State v. Harper

• Decision Date: 22 November 2011
• Docket Number: Nos. 32,388,32,402.,s. 32,388
• Citation: 2011 -NMSC- 044,150 N.M. 745,266 P.3d 25
• Parties: STATE of New Mexico, Plaintiff–Petitioner, v. Curtis HARPER, Defendant–Respondent.State of New Mexico, Plaintiff–Respondent, v. Curtis Harper, Defendant–Petitioner.
• Court: New Mexico Supreme Court

150 N.M. 745

2011 -NMSC- 044

266 P.3d 25

STATE of New Mexico, Plaintiff–Petitioner,

v.Curtis HARPER, Defendant–Respondent.State of New Mexico, Plaintiff–Respondent,

v.Curtis Harper, Defendant–Petitioner.

Nos. 32,388

32,402.

Supreme Court of New Mexico.

Nov. 22, 2011.

Gary K. King, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Santa Fe, NM, for State of New Mexico.

Jacqueline L. Cooper, Acting Chief Public Defender, Carlos Ruiz De La Torre, Assistant Appellate Defender, Santa Fe, NM, for Curtis Harper.

OPINION

CHÁVEZ, Justice.

{1} Defendant Curtis Harper was indicted on fifteen counts of criminal sexual penetration of a child under the age of thirteen. During a docket call in December 2006, the district court learned for the first time that not all witness interviews had been conducted, including those of the alleged victim and the doctor who examined her. The district court rescheduled the trial for February 19, 2007, and verbally instructed the attorneys to complete the witness interviews by January 19, 2007. During a subsequent hearing, because neither the victim nor the doctor were interviewed before the court-imposed deadline, the district court prohibited the State from calling either of them as witnesses. The State agreed with Harper that it could not make a prima facie case against him if these two witnesses were not allowed to testify.

{2} The State appealed the district court's exclusion of the two witnesses. The Court of Appeals unanimously reversed the district court regarding the victim, concluding that the State made efforts to comply with the district court's request and Harper was not prejudiced by the State's failure to make the victim available for an interview within the time frame established by the district court. Among other reasons, the Court of Appeals noted that this Court had granted Harper's Rule 5–604 NMRA petition for an extension of time to try the case until June 24, 2007. A majority of the Court of Appeals affirmed the exclusion of the doctor because, although Harper was not prejudiced, the State intentionally did not comply with the district court's deadline due to the doctor's demand for payment in advance of the interview. Because exclusion of witnesses requires an intentional violation of a court order, prejudice to the opposing party, and consideration of less severe sanctions, we affirm the Court of Appeals with respect to the victim and reverse with respect to the doctor. Therefore, we reverse the district court's order precluding the victim and the doctor from testifying at trial and remand for proceedings consistent with this Opinion.

PROCEDURAL HISTORY

{3} On November 22, 2004, Harper was indicted on fifteen counts of criminal sexual penetration of a child under the age of thirteen, a first-degree felony. After initially being represented by private defense counsel, Harper secured representation from the New Mexico Public Defender Department beginning in June 2005. Harper's attorney made his first request for witness interviews to the State on July 8, 2006.

{4} Five months later during a docket call, Harper's attorney advised the district court that the parties were not prepared to go to trial because, despite two attempts, not all of the witnesses had been interviewed. Harper's attorney acknowledged that the district court would not entertain a motion to dismiss at that time. Harper's attorney therefore asked the court to set a date by which the witnesses were to be made available, and if the witnesses were not available or did not cooperate, then they could “take it from there.”

{5} The State explained that one group of witnesses had been scheduled but had failed to appear, and stated that those witnesses would be rescheduled under subpoena. The two remaining witnesses included the victim, who was a minor, and Dr. Ornelas, who examined her. The State agreed to make the victim available, but indicated that her interview would be the last to be scheduled so that Harper could consider the pending offer of a plea agreement. The State explained that under a policy in the Second Judicial District Attorney's Office, a plea offer is withdrawn once a minor victim is interviewed. With respect to Dr. Ornelas, the State represented that there had been no attempt to set up the interview because the Public Defender Department had not yet authorized payment of Dr. Ornelas, and “we've got to get payment set up before that can be done.”

{6} In response to an inquiry from the district court about the time left to try the case, the prosecutor stated that one month remained, but he intended to seek an extension of time for an additional six months. The district court then asked how much time was needed to complete the interviews. The prosecutor estimated that a couple of weeks would be needed to interview the first set of witnesses. With respect to the victim, the prosecutor believed she could be scheduled at any time, but cautioned that the plea offer would be withdrawn once that interview occurred. With respect to Dr. Ornelas, the prosecutor represented that “the doctor cannot be set up until payment is approved.” Harper's attorney did not comment on any of the State's representations. Accordingly, the district court scheduled the trial for February 19, 2007. With respect to the interviews, the district court stated, with brief interruptions from counsel acknowledging what was being said:

[W]hat I'd like to do is to try to give a deadline of the 19th of January for these interviews to be completed.... And that way if we're at that point and everything that can be done has been done, then you folks have a month to get the case actually ready to try.... Then if there's at least in the Defense's mind some continuing noncompliance, we'll—the Court will consider any motions that you have sometime [sic] after that and figure out if any remedy is necessary.

{7} An order regarding the witness interviews was never entered by the district court. It is not clear from the above pronouncement who had the responsibility to make the witnesses available. Despite the lack of clarity or any rule obligating the State to make witnesses available, it appears from the record that the State assumed that responsibility. It is also not clear who was to make arrangements to pay Dr. Ornelas, or if that arrangement was necessary at all. However, in a subsequent hearing, the State represented that other judges in the Second Judicial District Court have required the Public Defender Department to pay the doctor in this type of case. Overall, the lack of evidence and the vagueness of the commentary by both the attorneys and the district court make analysis of this case difficult.

{8} In any event, although some witnesses were interviewed under subpoena, the victim and Dr. Ornelas were not. The prosecutor scheduled the victim to be interviewed by Harper on January 19, 2007, and as recently as January 18 the victim had purportedly advised the prosecutor that she would attend the interview. However, she did not appear for her interview and apparently avoided a follow-up phone call from the prosecutor. The prosecutor never scheduled Dr. Ornelas for an interview because payment arrangements were not made. The State filed a motion to extend the time to produce witnesses, and Harper filed a motion to exclude the State's witnesses. Both motions were heard on March 29, 2007. Prior to the hearing, pursuant to Rule 5–604, the State secured an additional time extension from this Court to try the case, which was then set for trial on June 24, 2007.

{9} The district court ultimately excluded both the victim and Dr. Ornelas as witnesses, citing the following reasons: (1) the State failed to comply with an unambiguous deadline; (2) “witness[es cannot] hold hostage their testimony and their cooperation with discovery in a criminal case on simply a philosophy of no-pay-no-play”; (3) the State failed to produce any witnesses to testify in support of its allegations that the victim had been pressured by Harper's family not to cooperate with the prosecution; and (4) Harper was prejudiced because of “lack of discovery, lack of ability to prepare, lack of confrontation, incarceration ... during all of this delay.” The prosecution conceded that “as long [as] these two witnesses remain unable to testify, the State cannot go forward and put on a prima facie case.”

{10} Following the district court's order excluding the two witnesses, the court lowered Harper's $200,000 cash-only bond to a $50,000 cash or surety bond with numerous conditions of release. Harper was released from state custody in late July 2007. The State appealed to the Court of Appeals.

{11} The Court of Appeals, in an Opinion authored by Judge Kennedy with Judge Robles concurring, reversed the district court's exclusion of the victim's testimony, and affirmed the district court's exclusion of Dr. Ornelas's testimony. Judge Bustamante concurred as to the victim and dissented as to Dr. Ornelas. State v. Harper, 2010–NMCA–055, ¶¶ 37–61, 148 N.M. 286, 235 P.3d 625 (Bustamante, J., specially concurring in part and dissenting in part). At the outset of its Opinion, the majority emphasized that it would not disturb the district court's rulings absent an abuse of discretion, but noted that exclusion of witnesses is improper absent a party's intentional refusal to comply with a court order and prejudice to the opposing party. Id. ¶¶ 11–12. Judge Bustamante agreed with this statement of the law. Id. ¶¶ 45, 48–49 (Bustamante, J., specially concurring in part and dissenting in part).

{12} Regarding the victim, the majority, with Judge Bustamante concurring, concluded that the State had made adequate efforts to make the victim available for an interview within the time frame set forth by the district court, and prejudice shown by Harper was insufficient. Id. ¶¶ 16, 51–52. With regard to the State's compliance, the Court of Appeals cited the State...