     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
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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. 29,868

 5 ARMANDO VASQUEZ,

 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   Margaret E. McLean, Assistant Attorney General
11   Joel Jacobsen, Assistant Attorney General
12   Santa Fe, NM

13 for Appellant

14 Jorge A. Alvarado, Chief Public Defender
15 Eleanor Brogan, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee


18                                 MEMORANDUM OPINION

19 KENNEDY, Judge.
 1   {1}   This case returns to us on remand from the Supreme Court to consider the case

 2 on its merits. See State v. Vasquez, 2014-NMSC-010, ¶¶ 2, 34, 36, 326 P.3d 447.

 3   {2}   The State appeals from an order of the district court that excluded testimony

 4 of the complaining witness and her mother. For the reasons that follow, we affirm the

 5 district court.

 6 I.      BACKGROUND

 7 A.      Facts and Procedural History

 8   {3}   The facts are undisputed by the parties. Armando Vasquez (Defendant) was

 9 accused of criminal sexual contact of the complaining witness (D.U.), a minor, in

10 addition to other charges. According to the State, her mother observed physical

11 injuries to D.U. when D.U. told her of the abuse, and was present on at least one

12 occasion when Defendant acknowledged his conduct toward D.U. Both were

13 regarded by the State as critically important witnesses, without whose testimony the

14 State could not proceed to trial. Despite their importance to the case, Mother was

15 never served with a subpoena for interviews or trial, and D.U. never appeared for an

16 interview or trial despite being subpoenaed, albeit being served later than permitted

17 by court rule.

18   {4}   The State had considerable trouble from the earliest dates of the case in

19 obtaining the cooperation of D.U. and her mother. After a meeting in early December
 1 2008 with her mother, D.U. and her mother did not appear for a January appointment

 2 with the prosecutor, nor did they respond to telephone calls from the district attorney

 3 thereafter. Throughout March 2009, the State made not less than seven attempts to

 4 contact D.U. and her mother without success. In May 2009, D.U.’s mother answered

 5 a telephone call from the district attorney’s office, identifying herself on the

 6 telephone, but “stated she did not have a daughter named [D.U.] and hung up” when

 7 the district attorney office’s employees identified themselves. A district attorney

 8 investigator and the prosecutor stopped by D.U.’s house about this time and, though

 9 they heard music that stopped when they knocked on the door, no one answered.

10   {5}   From his arrest on September 8, 2008, through the August 31, 2009 trial date,

11 Defendant remained in custody. The State filed its witness list on October 21, 2008,

12 listing three witnesses: D.U., her mother, and her grandmother, who was married to

13 Defendant. The notice listed the three witnesses’ address as “c/o DA’s Office.” The

14 defense had requested witness interviews of the DA in January, April, May, and June

15 2009. No interviews were set. In June, the State responded to another defense

16 request for interviews, stating that it would be necessary for the district attorney to

17 subpoena D.U. and her mother. No interviews were set. A defense request for the

18 witnesses’ addresses in order to subpoena them for an interview of its own drew a




                                              2
 1 response from the State that the subpoenas would have to come from the district

 2 attorney’s office. No interviews were set.

 3   {6}   Nearly six months after arraignment, on March 3, 2009, the State filed for its

 4 first extension of time under Rule 5-604 NMRA1, alleging specifically that “pretrial

 5 interviews still need to be conducted.” No interviews were scheduled through June

 6 2009, when the State requested a second extension, again alleging that interviews

 7 needed to be conducted. The State obtained the extension of time to September 8,

 8 and the trial was set for August 31, 2009.

 9   {7}   The State’s efforts for further contact with the witnesses lapsed until August

10 when the district attorney’s office resumed trying to get in contact with D.U. and her

11 mother. On August 12, 2009, the State filed two notices of statements for D.U. and

12 her mother to be held at the district attorney’s office on August 26, 2009, three

13 business days before trial. No indication that they were served with subpoenas

14 appears in the record. The prosecutor and a DA investigator finally found D.U. at her

15 school on August 24. During that contact, D.U. told the prosecutor and investigator

16 that the case had caused problems between her family and her that she did not like.

17 D.U. was personally served at that time with a subpoena to appear on August 26 for

           1
            In State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 p.3d 20, our Supreme
     Court withdrew the six-month rule provisions set forth in Rule 5-604 (B)-(E). This
     withdrawl was effective for cases pending as of May 12, 2010. The 2011 amendment to
     Rule 5-604 codified the rule stated in Savedra. Rule 5-604 NMRA comm. cmt.

                                              3
 1 the interview and also for trial on August 31. There is no record of a subpoena or

 2 notice of the interview ever being served on her mother, although D.U.’s mother’s

 3 subpoena for trial was posted on the door of her house on August 27 with a note

 4 inscribed to call the prosecutor “if you think you will not be able to make it to the

 5 trial.”

 6   {8}     Neither D.U. nor her mother appeared at the district attorney’s office on August

 7 26 for the scheduled interviews. On August 27, D.U.’s sister was served at D.U.’s

 8 house with another trial subpoena for D.U.. On that date, D.U.’s mother gave a note

 9 to the principal at the school, stating her displeasure with attempts to contact D.U. at

10 school and requesting that she not be taken out of class or off the school grounds

11 without D.U.’s mother being present.

12   {9}     Defense counsel and the prosecutor agreed to attempt another interview of D.U.

13 on Friday, August 28. The prosecutor arrived at D.U.’s school at 10:00 a.m. with an

14 investigator. When she was taken to the school’s office, D.U. had a telephone

15 conversation with her mother, who did not want her to be interviewed, and she was

16 returned to class. Upon defense counsel’s arrival at 10:30, D.U. refused to return to

17 the office to be interviewed, and the defense counsel had no contact with her. The

18 attorneys left the school at approximately 11:30, and Defendant promptly filed a

19 motion to exclude D.U.’s and her mother’s testimony.


                                                 4
 1 B.       The District Court Proceedings and Order

 2   {10}   At 2:05 p.m. that Friday afternoon before the Monday trial, the district court

 3 convened an emergency hearing at Defendant’s request. Defendant made an oral

 4 motion to the district court to exclude D.U. and her mother as witnesses in the case,

 5 citing a failure of the State to produce the witnesses. Defense counsel pointed out

 6 that it was the afternoon before trial, and the State had not yet made D.U. available.

 7 He stated that to go to trial without first interviewing D.U. would put the defense at

 8 a disadvantage and would result in unfair prejudice. The prosecutor argued that it had

 9 complied with its duty to make D.U. available at the high school and that it was her

10 refusal to participate, not its actions, that rendered her unavailable. The State

11 responded with a request for an order to show cause hearing on a later date to be

12 directed at D.U. and her mother as a “less severe alternative” than exclusion to

13 ascertain why they had not appeared in response to the subpoenas.

14   {11}   After hearing from the parties, the district court discerned the history of

15 requested interviews, and the State’s proprietary treatment of its witnesses, both on

16 its witness list and in its insistence that the witnesses be contacted through its office.

17 The district court held that “[w]hen the [district attorney’s] office takes that posture,

18 they take the responsibility to provide [the witnesses] in a timely manner. That not


                                               5
 1 having been done, any witness not provided for interviews by today will be excluded

 2 from testifying next week.” It granted the motion. The district court specifically

 3 recognized that had there been issues in securing the witnesses’s interviews,

 4 including failures to appear in January, the State could have referred the matter to law

 5 enforcement, and “there [had] been ample opportuity for motions or subpoenas, [but]

 6 not on the Friday afternoon before trial is scheduled.” The prosecutor agreed with the

 7 district court’s characterization of the facts. The district court did not rule on the

 8 State’s motion for an order to show cause that Friday afternoon, but denied it on

 9 Monday, the morning of trial, after D.U. and her mother had failed to appear for the

10 trial.

11   {12}   Prior to the trial convening on Monday, August 31, 2009, the district court

12 entered a written order, stating:

13          THIS COURT, being fully informed and after hearing argument by the
14          parties, does hereby grant defendant’s oral motion to exclude the state’s
15          witnesses that were not made available for interviews and denies the
16          state’s oral motion for a show cause hearing. In so ordering, the Court
17          finds:

18                1.     The defendant was arraigned on the above charges on
19                       September 8, 2008 and has been in custody since that date.

20                2.     The defendant requested interviews of the state’s witnesses
21                       for several months [preceding] trial.

22                3.     The address of several of the state’s witness was listed on
23                       the state’s witness list as “care of the D.A.’s office”;

                                               6
 1                4.    The state knew or should have known that the state’s
 2                      witnesses would be difficult to procure and thus complying
 3                      with the defendant’s several requests for pre-trial
 4                      interviews would be difficult to comply with;

 5                5.    Though judicial remedies exist which may have allowed
 6                      the state to procure the witnesses—such as issuing
 7                      subpoenas, requesting a show cause hearing, requesting
 8                      material witness warrants, etc.—the state failed to take
 9                      advantage of such remedies in a timely ma[nn]er;

10                6.    The state failed to provide [D.U.] or [her mother] for
11                      interviews;

12                7.    That the state waited until the day before trial to ask[] for
13                      judicial intervention in securing the state’s witnesses for
14                      trial;

15                8.    That the proper remedy for the state’s failure to provide
16                      timely and adequate discovery was exclusion of the state’s
17                      witnesses that were not made available for interviews.

18          THEREFORE, THE COURT does hereby exclude from trial the
19          testimony of [D.U.] and [her mother] because the state failed to comply
20          with New Mexico Rules of Criminal Procedure governing discovery.

21          THE COURT FURTHER ORDERS that the state’s motion to have a
22          hearing to show cause as to why [D.U.] failed to comply with the
23          subpoena is denied because it is untimely.

24   {13}   Monday morning, the case was called for trial. D.U. and her mother did not

25 appear, and the prosecutor asked the district court to reconsider its ruling excluding

26 their testimony. The district court declined, basing its decision on its assessment of

27 the State’s lack of vigorous pursuit of the case, the lack of timely notice and


                                               7
 1 subpoenas to the witnesses and that the Defendant had remained in custody charged

 2 with serious crimes.The district court stated that it would vacate the trial setting and

 3 begin the next trial on its trailing docket that day. The State took this interlocutory

 4 appeal, which we granted.

 5 II.      DISCUSSION

 6 A.       Standard of Review

 7   {14}   Our Supreme Court has declared that “a court’s inherent power is at the core

 8 of judicial authority,” including the “inherent power to impose a variety of sanctions

 9 on both litigants and attorneys in order to regulate their docket[ and] promote judicial

10 efficiency[.]” State ex rel. N.M. State Highway & Transp. Dep’t v. Baca, 1995-

11 NMSC-033, ¶¶ 11, 20, 120 N.M. 1, 896 P.2d 1148 (internal quotation marks and

12 citation omitted). “The decision to exclude evidence calls on judicial discretion to

13 weigh all the circumstances, including willfulness in violating the discovery rule, the

14 resulting prejudice to the opposing party, and the materiality of the precluded

15 testimony.”      State v. Guerra, 2012-NMSC-014, ¶ 33, 278 P.3d 1031. We

16 consequently review the exclusion of witnesses as sanction for a failure to provide

17 discovery for an abuse of discretion. State v. Harper, 2011-NMSC-044, ¶ 16, 150

18 N.M. 745, 266 P.3d 25. We are obligated to view the evidence and the reasonable

19 inferences arising from it in the light most favorable to the district court’s decision.


                                              8
 1 State v. Candelaria, 2008-NMCA-120, ¶ 12, 144 N.M. 797, 192 P.3d 792. If the

 2 district court may have decided the matter either way in a matter within its discretion,

 3 we will affirm. State v. Ferguson, 1990-NMCA-117, ¶ 15, 111 N.M. 191, 803 P.2d

 4 676. We can only reverse if we characterize the district court’s ruling as “clearly

 5 untenable or not justified by reason.” Candelaria, 2008-NMCA-120, ¶ 12 (internal

 6 quotation marks and citation omitted).

 7   {15}   The assessment of sanctions “depends . . . upon the extent of the Government's

 8 culpability . . . weighed against the amount of prejudice to the defense.” State v.

 9 Chouinard, 1981-NMSC-096, ¶ 12, 96 N.M. 658, 634 P.2d 680. Exclusion of

10 witnesses is proper in instances where the state’s conduct is especially culpable,

11 “such as where . . . all access to the evidence is precluded by State intransigence.”

12 Harper, 2011-NMSC-044, ¶ 17. A district court’s exclusion of witnesses is within

13 its discretion if the violation was willful, the opposing side was rendered unable to

14 interview and prepare for the testimony, and the lack of the testimony would be

15 prejudicial to a defendant’s ability to confront and cross-examine a state’s key

16 witness. Guerra, 2012-NMSC-014, ¶ 33. The prejudice we look for is limited to an

17 adverse impact upon the defense’s ability to prepare and present its case that is more

18 than speculative. Id. ¶ 19.




                                               9
 1   {16}   We have found “[w]illful disregard” where “the prosecutor was actually aware,

 2 or can be presumed to have been aware, of the potential consequences of his act or

 3 omission[.]” State v. Lucero, 1999-NMCA-102, ¶ 26, 27 N.M. 672, 986 P.2d 468.

 4 “[A]ny conscious or intentional failure to comply” with discovery rules, as opposed

 5 to accidental or involuntary non-compliance, should be characterized as “willful.”

 6 State ex rel. King v. Advantageous Cmty. Servs., LLC, 2014-NMCA-076, ¶ 14, 329

 7 P.3d 738 (internal quotation marks and citation omitted). No intent is required to be

 8 shown. Id.

 9 B.       The State Willfully Failed to Discharge Its Duty to Timely Prosecute the
10          Case

11   {17}   The State had an affirmative duty to “monitor the case and ensure that steps

12 were being taken to bring Defendant to trial.” State v. Stock, 2006-NMCA-140, ¶ 29,

13 140 N.M. 676, 147 P.3d 885. In Harper, our Supreme Court pointed out that the

14 state may not ordinarily have a duty to make witnesses available for interviews, but

15 “because the [s]tate . . . assumed the responsibility of scheduling witness interviews,

16 it had the obligation to follow through in good faith.” 2011-NMSC-044, ¶ 22. We

17 have previously observed that “[t]he government’s failure to make witnesses available

18 to the defense upon request constitutes ‘bureaucratic indifference.’”         State v.

19 Montoya, 2015-NMCA-___, ¶ 16, ___ P.3d ___ (No. 32,525, Feb. 25, 2015).



                                              10
 1   {18}   Where the witness’s testimony is essential to a case, “greater efforts [to

 2 produce a witness] would be required.” State v. Lopez, 1996-NMCA-101, ¶ 25, 122

 3 N.M. 459, 926 P.2d 784 (using the phrase “vigorous and appropriate”). Diligence in

 4 securing a witness’s appearance requires the use of “process or other lawful means[.]”

 5 State v. Haskins, 2008-NMCA-086, ¶ 29, 144 N.M. 287, 186 P.3d 916. The

 6 prosecution’s prior experience with the witness can bear on the reasonableness of its

 7 diligence. Previous cooperation and confirmation before a scheduled event can allow

 8 lesser efforts. See Harper, 2011-NMSC-044, ¶ 23; State v. Martinez,

 9 1984-NMCA-106, ¶ 12, 102 N.M. 94, 691 P.2d 887. However, where the State

10 knows that a witness has no inclination to appear, that calculus must change, and the

11 State must, in its diligence, employ legal methods to secure witness’s cooperation.

12 State v. Graham, 1993-NMCA-054, ¶¶ 9-10, 115 N.M. 745, 858 P.2d 412 (making

13 no effort to employ methods with legal effect and secure presence of an essential

14 witness with whom the state was unable to establish contact, who had not been served

15 with legal process, and was known not to want to testify is rightly considered to be

16 a lack of both due diligence and good faith); State v. Waits, 1978-NMCA-116, ¶ 5,

17 92 N.M. 275, 587 P.2d 53 (holding that issuance and service of ineffective process

18 “did not constitute good faith or due diligence on the part of the state in attempting

19 to secure the attendance of the complaining witness”).


                                             11
 1   {19}   The district court was blunt in its assessment of the State’s efforts in light of

 2 the case history: “Based on the State’s motion [to reconsider], all I see is a complete

 3 history of notice to the State that they had witnesses that they were going to have to

 4 get judicial intervention on.” The State never offered an excuse to the district court

 5 for D.U.’s mothers’s failure to appear on August 28, or on August 31, nor did it

 6 detail any efforts it made to legally insure either witness’s presence for interviews.

 7 The failure with regard to obtaining D.U.’s mother’s presence for interviews or

 8 testimony was total. Similarly, the State’s inadequate approach to eleventh-hour

 9 interviews in general, and particularly with regard to its failure to secure D.U.’s

10 participation in interviews is well within the bounds of willful disregard of their

11 duties.

12   {20}   The district court was fully apprised of the length of time during which the

13 State had taken no action in the face of these witnesses’s uncooperation. It found that

14 remedies “such as issuing subpoenas, requesting a show cause hearing, requesting

15 material witness warrants, etc.” were available and remained unemployed by the

16 State. This, in light of the State’s knowledge that D.U. and her mother did not intend

17 to cooperate with the prosecution, rendered the State’s failure to seek such remedies

18 “until the day before trial” unreasonable. The district court also discussed the possible

19 suppression of the statements for the State’s noncompliance with the rules for


                                               12
 1 statements and subpoenas, even if interviews had taken place, and thereby reinforced

 2 its view of the State’s culpability. See Rule 5-503(A) (stating that the notice of

 3 statement is to be served “upon the person to be examined” not less than five days

 4 prior to the scheduled date); Rule 5-511(B)(2) NMRA (stating that the subpoena is

 5 to be served “upon a person named therein . . . by delivering a copy thereof to such

 6 person”). The district court was clear in finding that “[t]here have been ample

 7 opportunit[ies] for motions or subpoenas” prior to August 28. We agree with the

 8 district court’s sentiments, all of which are based firmly on the undisputed evidence.

 9   {21}   The district court’s holding the State to have undertaken a responsibility that

10 they must discharge in a “timely manner” is entirely in line with Harper, 2011-

11 NMSC-044, ¶ 22. The State’s insistence on running interviews only through its

12 office, but not providing access to the witnesses, and then actively declining to

13 produce them when Defendant wanted to conduct interviews on its own, is not a

14 matter of late discovery, but a matter of no pretrial discovery of critical witnesses’

15 statements. A failure to timely schedule interviews constitutes a collapse of the

16 state’s duty to progress a case to trial. Cf. State v. Johnson, 2007-NMCA-107, ¶ 15,

17 142 N.M. 377, 165 P.3d 1153 (holding that refusal to schedule requested interviews

18 counts heavily against the state in speedy trial calculation); State v. Talamante, 2003-

19 NMCA-135, ¶ 13, 134 N.M. 539, 80 P.3d 476 (holding that, in a relatively simple


                                              13
 1 case, the nearly one-year delay in the state “producing its witnesses for defense

 2 interviews was unreasonable and cannot be condoned”). The State’s conduct was

 3 undertaken with manifest disregard for its duty in three respects. First, was the clear

 4 knowledge, for eight months or more, that D.U. and her mother were not cooperating.

 5 Second, was the fact that they failed to schedule interviews and obstructed

 6 Defendant’s attempt to do them on his own. Last, we note the State’s representation

 7 that a primary purpose of two rule extensions was to enable interviews, when the

 8 problem with the witnesses was known and the State was taking no action to secure

 9 their participation, whether willing or not. The latter is particularly questionable in

10 the face of utter failure to subpoena mother or compel an interview with D.U. just

11 days before trial. The State’s actions must accord with its obligations of good faith

12 and diligence. Its failure indicates bad faith and willful disregard of the situation it

13 caused.

14 C.       Efforts to Produce D.U. for Interview Show a Lack of Good Faith

15   {22}   Unlike Harper, 2011-NMSC-044, ¶ 23 where the State had contact with its

16 witness who unexpectedly did not appear, as well as time to reschedule interviews,

17 the State was on notice of problems in this case, yet waited until the last minute to

18 schedule interviews for which they gave inadequate notice. Caught short, the

19 prosecutor sought to schedule an interview the day before trial that D.U. again


                                              14
 1 refused to attend. The transcript of the hearing on August 31 indicates that

 2 Defendant’s trial was on a trailing docket, and the district court vacated this case,

 3 stating that it would begin another trial on that day as a result of the State’s inability

 4 to proceed to trial without its witnesses. The State was out of time to commence trial.

 5 In Harper, our Supreme Court excused witness’s absence from an interview a month

 6 before the trial as not culpable prosecutorial behavior because, although she had not

 7 been subpoenaed, she had confirmed that she would attend and had a history of

 8 cooperation and personal contact with the prosecutor. Id. The State has no such grace

 9 period on which to rely here, nor does it have the excuse the State had in Harper that

10 the witness had cooperated prior to her failing to appear for the interview. In this

11 case, the State never adequately subpoenaed D.U.’s mother, nor attempted to. The

12 State’s failure to seek any help from the court during the nine months it knew the

13 witnesses did not want to cooperate demonstrates its lack of good faith in discharging

14 its duty to make the witnesses available.

15   {23}   We agree with the district court that the history of the case was “notice to the

16 State that they had witnesses that they were going to have to get judicial intervention

17 on . . . starting . . . in January of 2009,” noting that the matter “could have been

18 referred to law enforcement,” and there was “ample opportunity for motions or

19 subpoenas, not on the Friday afternoon before trial is scheduled.” The defense,


                                               15
 1 having been deprived of all chances at an interview by the district attorney’s

 2 indifference, filed its emergency motion upon which the district court then convened

 3 its 2:05 p.m. hearing. The prosecutor still did not seek to have D.U. brought to court.

 4 Against standards set by the rules and our case law, the State’s failure was an

 5 unreasonable lack of action. As a result of the State’s willful indifference, Defendant

 6 was unable to interview the State’s key witnesses or prepare for their trial testimony.

 7 Thus, the State’s actions represent a failure of any diligence to a point of bad faith.

 8 D.       The State’s Conduct Was Sufficiently Culpable as to Justify Exclusion

 9   {24}   D.U.’s mother, who had actively resisted contact with the DA’s office, was

10 never noticed for a statement and did not appear at trial. We have no question that

11 excluding her testimony was supported by the circumstances of the case. The State

12 attempts to frame the issue regarding D.U. by asserting that despite being made

13 available at the high school she refused to cooperate with defense counsel at pretrial

14 interviews, thus attempting to place the burden on the defense to compel a statement.

15 This is not the case. The State subpoenaed her to discharge a duty it had assumed.

16 D.U. skipped the scheduled interview, and on the day before trial, she returned to

17 class before defense counsel arrived, and refused to appear at all. Given her history,

18 this was eminently foreseeable to the State, who had taken on the responsibility to her

19 for a witness interview with the defense. We have previously recognized that failure


                                             16
 1 to take measures to obtain the presence of recalcitrant witnesses when their desires

 2 are known constitutes a lack of good faith and due diligence in the prosecutor’s

 3 behavior.       Graham, 1993-NMCA-054, ¶ 12. See State v. Fernandez,

 4 1952-NMSC-087, ¶ 9, 56 N.M. 689, 248 P.2d 679 (holding that a party failed to show

 5 diligence when it only subpoenaed a witness ten days prior to trial in a seven-month-

 6 old case and no abuse of discretion occurred in denying a continuance under the

 7 circumstances). As a result, the exclusion of D.U.’s testimony was justified by the

 8 record.

 9 E.       Defendant Was Prejudiced

10   {25}   The district court summarized its position clearly:

11          I find no reason to reconsider my ruling from last Friday. This case is
12          a year old. The State’s had opportunities to get the [c]ourt involved.
13          Even had the interviews been held, they’d be subject to suppression
14          because they’re within a week of trial. This man is charged with serious
15          offenses. The State has an obligation to prosecute it in a vigorous
16          manner. It has not done so, whether it’s through the conflict with the
17          witnesses or not. I find no reason to reconsider, the motion to
18          reconsider is . . . denied.

19           The district court recognized that Defendant had been in custody for a year

20 “charged with serious offenses,” and the State was most certainly aware of the trial

21 date and its witness problems when it set its interviews. In light of the State’s almost

22 total disinclination to timely pursue its pretrial obligations, we regard the nearly one

23 year of pretrial incarceration that Defendant underwent to be oppressive. Moreover,

                                              17
 1 Defendant asserted prejudice should he be compelled to begin his trial without

 2 interviewing D.U. “[W]hen discovery has been produced late, prejudice does not

 3 accrue unless the evidence is material and the disclosure is so late that it undermines

 4 the defendant’s preparation for trial.” Harper, 2011-NMSC-044, ¶ 20. That is most

 5 certainly the case where access to the two most critical witnesses in a case is not

 6 meaningfully provided by the prosecution prior to trial.

 7   {26}   The standard for prejudice, set forth in Harper, was clearly met in this case.

 8 Id. ¶ 20. Defendant did not sit on his rights, but actively pursued interviews with

 9 D.U. and her mother, including investigating how to serve his own subpoena. The

10 State’s failure undoubtedly undermined Defendant’s ability to prepare for trial.

11 Meanwhile, Defendant remained in custody while the State did practically nothing.

12 The degree to which the prosecution failed to discharge its duties was prejudicial to

13 both Defendant and his rights to a trial in which he can adequately confront the

14 witnesses against him. We hold that the district court acted reasonably and within its

15 discretion and affirm its denial of the State’s motion to reconsider its belated oral

16 motion for an order to show cause to be issued against D.U. and her mother.

17 III.     CONCLUSION

18   {27}   We conclude that the State acted in willful disregard of its legal duties under

19 the rules of procedure and governing law to a point where its actions were undertaken


                                              18
 1 in bad faith. In light of the foregoing, we affirm the district court and remand for

 2 further proceedings consistent with this Opinion.

 3   {28}   IT IS SO ORDERED.



 4                                               _______________________________
 5                                               RODERICK T. KENNEDY, Judge


 6 WE CONCUR:



 7 ______________________________
 8 MICHAEL E. VIGIL, Chief Judge



 9 ______________________________
10 TIMOTHY L. GARCIA, Judge




11



                                            19
