dissenting:
I respectfully dissent. I agree with the majority’s result concerning the instruction on negligent homicide, the admissibility of the victim’s hearsay statements, the trial court’s limitation of impeachment of the defendant’s girlfriend, and the court’s position on the selection of an alternate juror.
I depart, however, from the majority concerning its analysis and result on the self-defense instruction using language which was specifically and clearly repudiated in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984). Hunter decided that this instruction was unacceptable five years ago. It is unacceptable now.
The instruction in Hunter was:
If you decide the defendant’s conduct was justified, you must find the defendant not guilty.
Id. at 89, 688 P.2d at 981.
When instructing the jury on the issue of justification in this case, the court said:
Twenty; in this case the Defendant, Robert Ruelas, has raised the defense of justification, claiming that he acted in self-defense.
If you decide that the Defendant’s conduct in stabbing Eugene Parker was justified, you must find the Defendant not guilty of the crime charged.
*333The remainder of instruction twenty set forth the legal elements required in a justification instruction.2
The “Hunter” language has been condemned not only because it is an incorrect statement of the law, but also because it creates a “risk that the jury would believe that the accused had the burden to prove justification.” State v. Cannon, 157 Ariz. 107, 107, 755 P.2d 412, 412 (1988) (emphasis added).3
The instruction which the majority believes solves the issue is:
Twenty-three; the State’s burden to prove beyond a reasonable doubt that the Defendant committed the crime goes to the whole case, including a plea or justification based on self-defense.
I do not quarrel with this instruction. However, it does not solve the vice condemned in Hunter.
The thrust of the majority’s reasoning is simple. Since the correct instruction, they say, was given defining how the state’s burden of proof was to be applied, the condemned “Hunter ” language couldn’t possibly influence erroneous application of the law.
The majority must concede that the giving of the instruction containing the Hunter language was error. The question is whether this error was fundamental.
As a general proposition, giving erroneous jury instructions defining burden of proof is considered fundamental error. State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988); State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984) (quoting State v. Denny, 119 Ariz. 131, 134, 579 P.2d 1101, 1104 (1978)). See also State v. Tittle, 147 Ariz. 339, 342, 710 P.2d 449, 452 (1985) (similar holding on justification instruction); State v. Renforth, 155 Ariz. 385, 388, 746 P.2d 1315, 1318 (App.1987) (insanity defense). One of the basic reasons for this general proposition was stated in King:
At best, taken as a whole, the instructions were confusing and misleading. Long ago we stated,
It is the duty of the court to give the jury the rules of law to guide their deliberations and determinations, and these rules must not be at such cross purposes as to confuse and mislead the jury. If the instructions are contradictory upon the main point in question, how is the jury to know which to follow, or which is a correct statement of the law?
King, 158 Ariz. at 425-26, 763 P.2d at 245-46 (quoting Hurley v. State, 22 Ariz. 211, 222, 196 P. 159, 163 (1921)).
Like it or not, a reading of the instructions dealing with self-defense (twenty and twenty-three) can easily present a clear risk of confusion. When a layman, unfamiliar with the vagaries of burden of proof, reads one instruction he could easily conclude that the defendant must show facts *334sufficient to convince the jury that the defendant’s acts were justified. Then, upon reading instruction twenty-three, he could easily wonder what facts were really necessary to either convict or acquit on the basis of self-defense. Could a juror here easily say which instruction should be followed? My belief has always been that jurors need instructions which are clear in content and devoid of “legalese.” Any set of instructions which lends itself to confusion defeats the purpose of giving them. In State v. Denny, 119 Ariz. 131, 579 P.2d 1101 (1978), the importance of clear instructions in a criminal jury trial was stressed in these words:
The very purpose of a jury charge is to flag the jurors’ attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. Lakeside v. Oregon, 435 U.S. 333, 340, 98 S.Ct. 1091, 1095, 55 L.Ed.2d 319 (1978). It is vital that the jury not misunderstand the concept of the defendant’s burden of proof on self-defense; the jury must be instructed with great care to prevent the misunderstanding of this concept.
Id. at 134, 579 P.2d at 1104.
Does not burden of proof require, especially in a criminal jury trial, a clear definition? If so, does the giving of a repudiated instruction which runs the risk of confusing a jury on such a central issue become fundamental error? I think so. Facts upon which a central defense rests are more often than not in sharp dispute. To resolve such a dispute on a material issue, the instructions should be clear and unambiguous.
Finally, under the majority’s reasoning, one may continue to use the repudiated language found in Hunter. All that needs to be done is to provide a correct statement and place it somewhere in the instructions to the jury. There were twenty-eight separate instructions in this case. Interestingly, the jury still had questions concerning law and facts!
Simply giving a correct statement of the law on a central issue does not correct the vice of also giving a repudiated erroneous one. Reading them together, as we must, results in the gravest of errors — lack of clear direction. The error was fundamental, and I would reverse.
. A Defendant is justified in using physical force in self-defense if the following two conditions exist: One; a reasonable person in the Defendant’s situation would have believed that physical force was immediately necessary to protect against its use or another’s attempted use of physical force.
And two; and I’m sorry. A reasonable person in the Defendant’s situation would have believed that physical force was immediately necessary to protect against its use or attempted use of physical force.
And two; the Defendant used no more physical force than would have appeared necessary to a reasonable person in the Defendant’s situation.
Self-defense justifies the use of physical force only while the apparent danger continues. The right to use physical force in self-defense ends when the apparent danger ends.
Actual danger is not necessary to justify the use of physical force and self-defense. It is enough if a reasonable person in the Defendant’s situation would have believed he was in immediate physical danger.
Words alone will not justify using physical force or deadly physical force, as will be indicated in the next instruction.
. The majority relied on State v. Cannon, 157 Ariz. 107, 755 P.2d 412 (1988) for the proposition that if the risk at which Hunter was directed is not present, there is no fundamental error. A reading of State v. Cannon, 157 Ariz. 107, 755 P.2d 412 (1988), and State v. Cannon, 133 Ariz. 216, 650 P.2d 1198 (1982), clearly indicates, unlike the present case, that the condemned instruction was never given in the trial court and the instruction objected to did not violate the rule concerning the state’s burden of proof.