Andujar-Ruiz v. State

Because I cannot conclude that the trial court’s instruction on Andujar-Ruiz’s duty to retreat constituted fundamental error under these facts, I must respectfully dissent.

The majority asserts that the instructions constitute fundamental error because they deprived Andujar-Ruiz of his sole defense at trial. In my view, a complete fundamental error analysis leads to the conclusion that the jury instructions did not constitute fundamental error in this case. “Where the challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only…