January 24, 2017- State v. Benjamin Seigling, No. 34620

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 24, 2017

NO. 34,620

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

BENJ AMIN SEIGLING,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Hector H. Balderas, Attomey General
Santa Fe, NM

for Appellant

Bennett J. Baur, Chief Public Defender
Becca Salwin, Assistant Appellate Defender
Santa Fe, 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. Any
reference to the current Rule in this opinion will be cited as LR2-308.
OPINION
HANISEE, Judge.
{1} 	The State appeals the district court’s March 11, 2015 order excluding witnesses
and suppressing evidence the State planned to present at Defendant Benjamin
Seigling’s trial for alleged separate acts of commercial burglary and larceny at Valley
High School in Albuquerque, New Mexico. The district court’s order was premised
on the case management pilot rule locally implemented by Supreme Court Order No.
16-8300-001 in Bernalillo County, LR2-400 NMRA (2014) 1 (the local rule). The local
rule permits, and often requires, sanctions based on the State’s failure to comply with
discovery and timeliness requirements contained therein. See LR2-400(D)(4), (I)
(2014).
{2} 	Called upon by this appeal to reconcile application of our Supreme Court’s
precedent limiting district courts’ discretion to sanction with the local rule’s language
that “existing case law on criminal procedure continue[s] to apply to cases filed in the
Second Judicial District Court, but only to the extent [it] do[es] not conflict with this
pilot rule[,]” LR2-400(A) (2014), this Court certified this matter to our Supreme
Court. But our Supreme Court quashed certification, stating that “the Court is

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confident that the Court of Appeals is fully capable of applying this Court’s textual
direction in LR2-400(A) that prior procedural precedents apply to cases governed by
the new procedural case management rule only ‘to the extent they do not conflict
with’ LR2-400[.]” Now having considered the text of the local rule alongside what we
perceive to be the non-conflicting mandates of prior New Mexico Supreme Court
decisions governing criminal procedure, we reverse the district court’s order
excluding the State’s witnesses and suppressing all audio and visual evidence.
{3} 	At the outset, we note that since the enactment of the original version of the
local rule on November 6, 2014, our Supreme Court has promulgated a revised
version altering various provisions and containing the same, identically worded non-
conflict provision. See LR2-308. Thus, all criminal cases filed or pending in the
Second Judicial District Court are subject to new case management deadlines based
on one of three currently existing rules. The amended version of the local rule is
effective for all cases pending or filed on or after February 2, 2016, in addition to any
cases filed prior to February 2, 2016, where the track assignment was not made until
February 2, 2016, or later. See LR2-308 (stating that “as amended by Supreme Court
Order No. 16-8300-001, effective for new cases filed and for pending cases in which
a track assignment is made on or after February 2, 2016”). The original version of the
local rule, which became effective on February 2, 2015, applies to this and all cases

3
filed with the district court between July 1, 2014, and February 2, 2016. See LR2-
308(B)(1) (stating that “[c]riminal cases filed on or after July 1, 2014,” shall be
assigned to the new calendar). Finally, cases filed before July 1, 2014, are subject to
a special calendar rule enacted by the Second Judicial District Court pursuant to the
requirements of the local rule. See LR2-400.1 NMRA (2015) (special calendar rule);
see also LR2-400(B)(1) (2014) (requiring implementation of special calendar rule);
LR2-308(B)(1) (same).
BACKGROUND
{4} 	Defendant was indicted on September 5, 2014. After the original version of the
local rule became effective on February 2, 2015, a scheduling conference was held on
February 16, 2015. Defendant had previously filed a motion to exclude witnesses
based, in large part, on the State’s refusal to assist in scheduling witness interviews
in the four months since Defendant had been arraigned. Defendant’s motion was
denied, and the case was assigned to Track 1 under the local rule. A scheduling order
was entered on February 20, 2015, and trial was scheduled for July 20, 2015, “within
180 days of the triggering event in this case.” The scheduling order set other deadlines
but did not denote a date by which the completion of witness interviews was required.
{5} 	On February 24, 2015, Defendant filed two motions. The first was a second
motion to exclude witnesses because Defendant’s counsel had subpoenaed four

2Rule 5-501(A) NMRA (2007), in effect during the four months prior to the
applicability of the local rule, requires production of these materials within ten (10)
days of arraignment.
4
officers via Albuquerque Police Department Court Services and only one appeared to
be interviewed. Defendant contended that two of the officers ignored the subpoena,
and one was on military leave. The State responded and offered to accept
responsibility for scheduling the officers’ interviews rather than having their
testimony excluded.
{6} 	The second motion Defendant filed was a motion to dismiss or, as a lesser
alternative sanction, to suppress based upon the State’s failure to comply with its
discovery obligations. That motion asserted that the State had not provided (1) lapel
recordings, (2) the detective’s first interview with Defendant, and (3) the detective’s
second interview with Defendant. Defendant argued that the State failed to satisfy the
new discovery requirements of the local rule, which requires the State to provide
documentary, audio, and video evidence at a defendant’s arraignment or within five
days of when a written waiver of arraignment is filed. See LR2-400(D)(1) (2014).2 To
this motion, the State responded that a speed letter was provided on November 21,
2014, “that would permit counsel’s access to this evidence for copying,” but stated
also that Defendant’s attorney was notified on March 4, 2015, that the recordings were
available to pick up from the district attorney’s office. The State added that due to the

3The district court’s form order indicates that Defendant’s motion to exclude
was granted and Defendant’s motion to dismiss was denied. But it was within his
motion to dismiss that Defendant sought suppression of all audio and video
evidence—relief the State maintains was granted orally by the district court.
Generally, we consider oral rulings only to the extent they do not conflict with written
rulings of the district court. See Enriquez v. Cochran, 1998-NMCA-157, ¶ 25, 126
N.M. 196, 967 P.2d 1136 (“Formal written orders filed of record normally supersede
oral rulings, and oral rulings cannot normally be used to contradict written orders.”);
see also State v. Morris, 1961-NMSC-120, ¶ 5, 69 N.M. 89, 364 P.2d 348 (“An oral
ruling by the trial judge is not a final judgment. It is merely evidence of what the court
had decided to do but he can change such ruling at any time before the entry of a final
judgment.”). Here, the form order appears to be ambiguous. In this Court’s calendar
notice we proposed to accept the State’s assertion in its docketing statement as true,
see State v. Calanche, 1978-NMCA-007, ¶ 10, 91 N.M. 390, 574 P.2d 1018 (stating
that the factual recitations in the docketing statement are accepted as true unless the
record on appeal shows otherwise), and directed Defendant to inform us if the State
was incorrect that the audio and video evidence had been suppressed. Given that
Defendant raised no challenge to this fact in his memorandum in opposition, we rely
on the State’s assertion.
5
lack of a pretrial interview deadline and the fact that the motions deadline was not
until May 29, 2015, there was no prejudice to Defendant.
{7} 	Following a hearing on March 11, 2015, the district court granted Defendant’s
motion to exclude witnesses and suppressed all audio and video evidence. The district
court entered a form order the same day. 3 The State appeals.
DISCUSSION
{8} 	The State raises six issues on appeal challenging the exclusion of witnesses and
the suppression of audio and video evidence. To resolve them, this Court must
reconcile any conflicts between the provisions of the local rule, pre-existing rules of

6
criminal procedure, and related case law governing the district court’s discretionary
use of such sanctions. We begin with a discussion of pertinent requirements of the
local rule, and then turn to restrictions on the district court’s exercise of discretion
established by case law. We conclude by examining the specific facts of this case.
I. 	The Local Rule’s Provisions
{9} 	The local rule creates clear and limited time frames for the progression of
criminal cases in the Second Judicial District Court. Both the original and amended
versions of the local rule contain specific requirements that govern the exchange of
discovery and the scheduling of various events that mark the progression of a criminal
case and contemplate the imposition of sanctions in the event the new discovery and
scheduling requirements are not adhered to.
A. 	Discovery Provisions
{10} 	Under the local rule, the State is required to make all initial disclosures
described in Rule 5-501(A)(1)-(6) NMRA “at the arraignment or within five (5) days
of when a written waiver of arraignment is filed[.]” LR2-400(D)(1) (2014); see also
LR2-308(D)(1) (same). Additional disclosures also then due include “phone numbers
and email 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

4But see LR2-308(D)(1) (amending the disclosure provision to require the state
to “provide addresses, and also phone numbers and email addresses if available, for
its witnesses that are current as of the date of disclosure” (emphasis added)).
5But see LR2-308(D)(4) (amending the definition of what is in the possession
of the state to “evidence [that] is in the possession or control of any person or entity
who has participated in the investigation or evaluation of the case” (emphasis
added)).
7
to examine physical evidence in the possession of the state.” LR2-400(D)(1) (2014). 4
The state may only withhold the requisite witness contact information if it first
“seek[s] relief from the court by motion, for good cause shown . . . if necessary to
protect a victim or a witness” and then must “arrange for a witness interview or accept
at its business offices a subpoena for purposes of [a] deposition under Rule 5-503
NMRA.” LR2-400(D)(2) (2014); see also LR2-308(D)(2) (same). The state is further
assigned “a continuing duty to disclose additional information to the defendant within
five (5) days of receipt of such information[.]” LR2-400(D)(3) (2014); see also LR2-
308(D)(3) (same). The continuing duty encompasses later-obtained evidence “in the
possession of a law enforcement agency or other government agency.” LR2-400(D)(3)
(2014).5
{11} 	The original version of the local rule states that the district court may sanction
the State if it violates these discovery provisions. Specifically, the local rule provides:
If the state fails to comply with any of the provisions of this rule, the
court 	may 	enter 	such 	order 	as 	it 	deems 	appropriate 	under 	the
circumstances, including but not limited to prohibiting the state from

6But see LR2-308(I) (governing the use of sanctions and replacing the language
previously set forth in LR2-400(D)(4) (2014) with that set forth in LR2-308(I)(1),
which provides that “[i]f a party fails to comply with any provision of this rule or the
time limits imposed by a scheduling order entered under this rule, the court shall
impose sanctions as the court may deem appropriate in the circumstances and taking
into consideration the reasons for the failure to comply” (emphases added)).
8
calling a witness or introducing evidence, holding the prosecuting
attorney in contempt with a fine imposed against the attorney or the
employing government office, and dismissal of the case with or without
prejudice. If the case has been re-filed following an earlier dismissal,
dismissal with prejudice is the presumptive outcome for a repeated
failure to comply with this rule.
LR2-400(D)(4) (2014).6
B. 	Scheduling Provisions
{12} 	Pursuant to the local rule, cases must be placed on one of three tracks (Track
1, Track 2, or Track 3), based on a consideration of the complexity of the case and the
number of witnesses and time needed to address evidentiary issues. See LR2-
400(G)(3) (2014); LR2-308(G)(3). The presumption, according to the local rule, is
that “most cases will qualify for assignment to [T]rack 1” and that “written findings
are required to place a case on [T]rack 3.” LR2-400(G)(3)(a), (c) (2014); see also
LR2-308(G)(3)(a)-(b) (same).
{13} 	To this end, the district court is required to issue a scheduling order that
“assigns the case to one of three tracks and identifies the dates when events required
by that track shall be scheduled[.]” LR2-400(G)(4) (2014); see also LR2-308(G)(4)

7But see LR2-308(G)(4)(a)-(c) (amending the time for trial on Tracks 1, 2, and
3, to 210, 300, and 455 days, respectively, from arraignment or other triggering
event).
9
(same). According to the original version of the local rule, Track 1 requires that trial
commence within 180 days of arraignment, waiver of arraignment, or other applicable
triggering 	event. 	LR2-400(G)(4)(a), 	(H) 	(2014) 	(identifying 	other 	applicable
triggering events to be any determination of competency, mistrial order, mandate
following appeal, date of arrest after failure to appear, date removed from pre-
prosecution, and date case was severed where previously joined). Track 2 requires that
trial commence within 270 days of a triggering event, LR2-400(G)(4)(b) (2014), and
Track 3 within 365 days, LR2-400(G)(4)(c) (2014).7 Within each of these tracks, the
local rule provides deadlines for plea agreements; pretrial conferences; notices of need
for a court interpreter; pretrial motions, responses, and hearings; witness interviews;
and the disclosure of scientific evidence. See LR2-400(G) (2014); see also LR2-
400(G)(4)(a). With respect to witness interviews, in particular, the deadline under
Track 1 is 60 days prior to trial. See LR2-400(G)(4)(a)(vii) (2014). The same deadline
for Track 2 cases is 75 days, LR2-400(G)(4)(b)(vii) (2014), and for Track 3 is 100
days, LR2-400(G)(4)(c)(vii) (2014). See LR2-400(G)(4)(a)-(c) (same).
{14} 	The district court must impose sanctions for the failure to comply with any of
the scheduling provisions of the local rule. See LR2-400(I) (2014), see also LR2-

10
308(I) (modifying the structure of the mandatory sanction provision of the local rule).
Specifically, as required by the original version of the local rule, the district court
“shall impose sanctions as the court may deem appropriate in the circumstances,
including but not limited to reprimand by the judge, dismissal with or without
prejudice, suppression or exclusion of evidence, and a monetary fine imposed upon
a party’s attorney or that attorney’s employing office with appropriate notice to the
office and an opportunity to be heard.” LR2-400(I) (2014); see also LR2-308(I)(3)
(identifying witness exclusion and the imposition of civil or criminal contempt as
sanctions which a district court “may impose”).
II. 	Preexisting Limitations on the Exercise of Sanction Discretion
{15} 	Prior to enactment of the local rule, our Supreme Court set out clear limitations
on the exercise of a district court’s discretion to exclude witnesses in State v. Harper,
2011-NMSC-044, ¶¶ 16-20, 150 N.M. 745, 266 P.3d 25. Harper 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.” Id.
¶ 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

11
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 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
“prejudice 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 “[p]rejudice 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.

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{16} 	Regarding Harper’s requirement that the opposing party demonstrate that it has
been prejudiced in order to attain sanctions, Id. ¶ 16, and in particular the sanction of
witness exclusion, id. ¶ 15, we take this opportunity to note that prejudice is not a
prerequisite to the imposition of sanctions under the local rule given the mandatory
nature 	of 	sanctions. 	See 	LR2-400(I) 	(2014); 	see 	also 	LR2-308 	(I) 	(same).
Consequently, to the extent the local rule diverges from Harper in this regard, the
local rule controls. See LR2-400(A) (2014); see also LR2-308(A) (same). But nothing
in the local rule can be read to eliminate the analytic role of prejudice to a defendant
in determining the severity of a sanction imposed on the state, and we continue to rely
on Harper in this regard, even in circumstances where no showing of prejudice is
required.
{17} 	Even when not discussing the exclusion of witness testimony in particular, our
appellate decisions have placed limitations on the exercise of a district court’s
discretion to stringently sanction by excluding or suppressing evidence. While this
Court’s review of a district court’s imposition of sanctions is for an abuse of
discretion, we still look to “the nature of the conduct and level of culpability found by
the trial court and whether the trial court’s sanction appears more stern than necessary
in light of the conduct prompting the sanction.” Enriquez, 1998-NMCA-157, ¶ 20.
“[P]art of our calculus includes a review of the trial court’s exploration of alternatives

13
to the sanctions ultimately imposed.” Id. ¶ 21 (also describing the consideration of
lesser sanctions as “a generally useful exercise both on appeal and for the trier in the
first instance”); see id. ¶ 48 (affirming the imposition of sanctions that deprived the
defendant of affirmative defenses when the trial court “explicitly considered other
lesser alternatives and found them wanting”); see also Gonzales v. Surgidev Corp.,
1995-NMSC-047, ¶ 33, 120 N.M. 151, 899 P.2d 594 (“The court need not exhaust all
lesser sanctions, although meaningful alternatives must be reasonably explored before
the sanction of dismissal is granted.” (internal quotation marks and citation omitted)).
{18} 	We view our precedent, including our Supreme Court’s most recent expression
of it in Harper, to bind New Mexico courts to the requirement that lesser sanctions be
considered when fashioning a proper remedy for a party’s failure to abide by the
orders and rules of a court. Therefore, we assess the applicability or inapplicability of
our case law only from the standpoint of whether it is in direct conflict with any
specific provision of the local rule.
III. 	No Case Law Conflicts Presented Under Specific Facts of This Case
A. 	District Court’s Exclusion of Witnesses
{19} 	Having considered the provisions of the local rule and the requirements of
Harper, we conclude that under the facts of the present case, no conflict is presented

14
and, therefore, Harper still limits the district court’s ability to exclude witnesses. As
we explain below, our holding does not disregard the local rule’s requirement that
sanctions be imposed for failure to comply with the time requirements of the local
rule. See LR2-400(I) (2014). We observe first that while imposition of sanctions is
mandatory, the type of sanction imposed is still within the discretion of the Second
Judicial District Court. See id. (providing that “the court shall impose sanctions as the
court may deem appropriate”). As such, the exercise of discretion to sanction remains
subject to the prudential limitations enunciated in Harper, 2011-NMSC-044, ¶ 16.
Additionally in the present case, we conclude that no deadline imposed by LR2-
400(G)(4)(a) (2014) was violated, and thus, no mandatory sanction was required
pursuant to LR2-400(I) (2014).
{20} 	Defendant’s case began on September 5, 2014, and a scheduling conference was
held on February 16, 2015, soon after the local rule went into effect on February 2,
2015. While the scheduling order did not include a deadline for the completion of
witness interviews, the case was placed on Track 1 and the trial was set for July 20,
2015. The district court judge could have set a shorter time frame for the conclusion
of witness interviews, see LR2-400(G)(5) (2014), but because no deadline for witness
interviews was included in the scheduling order, the deadline for pretrial interviews
was May 20, 2015, based on the requirements of the local rule. 	See 	LR2-

15
400(G)(4)(a)(vii) (2014) (“Witness interviews will be completed sixty (60) days
before the trial date[.]”).
{21} 	In the present case, Defendant scheduled four interviews to take place on
February 24, 2015; two officers failed to attend without providing justification for
their absence. The same day, Defendant moved to exclude those witnesses based on
their failure to appear. We calculate that at that point in the proceedings, there were
roughly three months left within which to reschedule the interviews; thus, it would
appear that sanctions other than exclusion of the witnesses could have still remedied
any violation that may have occurred. Additionally, we conclude that because
mandatory sanctions were not required under the local rule as no deadline had been
violated, and because the local rule does not mandate exclusion as a discovery
sanction pursuant to LR2-400(D)(4) (2014), under the facts of this case, Harper still
applies.
{22} 	Defendant 	argues 	that 	the 	local 	rule 	supersedes 	Harper 	given 	the
comprehensive nature of the local rule. Defendant contends that under NMSA 1978,
Section 12-2A-10(D) (1997), “[i]f a rule is a comprehensive revision of the rules on
the subject, it prevails over previous rules on the subject, whether or not the revision
and the previous rules conflict irreconcilably.” While this argument may be persuasive
under other circumstances, here, our Supreme Court has specified that “existing case

16
law on criminal procedure continue[s] to apply to cases filed in the Second Judicial
District Court . . . to the extent [it] do[es] not conflict with th[e] pilot rule.” LR2-
400(A) (2014). While “the Legislature may enact rules affecting practice and
procedure,” the Supreme Court may “exercise[] its inherent power to supersede any
conflicting statutory provisions.” Grassie v. Roswell Hosp. Corp., 2008-NMCA-076,
¶ 10, 144 N.M. 241, 185 P.3d 1091. Thus, to the extent the textual directive contained
in LR2-400(A) (2014) conflicts with Section 12-2A-10(D), we conclude the local rule
controls and, therefore, the comprehensive nature of the local rule does not require
that it prevail over prior rules even where no conflict exists.
{23} 	Defendant also argues that the local rule directly and irreconcilably conflicts
with Harper. Defendant contends that the local rule and Harper cannot be reconciled
because the local rule “makes sanctions mandatory upon any violation, while Harper
. . . all but forbade sanctions.” However, what Defendant fails to acknowledge is that
Harper does not apply to all sanctions, but only to those sanctions, such as exclusion
of witnesses, that bar further prosecution by the State or that are the “functional
equivalent of dismissal.” Harper, 2011-NMSC-044, ¶ 21. Thus, under the facts of this
case, even if we were to conclude that there was a violation of the timeline provisions
of the local rule, there are still avenues available to the district court that allow it to
choose an appropriate sanction that remedies the violation, but that does not

8We note that this avenue is curtailed to some degree by the revisions to the
local rule. See LR2-308(I)(4) (amending the local rule to prohibit 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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effectively bar the continuation of prosecution by the State. For instance, the local rule
clearly contemplates that dismissals without prejudice will be utilized by the Second
Judicial District Court to enforce compliance. See LR2-400(I) (2014) (including
dismissal without prejudice as one of the sanctions that may be utilized and providing
that, “[i]f the case has been re-filed following an earlier dismissal [without prejudice],
dismissal with prejudice is the presumptive outcome for a repeated failure to comply
with this rule”); see also LR2-308(I)(2) (same). A dismissal without prejudice would
permit new deadlines to be established to allow Defendant the meaningful opportunity
to interview the witnesses against him, while warning the State that further failures to
adhere to the requirements of the local rule may result in the State being disallowed
from prosecuting Defendant.8
{24} 	Moreover, to the extent Defendant contends that the local rule and Harper
cannot be reconciled because the local rule “gives judges wide discretion to select
among sanctions, while Harper severely limited a judge’s choice[,]” we disagree.
Defendant characterizes the local rule as “requir[ing] mandatory sanctions, without
restriction”; however, we note that the local rule does not provide the district court

18
with a blanket discretion to impose any sanction it chooses, but qualifies the district
court judge’s choice of sanction by requiring that it be “appropriate in the
circumstances.” LR2-400(I) (2014). We do not interpret the broad language allowing
for the choice of an “appropriate sanction” to mean the district court has unfettered
discretion; rather, we interpret this broad language as allowing this Court to reconcile
the requirements of Harper with the local rule under the facts of this case. Cf. § 12-
2A-10(A) (“If statutes appear to conflict, they must be construed, if possible, to give
effect to each.”). Given that our Supreme Court has specifically articulated in the local
rule that the provisions of the rule and prior case law should be reconciled where
possible, see LR2-400(A) (2014), we interpret the rule’s use of broad strokes in
discussing sanctions to allow for the continued application of Harper to the sanction
to which it applies, rather than intending Harper’s upending in only the Second
Judicial District. Given this Court’s role as an intermediate court, we conclude that
such a path is appropriate and sensible under these unique circumstances that require
us to apply the local rule, adhere to non-conflicting precedent, consider the interests
of defendants and the state, and arrive at a workable methodology that district judges
in the Second Judicial District can incorporate into the pre-trial litigation ongoing
currently under LR2-308.

19
{25} 	In this case, and given the circumstances that preceded the sanctions imposed,
it does not appear that the criteria established in Harper of (1) intentional, bad faith
conduct, (2) consideration of lesser sanctions, and (3) tangible prejudice to the
Defendant were considered by the district court. We therefore reverse the district
court’s order excluding the witnesses from testifying and remand for consideration of
these factors.
B. 	District Court’s Suppression of Audio-Visual Evidence
{26} 	We posit similar concerns as those explained above with regard to the district
court’s decision to exclude all audio and visual evidence in the present case. With
respect to the suppression of audio and visual evidence, however, we note the State’s
clear violation of Rule 5-501(A) and the local rule. Thus, while we conclude that some
sanctions were appropriate, under our precedent all options should have demonstrably
been 	considered. 	See 	Enriquez, 	1998-NMCA-157, 	¶¶ 	20-21; 	Bartlett,
1990-NMCA-024, ¶ 4.
{27} 	As we have stated, the local rule requires that “copies of documentary evidence,
and audio, video, and audio-video recordings made by law enforcement officers or
otherwise in possession of the state” be provided to Defendant at the time of
arraignment or within five days of a written waiver of arraignment. LR2-400(D)(1)
(2014). Here, Defendant was arraigned before the effective date of the local rule and,

9Copies may be provided electronically or in print. LR2-400(D)(5) (2014).
20
thus, Rule 5-501 governed until the local rule took effect. The State’s assertion as to
the deadline for providing copies of the evidence is resolved by its failure to timely
provide them under either Rule 5-501(A) or the local rule. We conclude that it is not
necessary to determine which date was required because, in the present case, the State
failed to meet either of these deadlines.
{28} 	Moreover, to the extent the State contends that the requirements of LR2-400(D)
(2014) are satisfied by the provision of a speed letter, we disagree. The language
contained in the local rule resolves this issue:
The 	state 	shall 	disclose 	or 	make 	available 	to 	the 	defendant 	all
information described in Rule 5-501(A)(1)-(6) . . . at the arraignment or
within five (5) days of when a written waiver of arraignment is filed
under Rule 5-303(J) NMRA. In addition to the disclosures required in
Rule 5-501(A) . . . , at the same time the state shall provide phone
numbers and email addresses of witnesses if available, copies of
documentary evidence, and audio, video, and audio-video recordings
made by law enforcement officers or otherwise in the 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 language contained in this rule requires physical 9 copies
of documentary and audio-visual evidence in addition to the provision of a speed
letter. See Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 46, 333 P.3d
947 (“New Mexico courts have long honored [the] statutory command [that the text
of a statute or rule is the primary, essential source of its meaning] through application

21
of the plain meaning rule, recognizing that when a statute contains language which is
clear and unambiguous, we must give effect to that language and refrain from further
statutory interpretation.” (alteration, internal quotation marks, and citation omitted));
Frederick v. Sun 1031, LLC, 2012-NMCA-118, ¶ 17, 293 P.3d 934 (“When construing
our procedural rules, we use the same rules of construction applicable to the
interpretation of statutes.” (internal quotation marks and citation omitted)). Moreover,
pursuant to the language of the local rule, a speed letter is intended to allow the
inspection of physical evidence—such as a gun or a knife. It is not intended to allow
the State to avoid providing actual copies of the documentary and audio-visual
evidence as required by the local rule.
{29} 	Thus, for the reasons discussed above, the State was required to provide
Defendant copies of the lapel camera recording and the two interviews between
Defendant and detectives. Having failed to do so, the State was in violation of LR2-
400(D)(1) (2014) and subject to sanctions pursuant to LR2-400(D)(4) (2014). Unlike
the sanction provision governing violations of track deadlines, sanctions pursuant to
LR2-400(D)(4) (2014) are purely discretionary. Id. (“If the state fails to comply with
any of the provisions of this rule, the court may enter such order as it deems
appropriate under the circumstances, including but not limited to prohibiting the state

10 We note again that the amended version of the rule eliminated the district
court’s discretion in whether to sanction for discovery violations, replacing LR2-
400(D)(4) (2014) with LR2-308(I), applicable to any discovery or timeline violation
of the local rule. Thus, our conclusion on this issue is of limited applicability.
22
from calling a witness or introducing evidence.”).10 Given the discretionary nature of
such sanctions, we do not discern any conflict between the local rule and the case law
limiting the district court’s exercise of discretion when excluding evidence as a
sanction, at least not under the facts of this case. We conclude again that the principles
set out above, requiring consideration of lesser sanctions and prejudice to Defendant,
still apply. Given that lesser sanctions are available but were not considered, and that
Defendant received the discovery four months prior to trial and two months prior to
the pre-trial motions deadline, we reverse the district court’s order excluding all audio-
visual evidence. We remand for consideration of an appropriate sanction.
{30} 	We continue to observe, however, that the State cannot blithely disregard the
requirements of the local rule, turn things over late, argue that there was no prejudice
to a defendant’s case because the pre-trial motion deadline has not run, and avoid
repercussions. The local rule requires that a defendant be provided copies of evidence
against him at the time of arraignment. Moreover, the time frames set forth in the local
rule are short, and delay is certain to impact the ability of the case to proceed in
accordance with the track deadlines. While “[c]ourts should apply the extreme
sanction of exclusion of a party’s evidence sparingly[,]” State v. Guerra, 2012-

23
NMSC-014, ¶ 33, 278 P.3d 1031, we specifically note the availability of lesser
sanctions, such as dismissal without prejudice, that may help to curtail the late
disclosure of evidence in the future.
CONCLUSION
{31} 	Our ruling today incorporates our understanding of the overarching purpose of
the local rule, that being to facilitate the progression of cases in the Second Judicial
District and lessen the duration of pending criminal proceedings. We do not believe
that the local rule was designed to serve as a technical mechanism by which important
witnesses in criminal cases are excluded, core evidence suppressed as a matter of first
resort, or cases themselves abruptly dismissed with prejudice. Nor do we think our
Supreme Court intended to, barring direct conflict with a specific provision of the
local rule, render Harper wholly inapplicable in but one of the thirteen judicial
districts in New Mexico. For these reasons, we reverse the district court’s order
excluding witnesses and audio-visual evidence. While we note that there may be
situations in which the new case management pilot rule will conflict with case law
limiting the discretion of the district court to exclude witnesses, suppress evidence,
and dismiss with prejudice, we conclude that the facts of this case present no such
conflict.
{32} 	IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

LINDA M. VANZI, Chief Judge

JULIE J. VARGAS, Judge

24.