August 22, 2017- State of New Mexico v. Pedro Cazares aka Pedro Luis Casares, No. 34,387

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	AUGUST 22, 2017
No. 34,387
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
PEDRO CAZARES, a/k/a
PEDRO LUIS CASARES,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Judith K. Nakamura, District Judge
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellant
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellee

OPINION
ZAMORA, Judge.
{1} 	The State appeals from the district court’s order excluding witnesses resulting
in the dismissal of the case. This order was entered because of discovery rule
violations by the State. The exclusion included the State’s witnesses that Defendant
requested to interview, but had not been given the opportunity to interview before the
district’s scheduling deadline. Defendant’s motion to dismiss was granted once the
State conceded it could not proceed to trial without the excluded witness testimony.
We affirm the district court’s order.
BACKGROUND
{2} 	Defendant 	was 	charged 	with 	drug 	trafficking 	and 	possession 	of 	drug
paraphernalia. A scheduling order was entered on August 20, 2014, that set forth
various deadlines, including witness interviews to be conducted by October 24, 2014,
and substantive motions to be filed by November 7, 2014. The prosecutor filed a
“State’s Addendum Witness & Exhibit List” on August 27, 2014, listing eight law
enforcement officers and the names of three chemists. Of the three chemists listed by
the State, it was the chemist who analyzed the drugs, Manuel Gomez (Gomez) who
would be testifying at trial. On the same day, the prosecutor sent an email to defense
counsel stating, “Please provide me with dates and times that are convenient for you

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for witness interviews.” Defense counsel responded by providing three dates of
availability 	in 	September 	for 	interviews, 	and 	stated, 	“Please 	let 	me 	know,
immediately, when the interviews are scheduled or if these dates don’t work.” The
prosecutor subsequently informed defense counsel that “witness interviews” were
scheduled for September 23, 2014. Only two officers appeared for interviews on that
date. Defense counsel made another request to schedule interviews for the remaining
nine witnesses. The interviews were scheduled for October 14, 2014, at which only
two more officers appeared.
{3} 	Gomez did not show up on either September 23, 2014 or October 14, 2014. On
October 16, 2014, defense counsel informed the prosecutor that she was only available
on October 21, 2014, for the remaining interviews because she was going to be on
vacation after that date. The prosecutor informed defense counsel that a telephonic
interview with Gomez would be set up for that date. On October 17, 2014, the
prosecutor discovered that Gomez would be out of town and would not be available
to be interviewed; however, he did not pass along this information to defense counsel.
The prosecutor never sought an extension of the district court’s interview deadline.
The State asserts that emails were sent to defense counsel one day before the deadline
on October 23, 2014, and one week after the deadline had passed on October 30, 2014.
The prosecutor received no response from defense counsel to his emails.

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{4} 	On October 31, 2014, defense counsel filed a motion to exclude witnesses from
the State’s list who were not made available to be interviewed before the district
court’s October 24, 2014 deadline. Defense counsel stated that Defendant was
prejudiced due to an inability to conduct witness interviews and prepare substantive
motions prior to a court ordered deadline of November 7, 2014. The prosecutor
claimed that it made a good faith effort to comply with the court deadlines, and any
violation of the district court’s order was not intentional.
{5} 	A hearing was held on December 2, 2014. At that hearing the district court
specifically asked the prosecutor why the district attorney’s office did not set up an
interview for Gomez with the first interviews scheduled for September 23, 2014. The
prosecutor informed the court that a chemist’s interview is typically set up last,
because the interviews with law enforcement officers give the State a sense of the
sufficiency of its evidence, or the strengths and weaknesses of the State’s case, and
whether there is a possibility of reaching an agreement in a case. The prosecutor also
stated that, since the “trial [was] not scheduled until April[2015 he] relaxed a little
bit.” It was also revealed during the motion hearing that while three chemists had been
identified and because Defendant had not received the drug analyst’s report, defense
counsel did not know if one or all three chemists would actually be testifying. The
district court entered an order excluding those witnesses that had not been interviewed

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and ultimately dismissed the case. The State appeals. On appeal, the State informs this
Court that of the witnesses excluded under the district court’s order, only Gomez, the
chemist, would have been called to testify at trial.
DISCUSSION
{6} 	It is within a trial court’s discretion to impose sanctions for violation of a
discovery order when the violation results in prejudice to the opposing party. State v.
Bartlett, 1990-NMCA-024, ¶ 4, 109 N.M. 679, 789 P.2d 627. To determine whether
imposition of the sanction of excluding witnesses was proper in this case, we must
look at: (1) the culpability of the State, (2) the prejudice to Defendant, and (3) the
availability of lesser sanctions. See State v. Le Mier, 2017-NMSC-017, ¶ 15, 394 P.3d
959 (citing to State v. Harper, 2011-NMSC-044, ¶ 15, 150 N.M. 745, 266 P.3d 25).
Our Supreme Court clarifying Harper proclaimed that these applicable standards are
not “so rigorous” that a trial court may only impose sanctions for discovery violations
that are “egregious, blatant, and an affront to their authority.” Le Mier, 2017-NMSC-
017, ¶ 16. Rather, in order to promote efficiency, manage its docket, and ensure that
judicial resources are not wasted, a court may impose “meaningful sanctions where
discovery orders are not obeyed and a party’s conduct injects needless delay into the
proceedings.” Id. ¶¶ 16, 19. Our Supreme Court further articulated that “our courts are
encouraged to ensure the timely adjudication of cases, to proactively manage their

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dockets, and to utilize appropriate sanctions to vindicate the public’s interest in the
swift administration of justice.” Id. ¶ 29.
{7} 	The district court has broad discretionary power to impose sanctions for
discovery violations, and there is no abuse of that discretion unless the court’s ruling
is “clearly against the logic and effect of the . . . circumstances of the case[,]” and not
justified by reason. Id. ¶ 22. “In reviewing the district court’s decision, [appellate
courts] view[] the evidence . . . and all inferences . . . in the light most favorable to the
district court’s decision.” Id. We now turn to the considerations set out in Harper and
quantified by Le Mier.
Culpability of the State
{8} 	By entering the scheduling order with the requisite deadlines, the district court
was exercising its authority to ensure the timely adjudication of the case and was
proactively managing its docket. See Le Mier, 2017-NMSC-017, ¶ 29. The scheduling
order with the appropriate deadlines was clear and unambiguous. The prosecution’s
failure to: (a) follow the clear and unambiguous witness-interview deadline, (b) seek
an extension of that deadline, (c) identify the witnesses it actually intended to call at
trial, and (d) ensure defense counsel was provided with a copy of the drug analyst’s
report, is more than enough proof of the State’s culpable conduct.

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{9} 	Immediately following the filing of the amended witness list by the State,
defense counsel made attempts to interview all of the witnesses on the list. She made
herself available to conduct interviews on three separate dates. When only four of the
eight officers and none of the three chemists appeared for the interviews set on
September 23, 2014 and October 14, 2014, defense counsel once again made herself
available for witness interviews before the discovery deadline. Unbeknownst to
defense counsel, Gomez was a critical witness for the State’s case against Defendant.
However, the State specifically failed to schedule an interview with Gomez for either
of those dates.
{10} 	The prosecutor apprised the district court that the witness list included every
possible witness, but explained that the witnesses “gradually either come in for the
interview or eliminate themselves.” For example, two Homeland Security officers
were difficult to schedule because of their positions, and two deputies said they had
nothing to do with the case. Despite knowing that some of the original eleven
witnesses listed by the State would not be called to testify at trial, the prosecutor did
not file an amended witness list at any time. It was not until the motion hearing that
the State conceded that the only witnesses that needed to be interviewed were the four
that defense counsel had already interviewed and Gomez.

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{11} 	The prosecutor contended that he made a good faith effort to reschedule an
interview with Gomez, and “made attempts to comply with the court imposed
deadlines.” Although the prosecution worked with defense counsel to schedule
Gomez’s telephonic interview on October 21, 2014, the State knew as of October 17,
2014, that Gomez was not available on October 21, 2014. However, the prosecutor
failed to inform defense counsel until October 21, 2014. It was not until October 23,
2014, two days after the cancellation of Gomez’s telephonic interview, and one day
before the witness-interview deadline, that the State made an attempt to contact
Gomez and defense counsel to reschedule the interview. He then waited another week,
well after the deadline had passed and while defense counsel was on vacation, to send
another email to attempt to reschedule the interview.
{12} 	In the State’s response to Defendant’s motion to exclude witnesses, the
prosecutor disingenuously states that he “attempted to reschedule the interview with
[Gomez] but did not receive a response from defense counsel.” When asked by the
district court if there was a reason why the State did not seek an extension of the
deadline, 	the 	prosecutor 	did 	not 	provide 	an 	explanation. 	See 	Harper,
2011-NMSC-044, ¶ 22 (stating that where the state assumed responsibility of
scheduling interviews with witnesses, the state had an obligation to follow through in
good faith). Additionally, the State admitted that it delayed scheduling Gomez for an

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interview because of the internal policy of the district attorney’s office and he
“relaxed” because the trial date was approximately four months away.
Prejudice to Defendant
{13} 	As of the deadline for witness interviews, even though defense counsel
provided a number of dates that she would be available, she had been able to interview
only four witnesses out of eleven witnesses on the State’s list. In particular, defense
counsel was not able to interview Gomez, a witness critical to the State’s case. As a
result of the State’s actions and inactions, defense counsel was unable to interview
Gomez in a timely fashion and could not comply with some of the existing deadlines
for filing substantive motions—particularly fact specific motions pertaining to several
of the State’s witnesses who had not been interviewed and the drug analysis report
that had not been received. See id. ¶ 19 (noting that delayed disclosure results in
prejudice when the delay prevents defense counsel from effectively preparing and
presenting the defendant’s case); see also Le Mier, 2017-NMSC-017, ¶ 25 (“When a
court orders a party to provide discovery within a given time frame, failure to comply
with that order causes prejudice both to the opposing party and to the court.”).
{14} 	It is important to note that since defense counsel was not provided with the drug
analyst’s report, she had no information as to which chemist prepared the report or
what information to review in preparation of the chemist’s interview. Although the

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prosecutor stated that defense counsel was provided with a copy of the drug analyst’s
report, he did not have an email receipt and the discovery receipt for the report was
not signed, indicating that it was never received by defense counsel.
{15} 	The State sidestepped its responsibility to comply with the scheduling order and
is now suggesting that it was Defendant’s responsibility to file a request for “a brief
extension of the pretrial deadlines” to allow for time to interview Gomez and to be
able to file a motion based on the interview without delaying the trial, which was
scheduled “four months away when the [district] court dismissed the case.” The State
did not make such a suggestion to the district court, and the district court was not
required to sua sponte conceive of a means of alleviating the prejudice caused by the
State’s discovery violations. Cf. State v. Martinez, 1998-NMCA-022, ¶ 13, 124 N.M.
721, 954 P.2d 1198 (noting that, while a continuance might resolve prejudice to the
moving party, the district court is not required to “cure” a discovery violation by
continuing a trial (internal quotation marks and citation omitted)). The State neither
has the authority, nor is in a position to delegate its responsibility to follow the clear
and unambiguous scheduling order issued by the district court. Blaming defense
counsel in this case was not warranted. The State recognized and accepted the
deadlines imposed by the district court, only to fail to comply with them and expend

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the court's time and judicial resources to address those failures. See Le Mier, 2017-
NMSC-017, ¶ 26.
Availability of Lesser Sanctions
{16} 	Defendant argues that the State failed to properly preserve the issue of “whether
the district court’s discovery sanction is too severe” because the State did not request
a lesser sanction. The State does not argue that the district court should have imposed
a lesser sanction, but instead argues that it was an abuse of discretion to sanction the
State by excluding Gomez as a witness. Nonetheless, the district court found that it
had considered lesser sanctions and determined that exclusion was the appropriate
remedy. No argument regarding the consideration of lesser sanctions has been made
to this Court, therefore we will not consider it. See Elane Photography, LLC v.
Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (holding that appellate courts will not
raise or guess at a party’s arguments); cf. Le Mier, 2017-NMSC-017, ¶ 27 (stating that
the court is not required to consider every possible lesser sanction before deciding on
witness exclusion; the court is only required to determine the least severe sanction for
the situation that accomplishes the desired result).

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CONCLUSION
{17} 	The State’s disregard of the district court’s order was appropriately addressed
by the district court with its sanction of excluding the witnesses testimony, resulting
in the dismissal of the case, thereby “ensur[ing] . . . the [district] court’s authority to
efficiently administer the law and . . . compliance with its orders[.]” Le Mier, 2017-
NMSC-017, ¶ 29. The State took on the responsibility of scheduling interviews, but
failed to ensure that all listed witnesses would attend the interviews, failed to inform
defense counsel that most of the witnesses would not be called at trial, delayed
scheduling an interview for a critical witness until the deadline was looming, and then
failed to inform defense counsel until the date of the interview that the critical witness
was unavailable. Additionally, the State did not adequately provide defense counsel
with the drug analyst’s report.
{18} 	The State attempted to partially excuse its behavior by referring to an internal
policy of delaying interviews for certain witnesses in order to assess the strength of
the case based on any other interviews. The prosecutor’s decision not to be diligent
with his discovery obligations because the trial was four months away was a reckless
rationale for failing to abide by the district court’s ordered discovery deadline. The
State’s conduct resulted in prejudice to Defendant and to the district court. The
decision to impose the sanction of exclusion of the State’s witnesses is not clearly

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against the logic and effect of the circumstances in this case. The district court did not
abuse its discretion in excluding all non-interviewed witnesses, and in particular
Gomez, or by ultimately dismissing the case.
{19} 	For the foregoing reasons, we affirm the district court’s order.
{20} 	IT IS SO ORDERED.
M. MONICA ZAMORA, Judge
I CONCUR:
STEPHEN G. FRENCH, Judge
TIMOTHY L. GARCIA, Judge (specially concurring).

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GARCIA, Judge (specially concurring).
{21} 	I write to specially concur with the result reached by the majority but disagree
with various negative references used by the majority regarding the prosecutor’s
decisions and behavior in this case. See Majority Opinion ¶¶ 12, 17-18. Clearly the
State took a risk by allowing the interview deadline to pass without having Gomez
interviewed by defense counsel. However, this occurred with over four months
remaining before trial—enough time for the district court to take action to rectify the
error and resolve any prejudice to Defendant prior to trial.
{22} 	I consider the State’s failure to ask the district court to extend the original
interview deadlines or impose a less severe sanction to eliminate any pretrial prejudice
to Defendant as the critical errors in this case. This tactical decision proved to be fatal
to the State’s position. Clearly the district court had the discretion and responsibility
to consider and impose a less severe sanction against the State. See Harper, 2011-
NMSC-044, ¶¶ 16, 20-27. Without even requesting that the district court consider
other options or less severe sanctions, the majority is correct—the district court did
not 	abuse 	its 	discretion 	in 	this 	particular 	case 	by 	imposing 	a 	more 	severe
sanction—excluding 	testimony 	by 	the 	State’s 	witnesses 	who 	had 	not 	been
interviewed, specifically Gomez.

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{23} 	Without adopting all the language and reasoning used by the majority, I
specially concur with the decision to affirm the district court’s order.
__________________________________
TIMOTHY L. GARCIA, Judge