Precedents and Authorities Cited

• State v. Salazar, 1997-NMSC-044: Propriety of jury instructions is a mixed question of law and fact, reviewed de novo.
• State v. Benally, 2001-NMSC-033: Preserved errors are reviewed for reversible error; unpreserved for fundamental error.
• State v. Romero, 2023-NMSC-014: Two-step fundamental error inquiry—first identify error, then assess whether it was fundamental.
• State v. Boeglin, 1987-NMSC-002: Defendants bear the tactical responsibility to request lesser-included homicide instructions; absent a request, they cannot later complain that the court did not give them.
• State v. Taylor, 2024-NMSC-011: Addresses juror unanimity concerns and the use of disjunctive alternatives; does not condemn “and/or” per se where each alternative is legally valid and supported by the evidence.
• State v. Adamo, 2018-NMCA-013: If there is no reversible error, there can be no fundamental error in instructions.
• State v. Turrietta, 2013-NMSC-036; Elane Photography, LLC v. Willock, 2013-NMSC-040: Structural error requires developed argument; appellate courts will not guess at undeveloped claims.
• Pattern instructions: UJI 14-202 (felony murder—express causation element); UJI 14-212 (second-degree murder); UJI 14-2821 (aiding and abetting—drafted in the singular).
• Companion authority: State v. Goldman, S-1-SC-40100 (June 30, 2025) (nonprecedential): Addressed the same instruction issues arising from the same incident; analysis adopted here by reference.

Legal Reasoning and Application

A. The court’s “yes” to the jury’s question about convicting of both felony murder and second-degree murder

Almentero challenged the trial court’s affirmative answer to a juror query asking whether the jury could return both felony-murder and second-degree murder convictions. The Supreme Court, adopting its analysis in the companion Goldman decision, held the response accurately reflected the law as framed by the instructions given in this case. Although the decision does not recite the full text of the jury question or every instruction, the Court signals that, read in context with the charges and instructions provided, the jury could permissibly return the convictions described in its question. Accordingly, there was no misstatement of law and no reversible error.

Key point: Appellate assessment of a jury-question response is tethered to the instructions and charges as a whole. When the court’s response conforms to the law as the jury has been instructed, it is not erroneous—even if, in the abstract, “both” convictions might raise concerns in other configurations (e.g., double punishment for a single killing). The Court’s reliance on Goldman underscores the importance of context and the integrated reading of the entire charge.

B. No second-degree lesser-included instruction was required to capture causation for felony murder

Almentero argued that the absence of UJI 14-212 (second-degree murder) as a lesser-included offense of felony murder deprived the jury of a necessary causation element. The Court rejected this for two independent reasons:

• No request, no error (Boeglin): It is the defendant’s tactical responsibility to request lesser-included homicide instructions supported by the evidence; failure to request forecloses a later complaint that the court did not give them. The Court reaffirmed this longstanding allocation of responsibility.
• Causation already embedded in UJI 14-202: The felony-murder instruction expressly required the jury to find that “the defendant caused the death … during the commission” of the predicate felony. Because causation was already an element in the felony-murder instruction, a second-degree instruction was unnecessary to supply it. On this ground, there was no instructional error at all, which necessarily precludes a finding of fundamental error (Adamo).

Practical takeaway: Where UJI 14-202 is properly given, its causation requirement stands on its own; courts need not append second-degree instructions simply to reinforce causation. Defendants who want second-degree considered as a lesser alternative must affirmatively request it and show evidentiary support.

C. “And/or” alternatives for predicate felonies did not create reversible or fundamental error

Almentero challenged the use of “and/or” in the felony-murder and aiding-and-abetting instructions to identify the predicate felonies (kidnapping and armed robbery), invoking State v. Taylor to argue that the verdict could rest on an unknown or impermissible ground. The Supreme Court, adopting Goldman’s analysis, rejected the challenge. Taylor does not categorically prohibit disjunctive phrasing; rather, it guards against nonunanimous or legally invalid grounds where the alternatives differ in legal validity or evidentiary support.

Here, the Court accepted that the alternatives presented—kidnapping and armed robbery—were both legally valid felony-murder predicates and supported by the evidence. In that posture, the “and/or” phrasing did not misdirect the jury, undercut unanimity, or render the verdicts unreliable. Thus, there was no error—let alone fundamental error.

Practice note: If a party believes an alternative lack evidentiary support or legal validity, they should seek to strike it, request a unanimity instruction tailored to the alternatives, or request special interrogatories. Absent such preservation—and where both alternatives are valid and supported—“and/or” will not, by itself, undo a conviction.

D. A single aiding-and-abetting instruction referring to both victims was not erroneous

The defendant also argued that the accessory-liability instruction was confusing because it was drafted in the singular (UJI 14-2821) but given in a form that referred to both decedents (Romero and Lateef) in the same instruction (“Romero and/or Lateef”). The Court again adopted Goldman’s analysis to conclude there was no error: read together with the felony-murder instructions and verdict forms, the single instruction did not risk convicting the defendant for one victim’s killing based on aiding and abetting the other’s. There was no demonstrable juror confusion or misdirection.

Best practice: While the Court found no error here, trial courts can avoid similar challenges by issuing separate aiding-and-abetting instructions for each victim or count, mapping each to the relevant predicate felony and decedent to ensure maximal clarity.

E. Structural error argument deemed undeveloped

To the extent the defendant gestured at “structural error,” the Court declined to reach it, citing State v. Turrietta and Elane Photography for the principle that courts do not evaluate undeveloped contentions or guess at their contours. This highlights the importance of developing structure-based arguments with specific authority and analysis.

Impact and Implications

Although nonprecedential, Almentero—paired with Goldman—signals the Court’s current approach to several recurring issues in homicide trials involving multiple victims and felony predicates:

• Reliance on pattern instructions: UJI 14-202’s causation element is sufficient; courts need not append second-degree merely to reinforce causation. This can streamline charges in felony-murder cases.
• Preservation matters: Defendants must timely request lesser-included instructions and record supporting evidence. Boeglin remains robust; tactical silence at trial forecloses appellate relief on omitted lessers.
• “And/or” is not per se invalid: When each alternative predicate is legally valid and supported by evidence, disjunctive phrasing does not automatically produce Taylor problems. Unanimity or special-verdict tailoring becomes essential only where legal validity or evidentiary sufficiency differs materially across alternatives.
• Multi-victim accessory instructions can pass muster: A single aiding-and-abetting charge referencing multiple victims is not inherently confusing if the jury instructions and verdict forms, read as a whole, cabin the jury’s task and link findings to each victim.
• Jury questions must be answered within the instructional framework: Trial judges should answer juror questions by reference to the instructions as given. Appellate courts will review those answers in context, not in isolation.

Looking ahead, litigants should expect the Court to: (a) demand preservation on lesser-included requests; (b) tolerate “and/or” where alternatives are valid and proven; and (c) analyze alleged instruction confusion holistically across the entire charge and verdict structure. Counsel aiming to challenge such instructions should build a record with pinpoint objections, alternative drafts, and proposed unanimity instructions or special verdicts.