State Of N.M. v. Harper

• Citation: 235 P.3d 625,2010 NMCA 055,148 N.M. 286
• Decision Date: 16 April 2010
• Docket Number: 830.,No. 27,27
• Parties: STATE of New Mexico, Plaintiff-Appellant,v.Curtis HARPER, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

148 N.M. 286

235 P.3d 625

2010 NMCA 055

STATE of New Mexico, Plaintiff-Appellant,v.Curtis HARPER, Defendant-Appellee.

No. 27,830.

Court of Appeals of New Mexico.

April 16, 2010.

Certiorari Granted, No. 32,388, June 2, 2010.

Certiorari Granted, No. 32,402, June 24, 2010.

Gary K. King, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellant.

Daniel M. Salazar, Albuquerque, NM, for Appellee.

OPINION

KENNEDY, Judge.

{1} In this case, we are presented with another appeal from the consequences of the State's failure to abide by an order of the district court to complete witness interviews by a certain deadline. Following a motion hearing in which the defense sought witness interviews which had not occurred, the district court set a discovery deadline requiring that all witness interviews in the case against Curtis Harper (Defendant) be completed by January 19, 2007. We concern ourselves with two interviews: An interview with the alleged victim (SV) was scheduled on the day of the deadline, but she was not under subpoena, and she failed to appear. Next, despite the district court's order, the State persisted in its refusal to schedule an interview with the State's expert witness, Dr. Renee Ornelas, because the defense had never made arrangements prior to the interview to pay her expert witness fees. The Monday following the missed deadline the State submitted a motion for an extension of time. Defendant responded with a motion opposing the extension and a motion to exclude SV and Dr. Ornelas as witnesses. Defendant's motion to exclude the witnesses' testimony was granted, from which the State appeals.

{2} We first consider whether the district court abused its discretion in excluding SV given that the State scheduled her interview on the discovery deadline, and that approximately five months remained before the trial date, and conclude that reversal is in order. Our second inquiry is whether the State's expert was properly excluded where the district court had been fully apprised that the prosecution refused to schedule an interview until the defense affirmed it would pay witness fees, ordered that the interview be scheduled irrespective of the State's argument, and finally sanctioned the State when it intentionally disobeyed the district court's order. We reverse the district court as to the exclusion of SV's testimony and affirm as to the exclusion of Dr. Ornelas.

BACKGROUND

{3} In November 2004 Defendant was indicted and arrested on fifteen counts of criminal sexual penetration of a minor in the first degree. Defendant remained incarcerated over two years while awaiting trial. From his indictment and arraignment in late 2004 until December 11, 2006, Defendant's trial date was pushed back multiple times through extensions granted under Rule 5-604(C) and (D) NMRA. Each request cited the need to finish discovery, “specifically any necessary [pretrial] interviews,” as a basis for the extensions, among other things.

{4} Some witnesses, including SV and Dr. Ornelas, had not been interviewed by the trial setting on December 11, 2006. At that setting, the defense requested of the district court a “date certain by which witnesses be made available, and then if they're not available or they show an unwillingness to cooperate perhaps we can take it from there.” The State made clear that Dr. Ornelas was an essential witness and her materiality to its case is undisputed. The State offered to set up the interview with SV at any time, but stated that it would not schedule an interview with Dr. Ornelas until payment of her expert witness fees was affirmed by the defense. The district court did not comment on the State's position, but simply imposed a deadline of January 19, 2007, to complete all witness interviews in preparation for trial. The court specifically stated, “if there's at least in the [d]efense's mind some continuing noncompliance, we'll-the [c]ourt will consider any motions that you have sometime after that and figure out if any remedy is necessary.” At the time, trial was set for February 19. The State did not contest the order, or request that the district court attach any conditions to the scheduling of the interviews. At no time during this case did the State request a ruling as to whether its insistence on pre-payment of a witness fee was proper, nor did it request an order from the district court to either compel Defendant to pay such a fee or facilitate Defendant's right to payment of the expert witness fee. It did, however, file a Rule 5-604 petition on December 13, alleging that “[t]he defense has still not obtained funding from the Public Defender's [O]ffice to interview the medical personnel that the State intends to call.” On January 2, 2007, the extension was granted until March 24, 2007.

{5} An interview was scheduled with SV on the January 19 deadline, but she failed to appear. An interview with Dr. Ornelas was never scheduled by the State. On January 22, 2007, the State filed a motion to extend the time to produce witnesses, asserting that “[t]he interview of [Dr. Ornelas] has never been set as it requires notification by defense that payment has been authorized.” The defense responded with a motion to exclude the State's witnesses, and a motion opposing an extension to produce them, asserting that the State had declined to schedule Dr. Ornelas' interview despite having been ordered to do so on December 11 by the district court. The State responded on February 12 that it was under no inherent obligation to provide interviews, and that the defense, in the face of a witness' refusal should issue a notice of statement, or seek to depose the recalcitrant witness. Since SV had also failed to attend her interview, the State explained that SV was not subpoenaed because there was no reason to believe that she would not attend. The State also explained that it scheduled the interview with her on the deadline because it was the only day she was available and because it wanted to give Defendant time to consider a plea bargain. The State explained that it had a policy of withdrawing any potential plea bargain once a defendant interviewed a minor victim. It asserted again that the “defense has been informed many times that they must pay for [Dr. Ornelas'] interview and we would not set it until they had confirmed that the Public Defender['s Office] had approved payment.” The State filed another Rule 5-604 petition with the Supreme Court on February 15, 2007, alleging a failure to arrange payment for Dr. Ornelas' interview as a reason for the failure to complete discovery, but did not mention the existence or terms of the January 19 deadline. This petition resulted in an extension of the trial deadline to June 24, 2007.

{6} The district court set both motions for hearing at which it denied the State's requested extension and granted Defendant's motion to exclude based on the fact that the interviews had not been completed by the deadline. At the hearing, the State again asserted that Defendant had “no absolute right to an interview” and told the court that while it had been taken by surprise by SV's lack of cooperation, it had made no effort to schedule an interview with the expert because “Dr. Ornelas is a[n] expert witness. She won't give an interview until payment is arranged.” Defense counsel pointed out that Defendant had been in custody for twenty-eight months up to that point and asserted the lack of contact with the two important witnesses and its impact on preparing a defense as prejudicial to his rights.

{7} The district court stated that its “setting of a deadline was unambiguous.” In support of its ruling, the court found that SV had not exhibited a willingness to cooperate. The State told the court that it would be their intention to proceed to trial even if SV stated in her interview that she remembered nothing. With regard to Dr. Ornelas, the district court stated from the bench, “[w]hether it's a reimbursement issue or a contractual issue or something else of that nature is certainly an issue that can be pursued, but to simply throw up a [roadblock] of refusing to participate ... turns the system on its head[,] and this [c]ourt is not going to accept that that was proper.” In its written order, the district court found that Dr. Ornelas was a “combination fact/expert witness” and that she could not “refuse an interview to the defense based upon pay.” The court further found that the defense's inability to interview these witnesses by the deadline prevented the defense from providing effective assistance, performing due diligence, and from adequately confronting the witnesses.

{8} The district court also had a motion to dismiss before it. The court postponed ruling on the motion to dismiss pending the outcome of this appeal.

STANDARD OF REVIEW

{9} “Sanctions for violations of discovery orders are discretionary with the [district] court.” State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct.App.1990). “[A]n abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances in the case.” State v. Jackson, 2004-NMCA-057, ¶ 10, 135 N.M. 689, 92 P.3d 1263 (alteration in original) (internal quotation marks and citation omitted).

{10} The district court ruled that as a result of its missed deadline, defense counsel was prevented from providing effective assistance, performing due diligence, and adequately confronting witnesses. The district court ruling presents a mixed question of fact and law. Id. ¶ 18. We defer to the district court with respect to the finding of facts so long as they are supported by substantial evidence, but application of the law to those facts is reviewed de novo. Id.

DISCUSSION

{11} The State did not at the time and does not now contest the propriety of the district court's order setting the discovery deadline, but only the sanction imposed for its failure to abide by it....