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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. 35,184

 5 VALENTIN GARCIA,

 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   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14 Bennett J. Baur, Chief Public Defender
15 Becca Salwin, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellee

18                                 MEMORANDUM OPINION

19 SUTIN, Judge.
 1   {1}   The State has appealed from an order dismissing the underlying case with

 2 prejudice. We previously issued a notice of proposed summary disposition in which

 3 we proposed to reverse. Defendant has filed both a memorandum in opposition and

 4 a motion to supplement the record. The State has responded in opposition to the

 5 motion. After due consideration, the motion is denied. With respect to the merits, we

 6 remain unpersuaded by Defendant’s arguments. We therefore reverse and remand.

 7   {2}   We previously set forth the pertinent background information and relevant

 8 principles of law in the notice of proposed summary disposition. To very briefly

 9 summarize, the underlying case was dismissed with prejudice as a sanction pursuant

10 to LR2-400 NMRA (recompiled and amended as LR2-308 NMRA, Dec. 31, 2016),

11 as a consequence of the State’s untimely production of bench notes associated with

12 scientific testing that was performed to establish the identity of a controlled substance.

13 [RP 75-77] The bench notes were produced 84 days prior to the trial setting, rather

14 than 120 or 90 days in advance thereof, as specified in LR2-308(G)(4)(a)(viii). [DS

15 3-4]

16   {3}   In the notice of proposed summary disposition, we observed that historically

17 the imposition of severe sanctions such as exclusion of evidence or dismissal with

18 prejudice has been “improper absent an intentional refusal to comply with a court

19 order, prejudice to the opposing party, and consideration of less severe sanctions.”


                                               2
 1 State v. Harper, 2011-NMSC-044, ¶ 15, 150 N.M. 745, 266 P.3d 25. Insofar as the

 2 district court remains at liberty to impose any sanction that conforms to the

 3 requirements of the existing case law, including Harper, we proposed to hold that

 4 these authorities may be harmonized, and as such, Harper should guide our analysis.

 5 See LR2-308(A) (providing that “existing case law on criminal procedure continue to

 6 apply to cases filed in the Second Judicial District Court, but only to the extent [the

 7 existing case law does] not conflict with [the local] rule”).

 8   {4}   In his memorandum in opposition, Defendant argues that Harper should be said

 9 to conflict with the local rule, and as such, Harper should be deemed inapplicable.

10 [MIO 10-16] We considered and rejected similar arguments recently, in the cases of

11 State v. Seigling, No. 34,620, 2017 WL 361661, 2017-NMCA-____, ¶¶ 22-24, ___

12 P.3d ___ (Jan. 24, 2017), and State v. Navarro-Calzadillas, No. 34,667, 2017 WL

13 361662, 2017-NMCA-___, ¶¶ 13-15, ___ P.3d ___ (Jan. 24, 2017).

14   {5}   We acknowledge that the local rule requires the imposition of sanctions for the

15 State’s failure to comply with the applicable deadline relative to the production of

16 scientific evidence. See LR2-400(I). However, lesser sanctions were still available to

17 the district court. See LR2-400(I)(1), (3)(a), (c), (e) (indicating that the court shall

18 impose whatever sanction that it “may deem appropriate in the circumstances[,]”

19 including but not limited to reprimand by the judge, a monetary fine, or dismissal


                                              3
 1 without prejudice). Under these circumstances, we have held that no conflict between

 2 the local rule and Harper exists, and as such, Harper continues to limit the district

 3 court’s discretion to impose the severest sanctions. See Navarro-Calzadillas, 2017-

 4 NMCA-___, ¶¶ 13-15.

 5   {6}   As described at greater length in the notice of proposed summary disposition,

 6 in this case the district court’s imposition of the severe sanction of exclusion of

 7 evidence and resultant dismissal with prejudice is not adequately supported. Although

 8 Defendant may take issue with our suggestion that the State’s violation of the

 9 discovery deadline was not intentional [MIO 1-4, 6-8], Defendant neither contends

10 that he suffered any specific form of prejudice nor suggests that the district court

11 considered less severe sanctions. [MIO 15] Because these prerequisites were not

12 satisfied, we conclude that the district court abused its discretion.

13   {7}   In his memorandum in opposition, Defendant argues that the State engaged in

14 other misconduct by violating LR2-308(D)(3) for failing to make a key witness

15 available for interview and for failing to transport Defendant to a scheduling

16 conference. [MIO 4, 5, 9] See id. (imposing a five-day disclosure deadline with

17 respect to evidence possessed by the prosecution). However, none of these alleged

18 violations formed the basis for the dismissal of the case. [RP 77] To the extent that

19 Defendant may suggest that these alleged violations supply an alternative basis for


                                              4
 1 affirmance, the apparent lack of development below persuades us otherwise. See

 2 generally State v. Ortiz, 2009-NMCA-092, 146 N.M. 873, 215 P.3d 811 (declining to

 3 consider a number of arguments concerning alleged discovery violations by the

 4 prosecution where those arguments were not adequately developed at the district court

 5 level).

 6   {8}     Accordingly, we reverse the district court’s order and remand for consideration

 7 of the Harper criteria and imposition of appropriate sanction(s).

 8   {9}     IT IS SO ORDERED.



 9                                           __________________________________
10                                           JONATHAN B. SUTIN, Judge


11 WE CONCUR:


12 _______________________________
13 LINDA M. VANZI, Chief Judge


14 _______________________________
15 STEPHEN G. FRENCH, Judge




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