July 24, 2019- State of New Mexico v. Julian Romero, No. A-1-CA-35978

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 	v. 	No. A-1-CA-35978
5 JULIAN ROMERO,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 	Charles W. Brown, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 	Meryl Francolini, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellant
14 Bennett J. Baur, Chief Public Defender
15 Nina Lalevic, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellee
18 	MEMORANDUM OPINION
19 	IVES, Judge.
20 	{1} 	The district court excluded the testimony of one of the State's witnesses as a
21 	sanction for failure to properly disclose the witness. The State appeals, arguing that
Court of Appeals of New Mexico
Filed 7/24/2019 10:42 AM

1 (1) Defendant's motion for sanctions was untimely; and (2) the district court did not
2 adequately explain its reasoning. We affirm.
3 BACKGROUND
4 	{2} 	A grand jury indicted Defendant and on February 2, 2016, the district court
5 entered a scheduling order. The case was subject to the Second Judicial District
6 Court's special calendar rule, LR2-400 NMRA(B)(l) (2016). 1 The special calendar
7 rule required, among other things: (a) the State to disclose to Defendant, within
8 twenty-five 	days 	after arraignment or waiver thereof, 	the names 	and 	contact
9 information of the State's trial witnesses along with a summary of their expected
10 testimony, LR2;.400(G)(l); and (b) the district court to sanction parties for failing to
11 	comply with the time limits in a scheduling order, LR2-400(1).
12 	{3} 	On October 6, 2016, Defendant moved to prohibit the State from calling
13 	undisclosed witnesses. Defendant argued that the State had not timely disclosed the
14 name 	of a witness (Witness), his contact information, and a summary of his
15 	testimony. The district court granted the motion to exclude the testimony of Witness.
16 The State moved to reconsider, arguing, among other things, that Defendant's
17 motion to exclude the testimony was late. The district court denied the motion to
1 LR2-400 was recompiled and amended as LR2-308 	NMRA, 	effective
December 31, 2016.
2

1 reconsider, noting that "[i]t doesn't take a motion to suppress. If he's not on the
2 witness list, he won't testify." The State appeals.
3 DISCUSSION
4 I. 	Standard of Review
5 {4} 	"We review the. district court's imposition of sanctions for an abuse of
6 discretion." State v. Lewis, 2018-NMCA-019,, 5, 413 P.3d 484. To the extent that
7 our analysis depends on interpretation of procedural rules, our review is de novo.
8 Allen v. LeMaster, 2012-NMSC-001,, 11, 267 P.3d 806.
9 II. 	The Timing of Defendant's Motion Did Not Preclude Sanctions
10 	{5} 	The State first argues that Defendant's motion to exclude was untimely under
11 	LR2-400(G)(4)(b)(v), which required "[p]retrial motions" to "be filed not less than
12 sixty (60) days before the trial date" in cases such as Defendant's, absent a showing
13 	of good cause. The State contends that because Defendant's motion was filed less
14 than sixty days before trial, the district court erred by granting the motion without
15 	making any finding of good cause.
16 {6} 	We disagree. Assuming without deciding that Defendant's motion was late
17 without good cause,2 the motion's untimeliness did not preclude the district court
18 	from sanctioning the State. We have rejected an argument similar to the one the State
2 We need not decide whether a motion to exclude a witness as a sanction for
failure to timely disclose constitutes a "pretrial motion" for the purpose of LR2-
400(G)(4)(b)(v).
3

1 makes here, concluding that "[a] district court is not prevented from imposing a
2 sanction of dismissal for discovery violations once the motions deadline has passed."
3 Lewis, 2018-NMCA-019, 117. Indeed, the special calendar rule required sanctions
4 for every violation. See LR2-400(1)( 1) (stating that· district court "shall impose
5 sanctions"). LR2-400 did not prohibit a sanction because a motion for a sanction was
6 late. Nothing in LR2-400 or any other authority of which we are aware makes the
7 filing 	of any 	motion-much less a timely 	motion-a condition precedent for
8 sanctions. As the district court recognized, it had the authority to impose sanctions
9 sua sponte.
10 {7} 	The timing of Defendant's motion does not render the district court's sanction
11 	order erroneous.
12 	III. 	The District Court Adequately Explained Its Reasoning
13 	{8} 	The State contends that the district court ran afoul of State v. Le Mier, 2017-
14 NMSC-017, 	1 	20, 	394 	P·.3d 	959, 	which 	requires 	courts 	to 	"evaluate 	the
15 	considerations identified in [State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266
16 P.3d 25]-culpability, prejudice, and lesser sanctions-when deciding whether to
17 exclude a witness and ... explain their decision to exclude or not to exclude a witness
18 	within the framework articulated in Harper[.]" Because the district court ordered
19 exclusion before our Supreme Court decided Le Mier, we remanded this case to the
20 district 	court 	so 	it 	could explain 	its 	reasoning. 	See Lewis, 	2018-NMCA-019
4

1 (remanding so that district court could explain its reasons for imposing the sanction).
2 Having carefully reviewed the order the district court entered on remand, we
3 conclude that it addresses all of the Harper/Le Mier factors: "culpability, prejudice,
4 and lesser sanctions[.]" Le Mier, 2017-NMSC-017, 1 20. The order satisfies the
5 explanation requirement.
6 CONCLUSION
7 	{9} 	We affirm the sanction order and remand for further proceedings.
8
9
ANZI,Judge
12 	O,.~
13 	J. MILES HANISEE, Judge
5