(dissenting).
I respectfully dissent from the majority’s holding that the trial court’s dismissal of the State’s case against Defendant constituted fundamental error. First, I do not believe that it is consistent with the function and scope of appellate review to expand the doctrine of fundamental error to apply to the State’s interest in prosecuting a particular criminal charge. Second, even if it were appropriate to apply the fundamental error exception to the State, the facts of this particular case do not constitute fundamental error. Overlooking my disagreement with the majority on the fundamental error issue, I fully concur in the remainder of the opinion.
I agree with the majority that the State failed to preserve the Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), issue. However, I disagree with the majority as to the significance of the lack of preservation in light of the corrective purpose that intermediate appellate review serves. See J. Dickson Phillips, Jr., The Appellate Review Function: Scope of Review, 47 Law & Contemp.Probs., Spring 1984, at 1, 2-3. I believe that the primary role of the intermediate appellate court is quite simply to correct the errors made by the trial court. See Daniel J. Meador, Appellate Courts 2-3 (1974). It is not our role to arrive at our own conception of what would be a just result in a particular case by deciding issues not raised at trial level. Accordingly, we should continue to limit the scope of appellate review to correcting trial court acts or omissions by addressing arguments that the parties properly presented to the trial court and that thereby properly alerted the trial court to the matter at hand and afforded the trial court the opportunity to correct. See Phillips, supra, at 2-3; see also State v. Lopez, 84 N.M. 805, 809, 508 P.2d 1292, 1296 (1973); Madrid v. Roybal, 112 N.M. 354, 356, 815 P.2d 650, 652 (Ct.App.), cert. denied, 112 N.M. 308, 815 P.2d 161 (1991).
Limiting the scope of appellate review to issues that have been presented to the trial court safeguards the fairness and integrity of the adversarial process by protecting an adversary’s opportunity to contest the issue at the trial level as well as to develop the record for review. See Phillips, supra, at 4-5. Adhering to the preservation requirement also discourages sloppy legal practices. See id.; Paul T. Wangerin, “Plain Error’’ and “Fundamental Fairness”: Toward a Definition of Exceptions to the Rules of Procedural Default, 29 DePaul L.Rev. 753, 760 (1980). In addition, the rules of preservation further the interests of judicial economy for the simple reason that each issue raised for the first time on appeal actually presents the appellate court with two issues: whether to address the issue and, if so, the decision on the merits. Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand.L.Rev. 1023, 1032 (1987). Furthermore, a lax adherence to the rules of preservation by broadly extending the fundamental error doctrine to the State could very well inundate the Court of Appeals with countless new appeals, all containing issues not previously considered by the trial court. See Wangerin, supra, at 760. Finally, we must consider the negative impact on the trial court if we address issues that were not first presented to the trial court. To do so would erode the moral authority of the trial bench, both with the public and the practicing bar, by our undermining the role of the trial court and compromising the division of the functions between the trial and appellate courts. Phillips, supra, at 5.
Although proper presentation to the trial court is the general rule to which we adhere in delineating the scope of appellate review, it is well-established law in New Mexico that we have the discretion to review questions involving fundamental error or fundamental rights. SCRA 1986, 12-216(B)(2) (Repl.1992). It<is equally well established that in the context of fundamental error, this Court will exercise its discretion very guardedly and only if a fundamental right has been invaded, rather than merely in aid of a claim that is strictly legal, technical, or unsubstantiated. See State v. Garcia, 19 N.M. 414, 421-22, 143 P. 1012, 1014-15 (1914); State v. Chacon, 80 N.M. 799, 800, 461 P.2d 932, 933 (Ct.App.1969).
With few exceptions, see New Mexico Dep’t of Human Servs., Income Support Div. v. Tapia, 97 N.M. 632, 634, 642 P.2d 1091, 1093 (1982); Schaefer v. Whitson, 32 N.M. 481, 482-84, 259 P. 618, 618-19 (1927), fundamental error historically has been limited to criminal defendants. The majority’s application of the doctrine of fundamental error to the State is a minority position in the United States. In fact, it does not appear to be a position taken by any other state jurisdiction. The majority cites to no other state that has extended fundamental error to the prosecution and instead relies on the reasoning in United States v. Krynicki, 689 F.2d 289 (1st Cir.1982), a federal case.
In support of its application of fundamental error to the State, the majority relies in part on the “miscarriage of justice” definitional prong of fundamental error in prior New Mexico case law. See State v. Rodriguez, 113 N.M. 767, 774, 833 P.2d 244, 251 (Ct.App.), cert. denied, 113 N.M. 636, 830 P.2d 553 (1992). To further support this argument, the majority relies on what it perceives to be the party-neutral definition of fundamental error found in State v. Lucero, 70 N.M. 268, 272, 372 P.2d 837, 840 (1962), State v. Bencomo, 109 N.M. 724, 725, 790 P.2d 521, 522 (Ct.App.1990), and Garcia, 19 N.M. at 421-22, 143 P. at 1015. However, a close reading of those cases does not persuade me that the definition of fundamental error should include the State. A precise reading of Lucero reveals that fundamental error applies specifically to the defendant’s rights: “[T]he errors complained of must be such as go to the foundation of the case, and which deprive the defendant of rights essential to his defense.” Lucero, 70 N.M. at 272, 372 P.2d at 840. Similarly, by quoting this exact language from Lucero, this Court in Bencomo reaffirmed that the rights involved were those of the defendant. Bencomo, 109 N.M. at 725, 790 P.2d at 522. In first articulating the doctrine of fundamental error, the New Mexico Supreme Court in Garcia voiced its concerns about the lack of “substantial justice” precisely because the criminal defendant had been imprisoned when there was “not only no evidence ... to support the verdict, but the evidence established, conclusively, that he was innocent.” 19 N.M. at 421, 143 P. at 1014.
Moreover, by utilizing a misearriage-of-justice standard in favor of the State, I fear that the majority rationale will, in all State’s appeals, essentially allow the fundamental error exception to swallow the general rule, because the State is allowed to appeal only in limited circumstances. See NMSA 1978, § 39-3-3(B) (Repl.Pamp.1991) (State appeals are allowed only for dismissals or when evidence is suppressed); State v. Santulones, 96 N.M. 482, 485, 632 P.2d 359, 362 (Ct.App.1980) (State may also appeal disposition contrary to law), rev’d on other grounds, 96 N.M. 477, 632 P.2d 354 (1981).
Finally, I disagree with the majority that there is not good reason to treat the State differently from defendants. I believe that State v. Baca, 92 N.M. 743, 745, 594 P.2d 1199, 1201 (Ct.App.1979), states good law. There are many rules that apply only to defendants, most notably the constitutional rights set forth in the Bill of Rights and the Due Process Clause of the Fourteenth Amendment, which expressly states, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1 (emphasis added). Our Supreme Court has only recently noted that part of the purpose of the double jeopardy clause is to prevent the State “with all its resources and power” from harassing individuals. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). Therefore, I would not expand the rule of fundamental error in favor of the State.
Even if under New Mexico definitions of fundamental error, it is appropriate to extend the doctrine to the State, I am not persuaded that fundamental error exists in this particular instance under either the Krynicki analysis or the Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941), analysis relied on by the majority. First, I disagree with the majority’s application of the Krynicki factors to the case at hand. See Krynicki, 689 F.2d at 291-92. I agree that factors one (that the new issue is purely legal and its resolution would not be aided by further fact development) and two (that the proper resolution of the issue is not in doubt) are probably both satisfied, since Johnson appears to be dispositive. But see Phillips, swpra, at 4-5 (indicating that among the values protected by adherence to the preservation rule is the adversary process, including a full opportunity for development of the issues; accordingly, it may be presumptuous for an appellate court to assume that the adversaries would have done nothing different had the issue been raised below).
However, I do not find the third Krynicki factor (that the issue is almost certain to arise in other cases and therefore it is judicially economical to address it at the appellate level) to be persuasive. Since Johnson is clearly established law, I do not understand why this Court feels compelled to address the underlying double jeopardy issue on the basis that the issue will most surely arise in other cases. See Martineau, supra, at 1040-41. My most strenuous disagreement with the majority’s application of the Krynicki factors, however, deals with the fourth and most important factor (that declining to reach the issue would result in a miscarriage of justice).
As relied on by the majority, the United States Supreme Court in Hormel acknowledged the existence of “exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Hormel, 312 U.S. at 557, 61 S.Ct. at 721. The Hormel Court further acknowledged that a “rigid and undeviating” adherence to the rules of preservation could result in the sacrifice of fundamental justice. Id.
In the instant case, however, I am not persuaded that this Court is presented with such an exceptional case of injustice. It is not clear to me that the State’s interest in prosecuting a suspected criminal has been so thwarted as to rise to the level of fundamental error when the State cannot prosecute Defendant for the assault charge because the State failed to preserve the Johnson issue, but when Defendant did plead no contest to six misdemeanors arising from the transaction upon which the assault charge was based. Defendant has not evaded the prosecutorial reach entirely and can be sentenced to substantial punishment. Thus, under the facts of this case, the prosecutor’s interest in prosecuting suspected criminals is not especially compelling.
For these reasons, I would decline to extend the doctrine of fundamental error to the State and would, therefore, affirm the trial court. Because the majority rules otherwise, I respectfully dissent.