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State v. Mier

Supreme Court of New Mexico

April 27, 2017

STATE OF NEW MEXICO, Plaintiff-Respondent,
v.
ASHLEY LE MIER, Defendant-Petitioner.

         ORIGINAL PROCEEDING ON CERTIORARI Donna J. Mowrer, District Judge

          Bennett J. Baur, Chief Public Defender B. Douglas Wood III, Assistant Appellate Defender Santa Fe, NM for Petitioner

          Hector H. Balderas, Attorney General Jacqueline Rose Medina, Assistant Attorney General Albuquerque, NM for Respondent

          OPINION

          JUDITH K. NAKAMURA, Justice

         {1} In this case, we clarify the circumstances under which a court may permissibly exclude a witness as a discovery sanction. The district court issued clear, unambiguous, and reasonable discovery orders to ensure that the parties would be prepared to try Defendant Ashley Le Mier's case in a timely fashion. The State failed to comply with these orders, and the district court excluded one of the State's essential witnesses as a sanction. The State could not proceed to trial without the witness and appealed. The Court of Appeals held that State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25 precluded imposition of the sanction imposed and, thus, that the district court abused its discretion. State v. Le Mier, No. 33, 493, mem. op. ¶¶ 1, 8-9 (N.M. Ct. App. July 22, 2014) (non-precedential). We disagree. Harper poses no obstacle to the sanction imposed. The district court's order was an appropriate exercise of its discretionary authority. The Court of Appeals is reversed.

         I.

         {2} Le Mier unsuccessfully attempted to smuggle illegal substances into the Roosevelt County Detention Center (RCDC) by concealing them within a body cavity. The contraband was discovered during a strip search, Le Mier was charged with three minor criminal offenses, she was arraigned on June 18, 2012, and pled not guilty. Trial was initially set for mid-January 2013 but was postponed and rescheduled three times: once early in the proceedings to allow Le Mier's initial counsel time to prepare, once midway through the proceedings to allow Le Mier's substitute counsel time to prepare, and once near the end of the proceedings because the State could not locate all of its witnesses.

         {3} The discovery phase of the proceedings lasted eighteen months. During this time, the State filed five different witness lists. Initially, eleven witnesses were enumerated, then twelve, and finally nine. Sergeant Divine Alcanzo-the corrections officer who supervised the strip search during which the contraband was discovered-appeared on all five witness lists.

         {4} Le Mier's substitute counsel, Margaret Strickland, entered her appearance in June 2013, a year after Le Mier's arraignment. At that time, the State had filed its second witness list, and Strickland made good faith efforts to contact the witnesses enumerated on that witness list. Strickland could not, however, reach several of the witnesses at the addresses provided-including Alcanzo, whose address was listed as the RCDC. Strickland alerted the court to her difficulties at the hearing on her motion to continue trial in August 2013.

         {5} At that hearing, the State assured the court that it would provide Strickland correct addresses for all witnesses. And as to Alcanzo, the State acknowledged that she no longer worked at the RCDC, no longer resided in New Mexico, and promised to provide Strickland her correct address. The record is silent as to when, precisely, the State learned these facts about Alcanzo. Three times prior to the motion hearing, the State represented that Alcanzo could be reached at the RCDC. In any case, the court granted Strickland's motion to continue and reset trial for October 2013.

         {6} Shortly after the hearing, the court entered a written order directing the State to file an updated witness list with correct addresses for all witnesses and provided a date by which this was to be accomplished. The State filed a third witness list by the date specified by the court. The third witness list gave an Amarillo, Texas address for Alcanzo. But as before, Strickland could not reach Alcanzo at that address despite her good faith efforts and similarly could not reach several other witnesses enumerated in the third witness list at the addresses provided by the State.

         {7} Strickland again alerted the court to the difficulties she was having locating and communicating with the State's witnesses by filing a motion to exclude witnesses and by alerting the court to the problem at a September 2013 pretrial conference. The court remained optimistic that the parties could settle the witness address issues and instructed them to meet and work towards some resolution.

         {8} A short time after the pretrial conference, the State filed a fourth witness list, which gave yet another Amarillo, Texas address for Alcanzo. Once again, Strickland was unable to reach Alcanzo at that address despite her good faith efforts and was also unable to reach several other witnesses enumerated in the State's fourth witness list at the addresses provided.

         {9} In early October 2013, only a few days after the State filed its fourth witness list, the court held a hearing on Strickland's motion to exclude. At that hearing, the State acknowledged that it too had not been able to contact or communicate with most of the witnesses whom Strickland had been unable to contact. With this concession, the district court became aware that the State had made insufficient efforts to confirm the accuracy of the addresses provided, and had done this despite the fact that the court had ordered the State to provide Strickland correct addresses for all witnesses. The court informed the State that it was unfair to require Strickland to track down and communicate with witnesses the State had not itself located and who might not even testify at trial. Hoping to finally put the witness address issues to rest, the court once again ordered the State to provide Strickland correct addresses for all witnesses and again specified a date by which this was to be completed. The court took the additional step of requiring the State to facilitate a telephone conversation between Strickland and Alcanzo. The court gave clear and explicit instructions: "if you find [Alcanzo], provide a telephonic interview with Ms. Strickland for her . . . . In other words, if you get her on the phone, you contact Ms. Strickland so that Ms. Strickland can have a telephone conference at ...


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