January 7, 2019- State of New Mexico v. Valentin Julio Garcia, No. A-1-CA-35184

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 V. 	A-1-CA-35184
5 VALENTIN JULIO GARCIA, a/k/a
6 	VALENTINE GARCIA a/k/a JULIO GARCIA,
7 	Defendant-Appellee.
8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
9 Charles W. Brown, District Judge
10 Hector H. Balderas, Attorney General
11 	Santa Fe, NM
12 	John Kloss, Assistant Attorney General
13 	Albuquerque, NM
14 	for Appellant
15 	Bennett J. Baur, Chief Public Defender
16 	J .K. Theodosia Johnson, Assistant Appellate Defender
17 Santa Fe, NM
18 	MJ Edge, Assistant Appellate Defender
19 Albuquerque, NM
20 	for Appellee
21 	MEMORANDUM OPINION
22 	VANZI, Chief Judge.
23 	{I} 	This case comes to u~ by order of remand from our Supreme Court for further
24 consideration in light of State v. Le Mier, 2017-NMSC-017, 394 P.3d 959. See Order
Court of Appeals of New Mexico
Filed 1/7/2019 10:47 AM
Mark Reynolds

1 at 1-2, State v. Garcia, No. S-1-SC-36389 (May 22, 2017). The State ofNew Mexico
2 (the 	State) appeals the 	district court's November 	18, 2015 	decision, 	to 	grant
3 Defendant Valentin Garcia's motion to exclude, claiming that exclusion of the
4 evidence was an abuse of discretion under the circumstances. We hold on remand
5 that the district court did not abuse its discretion.
6 BACKGROUND
7 {2} 	Defendant was 	indicted for trafficking heroin 	on January 	5, 	2015, 	and
8 arraigned on May 15, 2015. The district court initially set a scheduling conference
9 	for June 12, 2015, but for some reason Defendant, who was in State custody, was
10 not transported to the courthouse, and the conference was rescheduled. After another
11 	reset, the district court held a scheduling conference on August 26, 2015. At the
12 conference, Defendant told the district court that the State had provided all discovery
13 	except for the State's chemist's drug analysis report "bench notes." Pursuant to the
14 local case management pilot rule, LR2-400 NMRA (2014) (current version at LR2-
15 	308 NMRA), the district court assigned the case to Track 1 status, which required
16 the district court to enter a scheduling order setting specific deadlines for discovery
17 and trial. See LR2-400(G)(4)(a).
18 	{3} 	The district court entered a scheduling order that same day memorializing the
19 deadlines set at the conference. In relevant part, the scheduling order set the deadline
20 for pretrial motions for September 1, 2015, and trial for a two-week trailing docket
2

1 beginning on October 	19, 2015. However, after Defendant made a motion to
2 continue trial due to his being back ~nd forth between federal and state custody, the
3 court entered a new scheduling order setting trial for November 18, 2015. Neither
4 order included a deadline for the production of results of scientific evidence. This
5 being so, the deadline for production of results of scientific evidence defaulted to, at
6 a minimum, ninety days before trial under LR2-400. See LR2-400(G)(4)(a)(viii).
7 Both orders warned the parties, "If a party fails to comply with the dates outlined in
8 this Scheduling Order, the Court shall impose sanctions. Sanctions may include, but
9 are not limited to, dismissal with or without prejudice, suppression or exclusion of
10 evidence, [or] a monetary fine[.]"
11 	{4} 	The morning of the trial, Defendant filed a motion to exclude the State's
12 chemist's drug analysis results and reports because the State allegedly failed to
13 	provide the chemist's "bench notes." After the district court agreed to hear the
14 untimely filed motion, Defense counsel realized that the State did email him a copy
15 	of the "bench notes" after the initial scheduling conference on August 26, 2015.
16 However, the district court noted that even if the State sent the "bench notes" on
17 August 26, the State produced the notes less than ninety days before the November
18 	18 trial. Defendant also alerted the district court that the chemist performed the drug
19 	analysis in December 2014, and thus, the State was required to disclose the "bench
3

1 notes" at Defendant's arraignment pursuant to LR2-400 because it had them in its
2 possession at that time.
3 	{5} 	At that point, the district court stated, "I'm going to grant the exclusion of any
4 scientific test[,]" and dismissed the case with prejudice when the State admitted it
5 could not go forward without the drug analysis. The district court did not explain its
6 decision to 	exclude the evidence or mention any consideration of the factors
7 identified in State v. Harper, 2011-NMSC-044, 150 N.M. 745,266 P.3d 25, i.e., the
8 culpability of the State, prejudice to Defendant or the court, or the availability of
9 lesser sanctions. The district court subsequently entered an order stating, "Pursuant
10 to LR2-400(I) this case is DISMISSED [with prejudice] for violation of the Rules
11 	contained in LR2-400 or of this Court's Scheduling Order. This dismissal is based
12 on the following: The State did not provide scientific evidence 90 days prior to
13 	trial[.]" The district court did not discuss the Harper factors or further explain its
14 decision to exclude in its order. This appeal followed.
15 	{6} 	On 	March 	2, 	2017, 	we 	issued 	a 	memorandum 	opm1on 	reversmg 	and
16 remanding for the district court to consider lesser sanctions. See State v. Garcia, No.
17 35,184, mem. op. (N.M. Ct. App. Mar. 2, 2017) (non-precedential). After Defendant
18 	petitioned for a writ of certiorari, our Supreme Court remanded this case to us for
19 further consideration in light of its recent decision, Le Mier, 2017-NMSC-O 17. See
20 Order at 1-2, State v. Garcia, No. S-1-:-SC-36389 (May 22, 2017). Given Le Mier's
4

1 holding that "[c]ourts must evaluate the considerations identified in Harper- ,
2 culpability, prejudice, and lesser sanctions-when deciding whether to exclude a
3 witness and must explain their decision to exclude or not to exclude a witness within
4 the framework articulated in Harper," Le Mier, 2017-NMSC-Ol 7, 120, and given
5 that the Supreme Court decided Le Mier after the district court's decision, we
6 remanded this case for the "limited purpose of allowing the [district] court to provide
7 a written explanation of its decision to exclude the evidence within the framework
8 articulated in Harper, as clarified by Le Mier."
9 {7} 	In response to our order for limited remand, the district court entered an order
10 with specific findings regarding the circumstances surrounding its decision to
11 	exclude the State's witnesses, which generally included the factual background
12 described above and which we discuss in more detail below. In its order, the district
13 	court explained that it was operating under the strict timelines and requirements of
14 LR2-400, which required it to impose sanctions for failure to comply with discovery
15 	obligations. The court found that "[t]he State violated [LR2-400] when, despite
16 having ample time and being in possession of the evidence in question, the State
17 failed [to] provide the evidence as required at arraignment, ·and further failed to
18 timely provide the evidence well enough in advance of trial, as required by [LR2-
19 	400]/' The court also found that the State's "[f]ailure to timely provide discovery
20 appears to have affected the ability of defense counsel to adequately prepare for
5

1 trial." Given these facts, the district court concluded that "exclusion of the evidence
2 [was] the most appropriate sanction."
3 	DISCUSSION
4 {8} 	As this case was filed after July 	1, 	2014, it was subject to local case
5 management pilot rule, LR2-400. See LR2-400(B)(l). The rule requires the district
6 court to assign the case to one of three tracks and issue a scheduling order that
7 identifies the dates when events required by the track assignment must be scheduled.
8 See LR2-400(G)(4). Parties to cases assigned to Track 1 must generally disclose
9 results of any scientific evidence 120 days before trial. See LR2-400(G)(4)(a)(viii).
10 However, if justified by good cause, a party may disclose the results later than 120
11 	days, but in no event less than ninety days before trial. Id. The rule also requires
12 parties in Track 1 cases to file pretrial motions not less than fifty days before trial.
13 	See LR2-400(G)(4)(a)(vi). If either party fails to comply with the above deadlines,
14 "the 	court shall 	impose 	sanctions as the 	court may deem appropriate 	in the
15 	circumstances, including but not limited to reprimand by the judge, dismissal with
16 	or without prejudice, suppression or exclusion of evidence, and a monetary fine[.]"
17 LR2-400(1). 	While 	LR2-400(1) 	makes 	sanctions 	mandatory 	for 	violations 	of
18 	scheduling order deadlines, it provides the district court with discretion regarding
19 the type of sanction to impose. See id.
6

1 {9} 	In addition to the scheduling requirements, LR2-400 requires the State to
2 disclose "all information described in Rule 5-501(A)(l)-(6) NMRA," at the time of
3 the defendant's arraignment, or within five days of the filing of a written waiver of
4 arraignment. LR2-400(D)(l). Rule 5-501(A)(4) provides that the State must disclose
5 "any results or reports ... of scientific tests or experiments, ... within the possession,
6 custody or control of the state, the existence of which is known, or by the exercise
7 of due diligence may become known to the prosecutor[.]" The State also has a
8 "continuing duty to disclose additional information it receives to the defendant
9 within five ... days of [its] receipt." LR2-400(D)(3). Unlike scheduling violations,
10 LR2-400 provides the district court with discretion to 	sanction the 	State for
11 	discovery violations. See LR2-400(D)(4) ("If the state fails to comply with any of
12 the provisions of this rule, the court may enter such order as it deems appropriate
13 	under the circumstances[.]" (emphasis added)).
14 	{IO} 	We review the district court's imposition of sanctions for an abuse 	of
15 	discretion. See Le Mier, 2017-NMSC-017, , 	22. "An abuse of discretion occurs
16 when the ruling is clearly against the logic and effect of the facts and circumstances
17 	of the case." Id. (internal quotation marks and citation omitted). "In reviewing the
18 	district court's decision, [appellate courtslview[] the evidence ... and all inferences
19 	... in the light most favorable to the district court's decision." Id. , 22. To determine
20 whether the imposition of severe sanctions, such as the exclusion of key evidence,
7

1 is proper, our Supreme Court has instructed courts to consider:. "(1) the culpability
2 of the offending party, (2) the prejudice to the adversely affected party, and (3) the
3 availability of lesser sanctions." Id. ,-r 15 (citing Harper, 2011-NMSC-044, ,-r 16).
4 However, "Harper did not establish a rigid and mechanical analytic framework. Nor
5 did Harper embrace standards so rigorous that courts may impose witness exclusion
6 only in response to discovery violations that are egregious, blatant, and an affront to
7 their authority." Le Mier, 2017-NMSC-017, ,-r 16. Thus "it is not the case that witness
8 exclusion is justified only if all of the Harper considerations weigh in favor of
?
9 exclusion." Le Mier, 2017-NMSC-017, ,-r 20.
10 	{11} 	As an initial matter, the State argues that the district court abused its discretion
11 	by imposing a sanction for disclosing the "bench notes" within ninety days of trial,
12 	in violation ofLR2-400(G)(4)(a)(viii), because the court set trial for less ~han ninety
13 	days from the scheduling conference. However, the State failed to preserve this
14 	argument. By the time the court held the scheduling conference on August 26, 2015,
15 	LR2-400 had already been in effect for over six months. See LR2-400 (listing
16 effective date as February 2, 2015). Thus,.the State was undoubtedly aware of its
17 obligations under the rule at that time, including the deadline for providing results
18 	of scientific evidence. The State was also aware that it had not provided the "bench
19 notes" to Defendant because Defendant told the district court at the conference that
20 he had not received them, and the State emailed the notes to Defendant after the
8

1 conference. This being so, the State should have been aware of the potential violation
2 as soon as the district court set the date of trial within ninety days. However, the
3 State failed to alert the district court to the potential conflict and instead accepted the
4 court's deadlines without objection. Therefore, the State's argument that it was an
5 abuse of discretion to impose a sanction for violating LR2-400(G)(4)(a)(viii) is
6 unpreserved and we do not consider. See Rule 12-321 NMRA ("To preserve an issue
7 for review, it must appear that a ruling or decision by the trial court was fairly
8 invoked."); State v. Leon, 2013-NMCA-011,, 33, 292 P.3d 493 ("We generally do
9 not consider issues on appeal that are not preserved below." (internal quotation
10 marks and citation omitted)). Moreover, the State does not appear to dispute that it
11 	was in possession of the "bench notes" at the time of Defendant's arraignment, and
12 therefore, the district court had the discretion to sanction the State for violating LR2-
13 	400(D)(l) and LR2-400(D)(3).
14 	{12} 	The 	State 	next 	argues 	that the 	district 	court 	abused 	its 	discretion 	by
15 	considering and ruling on Defendant's untimely motion. However, "[a] district court
16 	is not prevented from imposing a sanction . . . for discovery violations once the
17 motions deadline has passed." State v. Lewis, 2018-NMCA-019,, 17,413 P.3d 484.
18 	While Defendant had the "bench notes" since August 26, 2015, defense counsel did
19 	not realize this until the morning of trial. Despite Defendant's oversight, the district
20 court still had an interest in hearing the motion to determine if the parties were
9

1 complying with their discovery obligations. See Le Mier, 2017-NMSC-Ol 7, , 	29
2 ("[O]ur courts are encouraged to .ensure the timely adjudication 	of cases, to
3 proactively manage their dockets, and to utilize appropriate sanctions to vindicate
4 the public's interest in the swift administration of justice."). Therefore, we conclude
5 that the district court did not abuse its discretion in considering the untimely motion.
6 While the district court may have been obligated to sanction Defendant for filing his
7 motion past the deadline, see LR2-400(I), the State did not make this argument
8 below. Thus, this argument is unpreserved and we need not address it. See Rule 12-
9 321 ("To preserve an issue for review, it must appear that a ruling or decision by the
10 trial court was fairly invoked.").
11 	{13} 	Finally, the State argues that the district court abused its discretion by
12 	imposing the sanction of exclusion without adequately considering the Harper
13 	factors. While it is true that the district court did not discuss the Harper factors in its
14 	original order granting Defendant's motion to exclude, it issued a detailed order
15 	upon limited remand that included specific findings regarding the State's discovery
16 violations. We conclude that this order provides us with an adequately developed
17 record for us to substantively review for consideration of the Harper factors, which
18 	we do so now.
19 	{14} 	With respect to the first Harper factor, the culpability of the offending party,
20 we note the following facts, which the district court considered upon limited remand
10

1 in making its determination that witness exclusion was the appropriate sanction. The
2 	State was required to disclose "all information described in Rule 5-50l(A)(l)-(6)
3 NMRA," at the time of Defendant's arraignment under LR2-400(D)(l ). The State
4 was also under a continuing duty to disclose additional information it received within
5 five days of its receipt. LR2-400(D)(3). The State does not dispute that it had the
6 "bench notes" at the time of Defendant's arraignment in May. Yet, as the district
7 court found upon limited remand, "[D]espite having ample time and being in
8 possession of the evidence in question, the State failed [to] provide the evidence as
9 required at arraignment[.]" Moreover, the State did not provide the "bench notes"
10 until 	August 	26, 	less 	than 	ninety 	days 	before 	trial, 	in 	violation 	of 	LR2-
11 	400(G)(4)(a)(viii). By waiting to tum over the "bench notes" for months, the State
12 violated multiple rules of discovery that had clear deadlines. Given these facts, we
13 	cannot say that the district court erred in finding the State culpable. See Le Mier,
14 	2017-NMSC-Ol 7,124 ("While here the violations were multiple, a single violation
15 	of a discovery order may suffice to support a finding of culpability. Moreover, the
16 	court's 	orders 	were 	clear 	and 	unambiguous, 	and 	the 	violation 	of clear 	and
17 unambiguous orders is only further proof of culpable conduct.").
18 	{15} 	With respect to the second Harper factor, prejudice to the adversely affected
19 party, Le Mier explains that any discovery violation necessarily involves some
20 	amount of prejudice to the defendant and the court. See Le Mier, 2017-NMSC-017,
11

1 1 25 ("When a court orders a party to provide discovery within a given time frame,
2 failure to comply with that order causes prejudice both to the opposing party and to
3 the court."). Upon limited remand, the district court found that "[f]ailure to timely
4 provide discovery appears to have affected the ability 	of defense counsel to
5 adequately prepare for trial." The State argues that Defendant could not have been
6 prejudiced because he actually had the "bench notes" since the August 26 scheduling
7 conference. However, this ignores the fact that Defendant was entitled to the "bench
8 notes" at the time of his arraignment, over three months before the scheduling
9 conference. See LR2-400(D)(l). Moreover, the State's failure to comply with its
10 discovery obligation prejudiced the court by requiring it to dedicate its time and
11 	resources to the needless and wasteful task of ensuring compliance with basic
12 	discovery rules. See Le Mier, 2017-NMSC-017, 1 26 ("The State's inability to
13 	provide . . . correct witness addresses required the court to dedicate its time and
14 resources to 	a needless 	and wasteful 	cause: 	ensuring 	compliance with 	basic
15 	discovery rules and orders .... 	[T]he court's time was wasted, 	and this is
16 prejudicial."). Therefore, the State's actions resulted in at least some degree of
17 prejudice to Defendant and the district court.
18 	{16} 	Lastly, with respect to the third Harper factor, the availability of lesser
19 	sanctions, we note Le Mier' s guidance that the district courts are "not obligated to
20 consider every conceivable lesser sanction before imposing witness exclusion ....
12

1 Rather, the court[ s are] only required to fashion the least severe sanction that best fit
2 the situation and which accomplished the desired result." Id., 27. While the record
3 does not show an explicit consideration oflesser sanctions, we specifically remanded
4 this case back to the district court to re-examine its ruling in light of Harper and Le
5 Mier, and, therefore, we will assume the court was aware of its duty to consider
6 lesser sanctions. Upon limited remand, the court issued an order detailing the State's
7 actions and concluded, "[I]n this case, exclusion of the evidence is the most
8 appropriate sanction." The district court was in the best position to determine the
9 least severe sanction that would accomplish its desired result, and it is not our job to
10 "second guess our courts' determinations as to how their discretionary authority is
11 	best exercised." Le Mier, 2017-NMSC-017,, 17. While we express some concern
12 with the severity of the sanction imposed in light of the fact that Defendant had the
13 	"bench notes" since the scheduling conference, given the district court's broad
14 discretion to impose sanctions and our imperfect understanding of the proceedings
15 	we review, we cannot say that this was "clearly against the logic and effect of the
16 	facts and circumstances of the case." Id., 22 (internal quotation marks and citation
17 omitted).
18 	CONCLUSION
19 {17} 	For the foregoing reasons, we affirm the district court's order granting
20 Defendant's motion to exclude.
13

1 {18} 	IT IS SO ORDERED.
2
3
4
5 WE CONCUR:
6_}-~
7 J. MILES HANISEE, Judge
8 	1.J.1-.l~9 HENRY M. BOHNIIOFF~gePro Tempore
14