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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellant,

 4 v.                                                                            NO. 34,924

 5 LUIS ROSAS-CAMPUZANO and
 6 ISABEL LAZCANO MELERO,

 7          Defendants-Appellees.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Cristina Jaramillo, District Judge

10   Hector H. Balderas, Attorney General
11   Santa Fe, NM
12   Charles J. Gutierrez, Assistant Attorney General
13   Albuquerque, NM

14 for Appellant

15 Mary McCleary
16 Albuquerque, NM

17 for Appellee Luis Rosas-Campuzano

18 Lupe H. Preciado
19 Albuquerque, NM

20 for Appellee Isabel Lazcano Melero
 1                              MEMORANDUM OPINION

 2 KENNEDY, Judge.

 3   {1}   The State appeals from the district court’s order dismissing the charges against

 4 Defendants Luis Rosas-Campuzano and Isabel Lazcano Melero without prejudice. The

 5 dismissal was granted pursuant to Second Judicial District Court Local Rule 2-400

 6 NMRA (2014), which permits, and in some instances requires, sanctions based on the

 7 State’s failure to comply with the discovery requirements and timelines contained in

 8 the rule. See Rule LR 2-400(D)(4) (2014); Rule LR 2-400(I) (2014). This Court’s

 9 second calendar notice proposed to affirm the district court’s order of dismissal

10 without prejudice. The State filed a memorandum in opposition to the proposed

11 disposition. Not persuaded by the State’s arguments, we affirm.

12   {2}   Initially, we note that the State clarifies that the federal agents who prepared the

13 Report of Incidents (“ROIs”) were not employed by the Drug Enforcement Agency

14 (DEA), as asserted in the docketing statement, but were actually two Department of

15 Homeland Security Investigators (HSIs). [MIO 5] The State acknowledges that it is

16 immaterial whether they were DEA agents or HSIs but asserts that in either case, they

17 were employed by a federal government law enforcement agency and the ROIs were

18 in their exclusive possession and control. [Id.] The State argues that as of the June 19,

19 2015, hearing on Defendant’s motion to dismiss, Detective Bradley Cooksey testified

                                                2
 1 that while he was not entirely certain ROIs were created, he believes that they were,

 2 but had not seen them or possessed them. [DS 4-5] The State notes that since the case

 3 was appealed, it has received one ROI. [MIO 7]

 4   {3}   This Court’s second calendar notice proposed to conclude that under the plain

 5 language of the rule, the ROIs are deemed to be in the possession of the State because

 6 they qualify as “[e]vidence in the possession of a law enforcement or other

 7 government agency” and a federal law enforcement agency falls within the definition

 8 of “other government agency.” Rule LR 2-400(D)(3) (2014). [CN 5] The State argues

 9 that this Court’s proposed disposition is contrary to the drafters’ intent when viewed

10 in pari materia with Rule 5-501(A) NMRA, governing disclosures by the State. [MIO

11 8-9] The State further contends that this Court’s proposed disposition conflicts with

12 existing case law relating to the State’s discovery obligations, specifically State v.

13 Jackson, 2004-NMCA-057, 135 N.M. 689, 92 P.3d 1263. [MIO 8, 13]

14   {4}   To the extent Jackson, or other case law, conflicts with the local rule, by its

15 express language, the local rule prevails. Rule LR 2-400(A) (2014) expressly states:

16 “The Rules of Criminal Procedure for the District Courts and existing case law on

17 criminal procedure continue to apply to cases filed in the Second Judicial District

18 Court, but only to the extent they do not conflict with this pilot rule.” (Emphasis

19 added). In support of its argument that Jackson governs, the State relies on the above

20 language in Rule LR 2-400(A) for the contention that this Court should not read

                                              3
 1 Jackson as conflicting with Rule LR 2-400(D)(3) absent clear language in the rule that

 2 our Supreme Court intended such a sweeping change to the State’s discovery

 3 obligations. [MIO 13] However, there is clear language in the local rule expressly

 4 expanding the requirements of Rule 5-501 and disclosures by the State. Rule LR 2-

 5 400(D)(1) (2014) provides: “In addition to the disclosures required in Rule 5-501(A)

 6 NMRA, at the same time the state shall provide phone numbers and email addresses

 7 of witnesses if available, copies of documentary evidence, and audio, video, and

 8 audio-video recordings made by law enforcement officers or otherwise in possession

 9 of the state, and a ‘speed letter’ authorizing the defendant to examine physical

10 evidence in the possession of the state.” (Emphasis added). By enumerating

11 additional, specific items the State is required to disclose in addition to those already

12 provided for in Rule 5-501, the drafters expressly expanded the requirements for

13 disclosures by the State. Therefore, the local rule prevails over any case law, such as

14 Jackson, insofar as it conflicts with the local rule.

15   {5}   The State further argues that this Court’s formalistic and mechanical application

16 of the plain meaning of Rule LR 2-400(D)(3) (2014) leads to an absurd and

17 unreasonable result if the State is required to produce documentary evidence in a

18 federal agency’s possession because it could result in dismissal based solely on

19 whether the federal agency voluntarily cooperates with the State in producing

20 documentary evidence in their control. [DS 14] The State asserts that it has no

                                               4
 1 mechanism of enforcing the cooperation of a federal agency, and therefore, would

 2 have no way to ensure compliance with its discovery obligations under the rule. [DS

 3 14-15] While this may be the case, our “Supreme Court is vested with the exclusive

 4 power to regulate pleading, practice, and procedure in the courts” and we are bound

 5 by the governing Supreme Court rules. State v. Valles, 2004-NMCA-118, ¶ 14, 140

 6 N.M. 458, 143 P.3d 496; see also Aguilera v. Palm Harbor Homes, Inc.,

 7 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (stating that the Court of Appeals

 8 is bound by Supreme Court precedent).

 9   {6}   In addition, we note, as we did in a footnote to our second calendar notice, that

10 due to recent amendments pursuant to Supreme Court Order No. 16-8300-001, the

11 2016 version of the local rule provides a different definition for “evidence deemed in

12 the possession of the state,” compare Rule LR 2-400(D)(3) (2014), with Rule LR 2-

13 400(D)(4) (2016), providing that “[e]vidence is deemed to be in possession of the state

14 for purposes of this rule if such evidence is in the possession or control of any person

15 or entity who has participated in the investigation or evaluation of the case.” Rule LR

16 2-400(D)(4) (2016). Therefore, for any new cases filed after February 2, 2016, in

17 cases such as this where a dismissal without prejudice is entered, a different, more

18 narrow definition applies, under which evidence from a federal law enforcement

19 agency may or may not be deemed to be in the possession of the State.



                                               5
 1   {7}   The State also argues that dismissal was erroneous where the existence of the

 2 ROIs was speculative at the time of dismissal. [MIO 16] Apparently the parties both

 3 became aware of their potential existence at Detective Cooksey’s pre-trial interview

 4 on May 5, 2015. [MIO 16] Therefore, the State asserts that at the time of dismissal,

 5 the ROIs were potentially additional information or evidence not yet received by the

 6 State. [MIO 17] The State contends that the rule’s “continuing duty to disclose

 7 additional information to the defendant within five (5) days of receipt of such

 8 information,” Rule LR 2-400(D)(3) (2014), contemplates that the State is not

 9 obligated to disclose the ROIs until five (5) days after the State has actually received

10 them. [Id.] Therefore, the State submits, the district court should have, at minimum,

11 afforded the State an opportunity to comply with Rule LR 2-400(D)(3) (2014),

12 governing the disclosure of additional information. [Id.] We disagree. The language

13 immediately following states: “Evidence in the possession of a law enforcement

14 agency or other government agency is deemed to be in possession of the state for

15 purposes of this rule.” Because we hold that the ROIs qualify as evidence “made by

16 law enforcement officers or otherwise in possession of the [S]tate” as contemplated

17 by Rule LR 2-400(D)(1) (2014), were subject to disclosure, and were “in the

18 possession of a law enforcement agency or other government agency[,]” they were

19 “deemed to be in possession of the [S]tate for purposes of this rule.” Rule LR 2-

20 400(D)(3) (2014).

                                              6
1   {8}   For these reasons, and those stated in this Court’s second calendar notice, we

2 affirm.

3   {9}   IT IS SO ORDERED.

4                                                _______________________________
5                                                RODERICK T. KENNEDY, Judge

6 WE CONCUR:


7 ___________________________________
8 JONATHAN B. SUTIN, Judge


 9 _________________________________
10 J. MILES HANISEE, Judge




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