State v. Wisniewski
| Decision Date | 03 September 1985 |
| Docket Number | No. 15354,15354 |
| Citation | 708 P.2d 1031,103 N.M. 430,1985 NMSC 79 |
| Parties | STATE of New Mexico, Petitioner, v. In re Contempts of Stephen S. WISNIEWSKI, Chris Wyatt, Ronald R. Walker and Michael F. McCormick, Respondents. |
| Court | New Mexico Supreme Court |
After a criminal trial wherein the defendant was acquitted of assault and battery charges, the district court ordered district attorneys Michael McCormick and Ronald Walker and police officers Stephen Wisniewski and Chris Wyatt to show cause why they should not be held in contempt. This action came as a result of an asserted negligent failure to comply with the version of NMSA 1978, Crim.P.Rule 27 (Repl.Pamp.1980) then in effect, as well as negligent failure to comply with a discovery order issued by the court. At the conclusion of the show cause hearing, the court held all four respondents in contempt and fined each $100.
The Court of Appeals, 708 P.2d 1048, consolidated the appeals of the four respondents. In its opinion the court concluded that as to respondents Wyatt and Wisniewski, the time for filing an appeal was tolled due to the special circumstances of the case. The appeals court then reversed all four contempt convictions primarily on grounds that the district court could only exercise its contempt powers where there had been wilful non-compliance with the rules of criminal procedure or an intentional act in contravention of the district court's authority. We granted certiorari and now reverse except as to the appeals issue.
The primary issues we consider are 1) whether the appeals of officers Wisniewski and Wyatt were timely; and 2) whether the district court has the authority to utilize its contempt powers to punish negligent failure to comply with the Rules of Criminal Procedure or with a discovery order.
The district court order finding all respondents in contempt was entered on June 8, 1983. Attorneys McCormick and Walker filed notices of appeal within the time period set forth under the then-controlling provisions of NMSA 1978, Crim., Child Ct., Dom.Rel. & W/C App.Rule 202(a) (Repl.Pamp.1983). Officers Wisniewski and Wyatt, however, appealed one day after the ten-day period set forth under Rule 202(a).
At the time officers Wisniewski and Wyatt filed their notices of appeal, the provisions of NMSA 1978, Crim.P.Rule 54 (Repl.Pamp.1980) were in effect. Rule 54 required the district court to advise a defendant of the right to appeal and to proceed at state expense if unable to pay the fees incurred in an appeal. In addition, the rule provided that failure to so advise a defendant tolled the time allowed for taking an appeal. This rule by its terms applied to all defendants, although subsequent amendments restricted its application to felony cases only. See NMSA 1978, Crim.P.R. 54 (Cum.Supp.1984).
The hearing on the order to show cause why respondents should not be held in contempt was in effect a trial on a plea of not guilty to a contempt charge. In re Doe, 99 N.M. 517, 660 P.2d 607 (Ct.App.1983). The record of the hearing does not indicate that officers Wisniewski and Wyatt were advised of the right to proceed as indigents. Under the former provisions of Rule 54, the time for taking the officers' appeal was tolled and their appeals were therefore properly considered by the Court of Appeals.
The activities which resulted in the contempt citations took place during the course of a criminal prosecution. In this underlying case, defendant Jeff Jasper was charged with two counts of aggravated assault on a peace officer and one count of aggravated battery. These charges arose out of a high-speed chase on October 2, 1982. The prosecution maintained that Jasper attempted to collide with two police cars and intentionally rammed a third unmarked police unit. All police radio communications relating to the chase were recorded by the central dispatcher.
After unsuccessfully attempting to obtain the tape recording, defendant filed a pretrial motion for disclosure under Crim.P.Rule 27 requesting copies of all tape recordings of police radio communications relating to the chase. The district court granted the motion and entered an order requiring production of certain materials requested in the motion, including the tape. During the following month defense counsel initiated a number of requests for the tape to respondent Walker, who was then prosecuting the case. The tape was not forthcoming. Defense counsel was eventually informed by Walker that, according to information Walker had received from the police department, the tape had been erased. The tape of the chase incident had in fact been preserved in the police radio room by a dispatcher pursuant to a request from an officer Grant.
The police department policy for preserving dispatch tapes was established by officer Wyatt and was rather informal. Essentially, the department maintained a core of 31 dispatch tapes. A new tape was placed on the central dispatch recorder each day, the tape number corresponding to the particular day of the month. After recording the communications of the day, each tape was typically placed in numerical rotation and preserved for 30 days, whereupon it was erased and re-recorded. Specific tapes selected for preservation by an officer or the dispatcher were taken out of this monthly rotation and replaced from a small pool of spare tapes. The preserved tapes were not indexed but were filed on a shelf in the radio room set aside for this purpose. These procedures had never been committed to writing and were not widely known throughout the department. Nevertheless, aside from officer Grant and the dispatcher, officer Wyatt also knew that the October 2 tape had been preserved.
Two weeks prior to trial, defense counsel again requested that Walker produce the discovery previously ordered by the district court, and further verify the previous representations that the tape in question had been erased. The evidence is somewhat conflicting as to the nature of communications between Walker and the police department. Walker maintained that he had spoken with officer Wyatt who indicated the tape had been destroyed. Officer Wyatt maintained that he knew the tape had been preserved and knew its whereabouts but could not recall any request by Walker for the recording.
In any event, the day before trial was to begin the tape still had not been produced. At that time, Mr. McCormick, who had taken over the prosecution of the case from Walker, took the outstanding discovery order to the police department. Walker and officer Wisniewski unsuccessfully attempted to locate the tape. However, the recording was eventually located on the radio room shelf by Grant, the officer who had originally requested that the tape be preserved. The tape was then produced in open court but not before both sides had rested. The district judge therefore allowed the defense to reopen its case to disclose this new evidence. The contents of the tape suggested that officers may have attempted to use police cars to block defendant Jasper's path and thus that defendant may not have intended to ram the police vehicles involved. The defendant was acquitted of all assault and battery charges.
Following a show cause hearing, the district court concluded that each of the four respondents should be held in contempt for failure to comply with the requirements imposed by the Rules of Criminal Procedure and the court's discovery order.
The Court of Appeals concluded that the district court had no authority under the Rules of Criminal Procedure to impose contempt for negligent non-compliance with discovery obligations set forth by the Rules.
Crim.P.Rule 27(g) provides that where the State fails to disclose certain information within ten days of arraignment, the district court may "enter an order pursuant to Rule 30 or hold the prosecutor in contempt or take other disciplinary action pursuant to Rule 52 of these rules." Under NMSA 1978, Crim.P.Rule 52 (Repl.Pamp.1980), an attorney who "wilfully fails to observe the requirements of these rules, including prescribed time limitations, may be held in contempt of court and subject to disciplinary action." The use of the disjunctive in Rule 27 clearly indicates that three distinct avenues are open to the district court where the State does not produce discovery as required. Following a course under Rule 52 is but one option. Rule 27(g) by its express terms does not bind the district court to the limitations on the exercise of contempt power imposed by Rule 52.
Similarly, NMSA 1978 Crim.P.Rule 30 (Repl.Pamp.1980)--the first option available to the district court under Rule 27(g)--does not provide that the district court's powers to enforce compliance with discovery rules fall exclusively within the province of Rule 52. Under Rule 30(b), where any party has failed to comply with its continuing duty of disclosure, the district court may "enter such other order as it deems appropriate under the circumstances, including but not limited to holding an attorney in contempt of court pursuant to Rule 52 of these rules." (Emphasis added). Under Rule 30(b), the district court's exercise of its contempt powers is expressly not limited to those instances where exercise of contempt powers under Rule 52 would be proper.
That Rule 30(b) does not limit the district court's exercise of contempt powers to wilful violations is consistent with the...
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