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State v. Lewis

Court of Appeals of New Mexico

August 31, 2017

STATE OF NEW MEXICO, Plaintiff-Appellant,
DAMON LEWIS, Defendant-Appellee.


          Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM for Appellant.

          L. Helen Bennett, P.C. L. Helen Bennett Albuquerque, NM for Appellee.


          JULIE J. VARGAS, Judge.

         {1} The State asks us to reverse the district court's sanction of dismissal with prejudice of Defendant's shoplifting charges resulting from the State's failure to timely turn over recordings of witness identification interviews. Because the district court failed to explain the manner in which it considered culpability, prejudice, and lesser sanctions, as required by State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, and clarified in State v. Le Mier, 2017-NMSC-017, 394 P.3d 959, we reverse the decision of the district court and remand the case for further consideration of the propriety of the sanction in light of these factors.

         I. BACKGROUND

         {2} Defendant Damon Lewis, was indicted for shoplifting and conspiracy to commit shoplifting on June 25, 2014. The district court issued a scheduling order requiring that the parties complete all witness interviews by July 17, 2015, and file all pre-trial motions, excluding motions in limine, by July 28, 2015. The district court set the docket call for October 26, 2015, and trial on a trailing docket beginning November 2, 2015.

         {3} Three months after the deadline to file pre-trial motions, Defendant filed a motion to dismiss the case or suppress the photo array identifications. In his motion, Defendant asserted that the police failed to record the photo array identifications contrary to the police department's standard operating procedures, reasoning that because the State had not produced any recording during discovery as required by Rule 5-501 NMRA, it must have failed to collect and preserve that evidence.

         {4} On the first day of trial, the district court addressed Defendant's motion to dismiss, noting it was untimely. Defense counsel advised the court that, since filing his motion, the State had provided the recordings he presumed were lost, destroyed, or nonexistent. In response, the State pointed to a speed letter issued to Defendant, explaining that the recordings had been checked into evidence for as long as the case had been pending and were therefore available to Defendant. The State conceded that it had "definitely violated" the rule requiring it to provide copies of audio, video, and audio-video recordings made by law enforcement officers, see LR2-400.1(D) NMRA, but argued that the court had discretion under Harper to impose a lesser sanction than dismissal or suppression. See 2011-NMSC-044. Noting its obligation to impose sanctions, and after rejecting monetary sanctions as a remedy, the district court dismissed the case with prejudice, citing the State's continuing duty to disclose and its "blatant violation of the discovery rules." The State appealed.


         {5} We review the district court's imposition of sanctions for an abuse of discretion. Le Mier, 2017-NMSC-017, ¶ 22. To dismiss Defendant's case, the district court relied on LR2-400.1. The rule applies to cases filed in the Second Judicial District Court on or before June 30, 2014. The rules of criminal procedure and existing case law apply to these cases "only to the extent they do not conflict" with the special calendar rule. LR2-400.1(A), (B). The rule requires the parties to disclose "all discovery described in Rule 5-501(A)(1)-(6) NMRA" as well as the "phone numbers and e-mail addresses of all witnesses if available, copies of documentary evidence and audio, video, and audio-video recordings made by law enforcement officers[, ]" and to provide "a 'speed letter' authorizing the defendant to examine physical evidence in the possession of the [s]tate." LR2-400.1(D). These disclosures must be made within ten days of the effective date of the rule, or no later than February 12, 2015, if not already disclosed. LR2-400.1(D). The parties are also subject to "a continuing duty to disclose additional information within five (5) days of receipt of such information." LR2-400.1(D)(2). Should either party fail to comply with the discovery requirements set forth in the rule, the district court "shall impose sanctions, which may include dismissal of the case with or without prejudice, prohibiting the party from calling a witness or introducing evidence, monetary sanctions . . ., or any other sanction deemed appropriate by the court." LR2-400.1(D)(4). Further, where a party "fails to comply with any provision of the scheduling order, the court shall impose sanctions as the court determines is appropriate in the circumstances[.]" LR2-400.1(J)(4).

         {6} In Harper, our Supreme Court held that "exclusion of witnesses requires an intentional violation of a court order, prejudice to the opposing party, and consideration of less severe sanctions[.]" 2011-NMSC-044, ¶ 2. The Harper court pointed out that dismissal and witness exclusion are extreme sanctions, to be used only in exceptional cases. Id. ¶¶ 16, 21. Our Supreme Court later sought to "clarify the circumstances under which a court may permissibly exclude a witness as a discovery sanction." Le Mier, 2017-NMSC-017, ¶ 1. According to Le Mier, "Harper did not establish a rigid and mechanical analytic framework . . . so rigorous that courts may impose witness exclusion only in response to discovery violations that are egregious, blatant, and an affront to their authority." Le Mier, 2017-NMSC-017, ¶ 16. The Court further explained that a district court "must evaluate the considerations identified in Harper-culpability, prejudice, and lesser sanctions-when deciding whether to exclude a witness and must explain their decision to exclude or not exclude a witness within the framework articulated in Harper[.]" Le Mier, 2017-NMSC-017, ¶ 20. Despite this obligation, the district court continues to possess the "broad discretionary authority to decide what sanction to impose when a discovery order is violated." Id. ¶ 22. Thus, according to Le Mier, "it is not the case that witness exclusion is justified only if all of the Harper considerations weigh in favor of exclusion." Le Mier, 2017-NMSC-017, ¶ 20. Instead, the district court may use suppression as a sanction for failure to comply with a discovery order "to maintain the integrity and schedule of the court even though the defendant may not be prejudiced." Id. (internal quotation marks and citation omitted).

         {7} Using this framework to guide its assessment of the district court's discretion in imposing sanctions, the Le Mier court then assessed the Harper factors. Le Mier, 2017-NMSC-017, ¶¶ 24-29. Looking first to the culpability factor, the Court noted that the facts of that case were particularly compelling, with the state flagrantly disregarding multiple extensions and warnings from the district court. Concluding that the state's conduct was sufficiently culpable to justify exclusion, the Court also noted that "a single violation of a discovery order may suffice to support a finding of culpability." Id. ¶ 24. The Court similarly found no abuse of discretion in the district court's prejudice determination, reasoning that "[w]hen a court orders a party to provide discovery within a given time frame, failure to comply with that order causes prejudice both to the opposing party and to the court."Id. ¶ 25. The prejudice to the defendant, according to the Court, was that his "day in court" had been needlessly delayed and that he had been subjected to "the possibility of trial by surprise[.]" Id. The Court explained that the district court had been prejudiced by wasting its time and disrupting its docket to the detriment of other parties and the entire justice system. Id. ¶ 26. Finally, the Court concluded that the sanction imposed by the district court had been the least severe sanction available, noting that the district court "was not obligated to consider every conceivable lesser sanction before imposing witness exclusion." Id. ¶ 27. Instead, the district court satisfied its burden by "fashion[ing] the least severe sanction that best fit the situation and which accomplished the desired result." Id. The Court reasoned that the progressive sanctions imposed by the district court were evidence that the district court imposed the least severe sanction appropriate to the circumstances. Id. ¶ 28. The Court further condoned witness exclusion as a sanction in that case because it "ensured that the court's authority to efficiently administer the law and ensure compliance with its orders was vindicated." Id. ¶ 29.

         {8} Because the rules of criminal procedure and existing case law apply to this case "only to the extent they do not conflict" with the special calendar rule, LR2-400.1(A), (B), we must determine whether a conflict exists. While the language of the rule makes sanctions mandatory for violations of discovery obligations and scheduling order deadlines, it leaves the decision of the type of sanction to impose to the discretion of the district court. The rule provides no guidance as to the considerations to be made when assessing sanctions. Our Supreme Court, however, has set out guidelines for assessing sanctions in Harper and Le Mier. Le Mier's requirements that a court must both evaluate the considerations identified in Harper and explain its decision within the Harper framework in determining what type of sanction to impose, merely supplement the rule without conflicting with it. As no conflict exists between the rule and established precedent, we continue to rely on Harper's use of culpability, prejudice, and lesser sanctions as appropriate tools for evaluating the type of sanction that the district court may impose. Further, though Harper and Le Mier address a district court's exclusion of a witness as a sanction, rather than the ...

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