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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          vs.                                                  No. 33,493
 5


 6 ASHLEY LE MIER,
 7         Defendant-Appellee.


 8 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
 9 Donna J. Mowrer, District Judge


10 Gary K. King, Attorney General
11 Santa Fe, NM

12 for Plaintiff-Appellant

13   The Law Offices of the Public Defender
14   Jorge A. Alvarado, Chief Public Defender
15   Sergio Viscoli, Appellate Defender
16   B. Douglas Wood III, Assistant Appellate Defender
17   Santa Fe, NM

18 for Defendant-Appellee
 1                             MEMORANDUM OPINION

 2 HANISEE, Judge.
 3 {1} The State appeals from the district court’s order excluding one of its witnesses,

 4 Ms. Divine Alcanzo. We issued a notice of proposed summary reversal. Defendant has

 5 filed a response to our notice. We are not persuaded that the district court properly

 6 exercised its discretion in excluding the witness. Accordingly, we reverse the district

 7 court’s ruling.

 8   {2}   Relying on the fairly high standard for witness exclusion articulated by our

 9 Supreme Court in State v. Harper, 2011-NMSC-044, ¶¶ 16-20, 150 N.M. 745, 266

10 P.3d 25, our notice proposed to hold that there was an insufficient showing of

11 culpability on the part of the prosecution and an insufficient showing of actual

12 prejudice to Defendant to warrant the exclusion of Ms. Alcanzo. In response to our

13 notice, Defendant argues that the facts justify the witness exclusion under Harper

14 [MIO 1-9, 13-19] or, alternatively, there are facts in dispute that warrant assignment

15 of this case to the general calendar. [MIO 10-12]

16   {3}   Defendant’s response emphasizes that the State violated a discovery order that

17 required the prosecution to set up a telephonic interview with Ms. Alcanzo, which was

18 put in place due to the State’s failure to provide the defense with accurate information

19 about her and other witnesses. [MIO 2-11, 13-17] Defendant’s response does not alter

                                              2
 1 our understanding or our view of the prosecution’s conduct. This Court is aware of the

 2 district court’s discovery order; the standard articulated in Harper contemplates the

 3 prosecution’s violation of a discovery order, however, and requires a high degree of

 4 culpability in violating a discovery order. See id. ¶ 17 (“Our case law generally

 5 provides that the refusal to comply with a district court’s discovery order only rises

 6 to the level of exclusion or dismissal where the State’s conduct is especially culpable,

 7 such as where evidence is unilaterally withheld by the State in bad faith, or all access

 8 to the evidence is precluded by State intransigence.”). Our notice detailed the

 9 prosecution’s conduct, and proposed to hold that it did not reflect such a degree of

10 culpability. Defendant’s response does not persuade us otherwise. The conduct

11 Defendant describes—including the prosecution’s failed attempts to set up an

12 interview between defense counsel and its uncooperative, out-of-state witness; its

13 failure to request additional time to arrange an interview; and its failure to attempt to

14 shorten the interview time the defense requested [MIO 6, 9, 15]—reflects negligence

15 in violating the discovery order, not the especially culpable conduct described in

16 Harper. See id.

17   {4}   As we indicated above, our notice also proposed to hold that the showing of

18 prejudice was insufficient to warrant witness exclusion. See id. ¶ 19 (“[E]ven when

19 a party has acted with a high degree of culpability, [however,] the severe sanctions of


                                               3
 1 dismissal or the exclusion of key witnesses are only proper where the opposing party

 2 suffered tangible prejudice.”). We observed that the district court’s oral ruling

 3 excluding the witness made no reference to any prejudice Defendant may have

 4 suffered, and it seemed to have ruled before Defendant made any written allegation

 5 of prejudice. [RP 186, 194-97] We further observed that Defendant did not make any

 6 claim as to the prejudice she may have suffered in her motions to exclude the witness,

 7 and only made an allegation of prejudice in her reply after the hearings were held,

 8 after the district court orally ruled, and after State filed its response to Defendant’s

 9 motions. [RP 194-97] Therefore, it appeared to us that the State lacked opportunity

10 to address Defendant’s allegation of prejudice, and there is no responsive briefing to

11 assist our review. More importantly, we expressed doubt that Defendant could

12 establish actual prejudice where there was no dispute that the State had provided

13 Defendant with all the written statements made by this witness. [RP 189]

14   {5}   In response to our notice, Defendant represents that her trial counsel recalled

15 having raised an allegation of prejudice before the district court ruled. [MIO 7, 10]

16 Defendant contends that this creates a disputed material fact that warrants assignment

17 of this case to the general calendar. [MIO 10-12] We are not persuaded. Defendant

18 does not state the specific points of her allegation of prejudice, and the record supports

19 only general assertions. [RP 196-97, 201] Defendant states that Ms. Alcanzo’s


                                               4
 1 testimony is crucial to the State, because she was a detention facility guard supervisor

 2 who supervised the search of Defendant at the detention center in which it was

 3 discovered that Defendant had hidden contraband in her vagina. [DS 2; MIO 5]

 4 Defendant contends that it was unclear when and where Ms. Alcanzo found the

 5 contraband, and trial counsel was uncertain about what evidence to expect from her.

 6 [MIO 5-6] Defendant does not dispute, however, that the witness’s statements were

 7 given to the defense well in advance, and Defendant does not explain the contents of

 8 those statements, and why they were so insufficient as to rise to the level of a

 9 complete withholding of evidence. See id. ¶ 20 (“The potential for prejudice is

10 manifest when, for example, material evidence is withheld altogether . . . or where the

11 State withholds evidence until the eleventh hour and then springs it on the defendant

12 . . . .”). Because the State made this witness’s location and her testimony known, this

13 case does not involve withholding of evidence or delayed disclosure. Under such

14 circumstances, “determination of prejudice is more elusive.” Id.

15   {6}   Without more specific argument in the record or on appeal showing prejudice

16 to the defense, we are not persuaded that Defendant suffered actual prejudice as a

17 result of the prosecution’s inability to schedule a interview within the time line

18 constructed by the district court.




                                              5
 1   {7}    Relative to this issue, as we stated in our notice, the district court seems to have

 2 refused consideration of a ruling that would “affect the evidence at trial and the merits

 3 of the case as little as possible,” see id. ¶ 16, by virtue of its declaration that no further

 4 continuances would be granted to permit access to the witnesses. [RP 141]                  {8}


 5          Lastly, to the extent that Defendant argues that the district court considered less

 6 severe remedies and was left with no other remedy short of relinquishing its ability to

 7 control its docket, [MIO 19] we are not persuaded that the district court complied with

 8 Harper. The district court had other means available to address the problem with an

 9 uncooperative, out-of-state witness than exclusion. In our view, Harper simply

10 prevents exclusion of a witness without a greater showing of culpability and prejudice.

11   {9}    For the reasons stated in this opinion and in our notice, we reverse the district

12 court’s exclusion of Ms. Alcanzo testimony and remand for further proceedings.

13   {10}   IT IS SO ORDERED.


14
15                                            J. MILES HANISEE, Judge

16 WE CONCUR:



17
18 JONATHAN B. SUTIN, Judge



                                                 6
1
2 LINDA M. VANZI, Judge




                          7
