January 24, 2017- State v. Armando Navarro-Calzadillas, No. 34,667

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: January 24, 2017
NO. 34,667
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
ARMANDO NAVARRO-CALZADILLAS,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jacqueline D. Flores, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellant
Garcia Ives Nowara
Zachary A. Ives
Molly Schmidt-Nowara
Albuquerque, NM
for Appellee

1Pursuant to Supreme Court Order No. 16-8300-015, former LR2-400 (2014)
was recompiled and amended as LR2-308 NMRA, effective December 31, 2016.
OPINION
HANISEE, Judge.
{1} 	The State appeals from the district court’s April 2, 2015 order granting
Defendant Armando Navarro-Calzadillas’s motion to exclude witnesses. Because this
matter is governed by the special calendar portion of LR2-400 NMRA (2014)1 , the
case management pilot rule in the Second Judicial District Court (the local rule), see
LR2-400(L) (2014); LR2-400.1 NMRA, and given this Court’s concerns with
reconciling the requirements of the local rule with Supreme Court precedent that
places limitations on the district court’s discretion, we certified this matter to our
Supreme Court. The Supreme Court quashed certification and directed our attention
to specific language contained in LR2-400(A) (2014), adding that “the Court is
confident that the Court of Appeals is fully capable of applying this Court’s textual
direction in . . . that prior procedural precedents apply to cases governed by the [local]
rule only ‘to the extent they do not conflict with’ [the local rule.]” Having now
examined applicable provisions of the local rule alongside the clear directives of State
v. Harper, 2011-NMSC-044, ¶ 16, 150 N.M. 745, 266 P.3d 25 (requiring a trial
court’s consideration of lesser sanctions in certain circumstances), we reverse.

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BACKGROUND
{2} 	Defendant was indicted on March 19, 2014, on charges of criminal sexual
penetration in the first degree and criminal sexual contact of a minor in the third
degree. On April 11, 2014, Defendant was arraigned and released on his own
recognizance. A status conference was held on December 8, 2014, and case-related
deadlines were set. Although no formal scheduling order was issued, the parties agree
that the pretrial witness interview deadline was February 13, 2015.
{3} 	On February 24, 2015, the State filed a motion to extend the pretrial witness
interview deadline until March 13, 2015. The State asserted that it had good cause in
seeking additional time, given the late disclosure of the name of the alleged victim’s
therapist and difficulties scheduling witness interviews. The district court, however,
denied the State’s motion, concluding that no good cause existed to extend the district
court’s previously scheduled deadline.
{4} 	Following the district court’s ruling, Defendant filed a motion to exclude
witnesses. According to the allegations contained in Defendant’s motion to exclude,
defense counsel had asked the prosecutor about setting up witness interviews at a
status conference on August 27, 2014, and via e-mail on October 28, 2014, November
6, 2014, and November 11, 2014. On November 12, 2014, the prosecutor responded
that he still needed to talk to the alleged victim and her parents about the case. The

3
parties met on November 21, 2014, and defense counsel asserts that she then, again,
requested interviews.
{5} 	Shortly thereafter, interviews were scheduled to take place on January 15, 2015.
Interviews of the two investigating officers were planned for the morning, and the
alleged victim’s family members were to be interviewed at 3:30 p.m. One of the
officers was interviewed that morning; the other officer did not appear for the
interview due to illness. Because the alleged victim’s family members were running
late and defense counsel indicated she could not wait long, the afternoon interviews
were cancelled. The alleged victim was not scheduled to be interviewed on January
15, 2015.
{6} 	Interviews were rescheduled for February 12, 2015, based on the alleged
victim’s father’s availability, which was limited to Thursday afternoons. Defense
counsel did not appear for the scheduled interview of the remaining officer and
asserted that the interview had been improperly calendared at her office. While the
interviews of the alleged victim’s family occurred that afternoon, an interview with
the alleged victim had still not been scheduled. The deadline to complete witness
interviews was the following day. The State filed its above-mentioned motion to
extend the deadline for completing the witness interviews, which the district court
denied. Acting pursuant to the special calendar rule, and given that witness interviews

2We note that the case management pilot rule that was promulgated by the
Supreme Court contains an identical provision, stating that existing case law on
criminal procedure continues to apply barring some conflict with the local rule. Here,
the special calendar rule was promulgated by the Second Judicial District Court, and
while our district courts would not generally possess such authority, the special
calendar rule was promulgated at the direction of, and largely tracks, the case
management pilot rule enacted by Supreme Court order.
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were not complete, the district court granted Defendant’s motion to exclude those
witnesses that had yet to be interviewed. The State appeals.
DISCUSSION
{7} 	The State raises three issues on appeal relating to the district court’s exclusion
of its witnesses. To resolve this appeal, this Court must reconcile any conflicts
between the provisions of the special calendar rule and pre-existing case law
governing the district court’s discretion in excluding witnesses. For the purpose of this
opinion, we assume without deciding that the textual directive contained in the special
calendar rule can do what it purports to do and overcome existing and conflicting case
law on criminal procedure.2 We therefore begin with a discussion of the requirements
of the special calendar rule, and then turn to restrictions on the district court’s exercise
of discretion established by case law, before determining whether a conflict exists.
I. 	Special Calendar Rule
{8} 	The local rule creates clear and limited time frames for the progression of
criminal cases in the Second Judicial District Court. The provisions of the local rule,

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which was amended in 2016, see LR2-400 NMRA (2014) (recompiled and amended
as LR2-308 NMRA), require that cases filed in the Second Judicial District Court after
June 30, 2014, are subject to the requirements of the local rule, while cases filed on
or before June 30, 2014, are placed on a special calendar. See LR2-400(L) (2014). The
time frames and requirements of the special calendar were established by an order of
the Second Judicial District Court and are found in LR2-400.1. Given that Defendant
was indicted on March 19, 2014, this case is subject to the requirements of the special
calendar rule. See LR2 400(L) (2014). While the special calendar rule tracks, in large
part, the provisions of the local rule, LR2-400.1 contains some notable distinctions for
dealing with older, and perhaps more complex, cases.
A. 	Discovery Provisions
{9} 	Pursuant to the special calendar rule, the parties are required to make available
all discovery required by Rule 5-501(A) NMRA within ten days of the February 2,
2015 effective date for the rule, unless already disclosed. LR2-400.1(D). In addition
to disclosures required by Rule 5-501(A), the parties are required to provide “phone
numbers and e-mail addresses of witnesses if available, copies of documentary
evidence, and audio, video, and audio-video recordings made by law enforcement
officers or otherwise in possession of the state, and a ‘speed letter’ authorizing the
defendant to examine physical evidence in the possession of the state.” LR2-
400(D)(1) (2014). The special calendar rule defines evidence in possession of the state

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to include “[e]vidence in the possession of a law enforcement agency or other
government agency[.]” LR2-400.1(D)(3). The special calendar rule allows a party to
request to “withhold specific contact information if necessary to protect a victim or
a witness.” LR2-400.1(D)(1). However, “the party seeking the order shall arrange for
a witness interview or accept at its business offices a subpoena for purposes of
deposition[.]” LR2-400.1(D)(1). Pursuant to the special calendar rule, the district court
must impose sanctions for discovery violations. LR2-400.1(D)(4) (“If either party fails
to comply with any of the provisions of this section, the 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 against
either the attorney or the attorney’s agency, or any other sanction deemed appropriate
by the court.” (emphasis added)).
B. 	Deadlines and Extensions
{10} 	Pursuant to the special calendar rule, the deadlines for cases are established by
a scheduling order that takes into consideration the following: “the complexity of the
case”; “whether the defendant is in custody, provided custody weighs in favor of
shorter deadlines, regardless of the complexity of the case”; “length of time the case
has been pending”; “whether the case is presently ready for trial”; and “the availability
of trial dates on the [c]ourt’s docket.” LR2-400.1(I)(3). A scheduling conference is
required to be held within 120 days of the special calendar rule’s February 2, 2015

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effective date, LR2-400.1(I), and a scheduling order is required to be entered within
ten days of the scheduling conference. See LR2-400.1(J). Because the special calendar
governs cases that were pending for over seven months prior to enactment of the rule,
the special calendar rule contains a provision that allows the parties to stipulate to a
previously entered scheduling order or to submit a stipulated scheduling order for
approval by the district court. See LR2-400.1(J)(1). The deadlines contained in the
scheduling order can be extended “[f]or good cause shown . . . for a period of
twenty . . . days, so long as the extension does not result in an extension of the trial
date.” LR2-400.1(J)(3). “If 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, such as suppression, exclusion, dismissal, monetary
sanctions against either the attorney or the attorney’s government agency, or any other
sanction deemed appropriate by the [c]ourt.” LR2-400.1(J)(4) (emphasis added). An
extension of the trial date of no more than forty-five days is only permitted upon a
“showing of good cause which is beyond the control of the parties or the court.” LR2-
400.1(P). Any further extensions must be supported by exceptional circumstances and
approved by the chief judge of the Second Judicial District Court; otherwise, if the
trial cannot be held on the date scheduled, dismissal with prejudice is required. See
LR2-400.1(P).

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II. 	Limitations on the District Court’s Exercise of Discretion
{11} 	As noted above, the special calendar rule requires sanctions for violations of
discovery obligations, see LR2-400.1(D)(4), and violations of deadlines established
in the scheduling order, see LR2-400.1(J)(4). While sanctions are mandatory under
the special calendar rule, the type of sanction is left to the discretion of the district
court judge to determine what is appropriate in the given circumstance. Although the
special calendar rule provides examples of the type of sanctions available, including
the exclusion of witnesses, our New Mexico Supreme Court has placed limitations on
the district court’s ability to exclude witnesses absent clear criteria.
{12} 	In Harper, our Supreme Court held that “the exclusion of a witness is improper
absent an intentional refusal to comply with a court order, prejudice to the opposing
party, and consideration of less severe sanctions[.]” 2011-NMSC-044, ¶ 15. In
reaching this determination, our Supreme Court noted that “[a] court has the discretion
to impose sanctions for the violation of a discovery order that results in prejudice to
the opposing party” but that “[e]xtreme sanctions such as dismissal are to be used only
in exceptional cases.” Id. ¶ 16 (internal quotation marks and citation omitted). Our
Supreme Court pointed out that “[t]he trial court should seek to apply sanctions that
affect the evidence at trial and the merits of the case as little as possible.” Id.
(alteration, internal quotation marks, and citation omitted). Moreover, our Supreme
Court stated that “the refusal to comply with a district court’s discovery order only

9
rises to the level of exclusion or dismissal where the [s]tate’s conduct is especially
culpable, such as where evidence is unilaterally withheld by the [s]tate in bad faith,
or all access to the evidence is precluded by [s]tate intransigence.” Id. ¶ 17. And, that
“even when a party has acted with a high degree of culpability, the severe sanctions
of dismissal or the exclusion of key witnesses are only proper where the opposing
party suffered tangible prejudice.” Id. ¶ 19; see id. ¶ 16 (stating that “[p]rejudice must
be more than speculative; the party claiming prejudice must prove prejudice—it is not
enough to simply assert prejudice”). Finally, our Supreme Court stated that “prejudice
does not accrue unless the evidence is material and the disclosure is so late that it
undermines the defendant’s preparation for trial.” Id. ¶ 20. Therefore, to reiterate,
Harper requires that in order for the district court to exclude material witnesses there
must be: (1) “an intentional refusal to comply with a court order,” (2) “prejudice to the
opposing party,” and (3) “consideration of less severe sanctions[.]” Id. ¶ 15. It is the
latter requirement on which we focus our attention herein.
III. 	No Conflict Exists Under Specific Facts of This Case
{13} 	Having considered the provisions of the special calendar rule and the
requirements of Harper, we conclude that under the facts of the present case no
conflict is presented and, therefore, Harper still limits the district court’s ability to
exclude witnesses. In reaching this determination, we do not disregard the special
calendar rule’s requirement that sanctions be imposed for failure to comply with the

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time requirements of the special calendar rule. See LR2-400.1(J)(4). However, we
note that a lesser sanction was still available to the district court—namely, dismissal
without prejudice. Thus, we conclude that when the district court has a course of
action before it that allows it to choose a sanction other than exclusion of witnesses
that will still remedy the violation and, therefore, comply with the special calendar
rule, under those circumstances a conflict between the special calendar rule and
Harper does not exist.
{14} 	Defendant contends that the conflict between Harper and the new case
management provisions runs much deeper, as the two represent fundamentally
different approaches. Defendant argues that “[b]y requiring sanctions for every
discovery violation . . . the special calendar rule conflicts with all statewide rules of
criminal procedure and existing case law.” (Emphasis added.) Defendant points out
that prior to the implementation of these new case management rules in the Second
Judicial District Court, the imposition of sanctions was discretionary, and the exercise
of that discretion was curtailed by “rigid” case law. Defendant contends that the
special calendar rule is intended to be much more flexible and provide the district
court with broader discretion in imposing sanctions.
{15} 	While 	Defendant 	offers 	one 	interpretation 	of 	the 	breadth 	of 	the 	case
management provisions found in the local rule and special calendar rule, we decline
to take such an approach in reconciling the new requirements in the Second Judicial

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District with prior case law. In applying the textual directive contained in the local
rule and LR2-400.1(A), we remain acutely aware of our role as an intermediate
appellate court. When we must choose between an approach that would upend
Supreme Court case law, such as Harper, and possibly, as Defendant argues, “all
statewide rules of criminal procedure and existing case law,” and an approach that
allows us to continue to apply both Supreme Court precedent and the new case
management provisions, in an abundance of caution we will choose the latter.
(Emphasis added.) Thus, we interpret the special calendar rule’s use of broad strokes
in discussing sanctions to allow for the continued application of Harper where a lesser
sanction can still remedy the prejudice caused by the failure to comply, rather than
declare Harper inapplicable in only the Second Judicial District Court.
{16} 	Because we conclude that Harper still applies under the circumstances of this
case, we also hold that the district court abused its discretion in excluding witnesses
without first ensuring that the Harper criteria were met. Defendant reminds us that our
review of the district court’s imposition of sanctions is for an abuse of discretion, and
that, in order to reverse, we must conclude that the district court’s sanction order was
“clearly against the logic and effect of the facts and circumstances of the case” and
“clearly untenable or not justified by reason.” See Wilde v. Westland Dev. Co., 2010-
NMCA-085, ¶ 30, 148 N.M. 627, 241 P.3d 628 (internal quotation marks and citation
omitted). Defendant reminds us also that this is a highly deferential standard and that

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we presume correctness in the district court’s rulings. While Defendant is correct in
his recitation of our standard of review, Harper makes clear what constitutes an abuse
of discretion in this context. 2011-NMSC-044, ¶ 27 (“Under the circumstances of this
case, failure to impose a less severe sanction, together with the lack of any proof of
prejudice to [the defendant] or an intentional refusal to obey the district court’s
discovery directive, constituted an abuse of discretion.”). According to Harper,
“exclusion of witnesses requires an intentional violation of a court order, prejudice
to the opposing party, and consideration of less severe sanctions[.]” Id. ¶ 2 (emphasis
added). Given that the district court did not ensure that these criteria were met, we
conclude that the district court abused its discretion. See N.M. Right to Choose/NARAL
v. Johnson, 1999-NMSC-028, ¶ 7, 127 N.M. 654, 986 P.2d 450 (“[W]e may
characterize as an abuse of discretion a discretionary decision that is premised on a
misapprehension of the law.” (alteration, internal quotation marks, and citation
omitted).
{17} 	Finally, while we rely on the availability of dismissal without prejudice as a
means by which the district court may remedy the harm caused by the state’s failure
to comply with the requirements of the special calendar rule, and adhere to Harper,
we have not concluded that this is the only course of action available to the district
court. We therefore reverse the district court’s order excluding witnesses because the
district court does not appear to have considered the Harper criteria in rendering its

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decision, but leave open the possibility under 	Harper 	that the district court
may—under the facts of this case—fashion an appropriate lesser sanction that
remedies the harm caused by the state’s action and acts to deter future violations by
the state—which may include, among other possibilities, dismissal without prejudice.
{18} 	Defendant asserts that dismissing the case without prejudice as a sanction
results in additional prejudice to Defendant because it “start[s] the entire process over
from the beginning with yet another grand jury proceeding, likely followed by pretrial
discovery and motion practice.” Defendant also asserts that utilizing dismissals
without prejudice as a sanction, rather than exclusion, will provide an incentive for
prosecutors to miss deadlines in an attempt to get a new judge or in an attempt to get
more time. We note, however, that upon refiling the district court may issue a
scheduling order that provides for even less time than that allotted under LR2-400 to
complete 	discovery 	and 	pretrial 	motions. 	See 	LR2-308(G)(5) 	(“Additional
requirements may be included in the scheduling order at the discretion of the assigned
judge and the judge may alter any of the deadlines described in Subparagraph (G)(4)
of this rule to allow for the case to come to trial sooner.”). Thus, given the short time
constraints of the local rule and the ability of the district court to make those time
constraints even shorter, it is possible for cases to be dismissed without prejudice,
reindicted, and tried in less time than cases that were prosecuted prior to the enactment
of the local rule— satisfying both the purpose of the local rule and allowing

3We note that this avenue is curtailed to some degree by the revisions to the
local rule. See LR2-308(I)(4) (prohibiting the sanction of dismissal, with or without
prejudice, where “the state proves by clear and convincing evidence that the defendant
is a danger to the community” and “the failure to comply with th[e] rule is
caused by extraordinary circumstances beyond the control of the parties”).
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defendants to still avoid oppressive delay. To the extent Defendant contends that
prosecutors will use dismissals without prejudice to their advantage—to procure more
time or a different judge—prosecutors would be well-advised to avoid such behavior.
Not only would this establish intentional bad faith conduct on the part of the
prosecutor and satisfy at least one of the Harper criteria, but “[i]f the case has been
re-filed following an earlier dismissal, dismissal with prejudice is the presumptive
outcome for a repeated failure to comply with th[e] rule[.]” LR2-308(I)(2). Thus,
given the extreme restrictions on continuances contained in the local rule, a dismissal
without prejudice would permit new deadlines to be established, allowing Defendant
the opportunity to still have meaningful process by interviewing the witnesses against
him, while still serving as a warning to the State that further failures to adhere to the
requirements of the local rule may result in the State being barred from prosecuting
Defendant.3
{19} 	Based on the foregoing, we reverse the district court’s order excluding
witnesses and remand for consideration of the Harper criteria and imposition of an
appropriate sanction.

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{20} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge
WE CONCUR:
_________________________________
LINDA M. VANZI, Chief Judge
_________________________________
JULIE J. VARGAS, Judge