State v. Bartlett

• Decision Date: 06 March 1990
• Docket Number: No. 10994,10994
• Citation: 1990 NMCA 24,109 N.M. 679,789 P.2d 627
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Boyd BARTLETT, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 627

789 P.2d 627

109 N.M. 679

STATE of New Mexico, Plaintiff-Appellant, v. Boyd BARTLETT, Defendant-Appellee.

No. 10994.

Court of Appeals of New Mexico.

March 6, 1990.

[109 NM 680] Hal Stratton, Atty. Gen. and Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.

Penni Adrian and Ron Koch, Pros. Attys., Albuquerque, for defendant-appellee.

OPINION

ALARID, Judge.

The opinion filed in this case on February 27, 1990, is hereby withdrawn and the following opinion is substituted therefor.

The state appeals the dismissal of a charge filed against defendant. The dismissal was based on the state's failure to comply with a discovery order. We reverse.

Defendant was charged with criminal sexual penetration based on an incident that occurred on August 13, 1987. The victim was interviewed by a detective on August 14 and again on September 3, and gave a description of her attacker at both interviews. The district court later determined that both interviews were taped. Despite numerous requests by defendant's counsel, however, the state was unable to produce the tape of the first interview. Subsequently, defendant was tried for the offense. The jury was unable to reach a verdict in that trial. Following the state's indication that it intended to re-try defendant, defendant moved to compel production of the missing tape of the August 14 interview. The trial court held a hearing on the matter, apparently determined that the tape had existed at one time, and ordered the state to produce it. The state did not do so, and the court dismissed the case for the state's failure to comply with its order.

DISCUSSION

Sanctions for violations of discovery orders are discretionary with the trial court. State v. Tomlinson, 98 N.M. 337, 648 P.2d 795 (Ct.App.), rev'd on other grounds, 98 N.M. 213, 647 P.2d 415 (1982). A defendant is not entitled to a dismissal or other sanctions upon a mere showing of violation of a discovery order. Instead, the defendant must establish prejudice resulting from the violation. Id. Where the violation results from lost or destroyed evidence, as in this case, a three-prong test has been established for determining appropriate sanctions. See State v. Chouinard, 96 N.M. 658, 634 P.2d 680 (1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1980, 72 L.Ed.2d 447 (1982). The test requires a court to balance three different considerations in deciding what, if any, sanctions should be imposed: (a) whether the state breached a duty or intentionally deprived defendant of the missing evidence; (b) whether the missing evidence was material to the case; and (c) whether defendant was prejudiced by the absence of the evidence. See id. Factors bearing on these issues include the presence of negligence or bad faith on the part of the state, the importance of the evidence to the defendant's case, and the amount of other evidence of guilt adduced at trial. See id. (discussing, with approval, federal cases); State v. Fero, 105 N.M. 339, 732 P.2d 866 (1987) (citing Chouinard and stating that the importance of the lost evidence depends on many factors, including the weight of other evidence introduced). We emphasize that since this is a discovery sanctions case, not a due process case, the analysis is somewhat different than that employed in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Although due process considerations are intertwined with the issue of appropriate discovery sanctions, especially where the sanctions result from lost or destroyed evidence, the trial court's discretion to apply such sanctions is greater than would be afforded by a pure due process analysis. For that reason, we believe the balancing test discussed in this opinion is a more appropriate means of analyzing discovery sanctions imposed by a trial court.

We start our analysis of this case with the premise that dismissal is an extreme sanction to be used only in exceptional cases. Cf. State v. Chouinard, 96 N.M. at 662, 634 P.2d at 684 (laying out alternatives when the loss of evidence is discovered before trial: either exclusion of all evidence which the lost evidence might have impeached, or admission of that evidence with full disclosure of the loss and its relevance and import; dismissal is not one of the options discussed); see also United States v. Miranda, 526 F.2d 1319 (2d Cir.1975) (case involving lost tape of conversation between informant and defendant; while discussing trial court's refusal to suppress testimony regarding that conversation, the court observed that possible sanctions include, in exceptional circumstances, dismissal of the indictment), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976): United States v. DePalma, 476 F.Supp. 775 (S.D.N.Y.1979) (stating that dismissal is a most drastic remedy and must be reserved for extremely rare cases). Dismissal is appropriate only if the defendant can show he will be deprived of a fair trial if he is tried without the missing evidence. See United States v. Heath, 147 F.Supp. 877 (D.Haw.1957) (defendant unable to prepare a defense without the missing evidence, so fair trial impossible; indictment dismissed): see also United States v. Banks, 374 F.Supp. 321 (D.S.D.1974) (dictum to the effect that dismissal is appropriate only if the evidence is so vital to defendant that a fair trial cannot be held without it). Therefore, the relevant factors must weigh heavily in favor of defendant to justify dismissal instead of some lesser sanction.

The issues of deliberate misconduct or bad faith on the part of the state were not explicitly determined at the proceeding below. The trial court did express concern about the possibility that the evidence was deliberately lost, but added that it was not necessarily saying that had occurred in this case. Rather than remand for a specific determination as to whether loss of the tape was deliberate or inadvertent, we presume for purposes of this opinion that some degree of deliberate fault on the part of the state was present. Given the trial court's failure to explicitly find such fault, however, and the absence of any real indication that loss of the tape was deliberate, this fault weighs against the state only slightly more than negligent loss of evidence. As we discuss below, balancing this fault with the other factors, and with the fact that dismissal is an extreme sanction, leads to the conclusion that dismissal was not warranted in this case.

The missing tape satisfies the materiality requirement of Chouinard because the victim's initial descriptions of her attacker, as outlined in the police report and the victim's preliminary hearing testimony, varied somewhat from her description at trial and from defendant's appearance at trial. The contents of the tape bear on the accuracy of the victim's identification of defendant as her attacker and upon her credibility, and are thus material. Cf. Chacon v....