether the Defendant was wrongly convicted or suffered such injustice that this Court should not allow the conviction to stand. To determine whether the Defendant’s conviction shocks the judicial conscience, the focus must preliminarily be directed at the conviction and the elements of the crime upon which the jury found the defendant guilty. “If there is substantial evidence ... to support the verdict of the jury, we will not resort to fundamental error.” State v. Rodriguez, 81 N.M. 503, 505 , 469 P.2d 148, 150 (1970); see State v. Sisneros, 79 N.M. 600, 606 , 446 P.2d 875, 881 (1968) (holding that because there was ample evidence to support the conviction, whatever errors may have been committed failed to constitute a basis for finding fundamental error). Because I find substantial evidence in the record to show that the Defendant killed the victim without legal justification, and since the Defendant failed to demonstrate any circumstances that would “shock the conscience” or show a fundamental unfairness, I would hold that fundamental error did not occur in this case.

1.

{39} Here, the Defendant was convicted of second degree murder. Second degree murder is defined in NMSA 1978, § 30-2-l(B) (1994):

Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.

Accordingly, in the present case, the jury was given Instruction 12 that advised:

For you to find the defendant guilty of second degree murder, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime.

The defendant killed Marco La Plante;

The defendant knew that his acts created a strong probability of death or great bodily harm to Marco La Plant;

The defendant did not act as a result of sufficient provocation;

This happened in New Mexico on or about 7th day of July, 1997.

See UJI 14-210 NMRA 2001. The Defendant’s primary contention is that this instruction was erroneous because, as indicated in Section 30-2-l(B), unlawfulness is an essential element of second degree murder, yet it was omitted from Instruction 12.

{40} Of course, as defined in Section 30-2-1(B), unlawfulness is an element of second degree murder. However, “it is presumed that any killing of another is unlawful unless that killing is justified or excused.” Cunningham, 2000-NMSC-009, ¶9 , 128 N.M. 711 , 998 P.2d 176 ; State v. Noble, 90 N.M. 360, 364 , 563 P.2d 1153, 1157 (1977). It is the Defendant’s burden to rebut this presumption of unlawfulness by producing some evidence, even slight evidence, to support the claim that the killing is justified. State v. Duarte, 1996-NMSC-038 , ¶ 8, 121 N.M. 553 , 915 P.2d 309 .

{41} “It is well-settled that ‘[s]elf-defense [or defense of another] is a justification to all homicides and results in acquittal rather than mitigation.’ ” State v. Gallegos, 2001-NMCA-021, ¶ 9 , 130 N.M. 221 , 22 P.3d 689 (quoting State v. Abeyta, 120 N.M. 233, 239 , 901 P.2d 164, 170 (1995), abrogated on other grounds by State v. Campos, 1996-NMSC-043 , ¶ 32 n. 4, 122 N.M. 148 , 921 P.2d 1266 ). To support an instruction on self-defense, the Defendant must have presented some evidence that: “ ‘[ (1) ] the defendant was put in fear by an apparent danger of immediate death or great bodily harm[;] [ (2) ] that the killing resulted from that fear[;] and [(3)] that the defendant acted as a reasonable person would act under those circumstances.’ ” State v. Lopez, 2000-NMSC-003, ¶ 23 , 128 N.M. 410 , 993 P.2d 727 (quoting State v. Branchal, 101 N.M. 498, 500 , 684 P.2d 1163, 1165 (Ct.App.1984)). Therefore, an instruction on self-defense should be given if the Defendant produces evidence “ ‘sufficient to allow reasonable minds to differ as to all elements of the defense.’ ” Id. (emphasis added). Once the Defendant presents such evidence as to each element of self-defense, it is the court’s duty “ ‘to instruct the jury fully and clearly on all phases of the law on [that] issue.’” Id. (quoting State v. Heisler, 58 N.M. 446, 455 , 272 P.2d 660, 666 (1954)).

{42} In the present case, the Defendant failed to introduce sufficient evidence to allow reasonable minds to differ as to all the elements of self-defense. During trial the Defendant testified that he was placed in fear when the victim approached him with what appeared to be a gun. As a result of this fear, the Defendant struck the victim in the head or shoulder with a whiskey bottle, at which point the victim dropped the weapon and he and the Defendant fell to the ground and began fighting. While on the ground, the victim was on top of the Defendant and six to seven other individuals began kicking the victim in the head and back. Defendant stated that when he got up from the ground he stood above the victim, and along with five to seven other individuals, continued to kick him. On direct examination, the Defendant testified:

Q: Then what happened?

A: Then they pull him off me a few feet and that’s when I get up.

Q: What were you feeling at that point? How were you feeling?

A: I was mad.

Q: Why were you mad?

A: I was just mad ...

Q: So, Lathan, at that point were you able to get up?

A: Excuse me?

Q: Were you able to get up?

A: Um, yeah.

Q: Do you recall anyone helping you?

A: No, I don’t.

Q: Ok. Now did you see what had happened to Marco LaPlante before you got up?

A: No.

Q: So, so what did you do then Lathan?

A: I kicked him.

Q: Ok, describe that ... describe how you got up ...

A: I got up using my hands and getting up and running, kicking him.

Q: Do you know where you kicked him?

A: No, I can’t really say where I kicked him.

Q: Why?

A: I know I kicked him.

Q: Why can’t you say where you kicked him, you can’t remember or what ...

A: I know I kicked him, but I can’t, I don’t know the actual, the actual points where I was planning to kick. I just was kicking him.

Q: Ok, was it because you were just real mad.

A: Yes.

Q: Ok, did you, could you have kicked him in the head?

A: I could have.

According to the Defendant, therefore, after the victim was no longer a threat, after the victim was on the ground being kicked by five to seven other individuals, the Defendant stood up and, as stated in the Defendant’s Brief in Chief, “angrily started kicking La-Plant.” (Emphasis added.).

{43} Even under the defense’s theory of the case, the Defendant was not entitled to a self-defense instruction. The Defendant failed to present any evidence to show that the killing of the victim resulted from the Defendant’s initial fear or that the Defendant acted as a reasonable person would act under the same circumstances. Instead, the Defendant’s right to use force ended when the danger ceased and the victim was disabled and on the ground being repeatedly kicked by the Defendant. See, e.g., State v. Garcia, 83 N.M. 51, 54 , 487 P.2d 1356, 1359 (Ct.App.-1971). Therefore, there was insufficient evidence to allow reasonable minds to differ on the second and third elements of self-defense. As such, although the Defendant may have been entitled to a self-defense instruction as a justification to the initial aggravated battery — when the Defendant struck the victim with the whiskey bottle — the Defendant failed to introduce any evidence that showed that the killing of the victim resulted from the Defendant’s exercise of self-defense. Therefore, the evidence at trial was not sufficient to require submission of instructions to the jury on self-defense as to any of the homicide charges.

{44} Moreover, the extent of the victim’s injuries is not indicative of the Defendant fearing for his life and acting out of self-defense. Patricia McFeely, a forensic pathologist for the Office of the Medical Investigator for the State of New Mexico, performed an autopsy on the victim’s body. Dr. McFeely testified that the victim died four days after the incident from a Combination of fatal head injuries. There was subdural bleeding on the left side of the brain and areas of bruising or contusions on the brain on both the right and left side. As a result, there was a lot of swelling to the victim’s brain. The doctor testified that the areas of bruising on the brain were indicators of a substantial amount of force.

{45} In addition to the significant injuries to his brain, the victim also sustained smaller, less significant injuries on his arms, around his head, right eye, and right eyelid, extending down the right side of his face. Also, there were abrasions over his collarbone, right back and shoulder, on his left upper arm, back of his left lower arm, and on his knuckle. Internally, inside his stomach, there were areas of about four by three inches of soft tissue hemorrhage, which would indicate substantial blows to the abdomen. The injuries sustained by the victim were “extremely brutal and unnecessary blows by the defendant not consistent with self-defense.” State v. Martinez, 95 N.M. 421, 423 , 622 P.2d 1041, 1043 (1981); see, e.g., Lopez, 2000-NMSC-003, ¶¶ 25-26 , 128 N.M. 410 , 993 P.2d 727 (holding that although the victim was the initial aggressor, the defendant was not entitled to a self-defense instruction when the evidence showed that the defendant inflicted fifty-four stab wounds upon the victim and crushed his head with a rock).

{46} Consequently, “the facts in evidence did not warrant submitting the issue of self-defense.” State v. Heisler, 58 N.M. 446, 452 , 272 P.2d 660, 664 (1954). “Hence, in so far as the jury was instructed at all on that subject, the defendant got more than he was entitled to on the evidence and error, if any, in the instructions so given may not be made the basis of a reversal.” Id.; see also State v. Livernois, 1997-NMSC-019, ¶ 15 , 123 N.M. 128 , 934 P.2d 1057 (holding that where there is sufficient evidence for the jury to conclude that the defendant killed the victim with the requisite intent, any deficiency in the jury instructions is inconsequential).

III.

{47} Despite the broad nature of fundamental error review, the majority reverses the Defendant’s conviction for second degree murder by taking the jury instructions out of context and analyzing the claimed error in isolation. The notion that in a fundamental error analysis we should look solely to the jury instructions ignores the entire foundation upon which the doctrine of fundamental error is built and confuses a reversible error standard for a fundamental error standard. It is simply inconsistent to assert that under this broad doctrine, where we go in search of injustice, that we should be limited to looking only at the jury instructions. In deciding this case, as well as others like it, it is necessary to look far beyond the jury instructions at issue; we need to consider the individual facts and circumstances of the case and contemplate our role as the final arbiter in the criminal justice system. This is not a limited inquiry. To assert otherwise, as the majority opinion does, ignores the basic precepts of the doctrine of fundamental error. Upon my review of the individual facts and circumstances of this case, I find substantial evidence in the record to show that the Defendant killed the victim without any legal justification. Since the Defendant failed to demonstrate any circumstances that would shock the conscience or show a fundamental unfairness, I find no fundamental error. For these reasons, I respectfully dissent.