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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. A-1-CA-34484

 5 MARIO ERNEST ORTIZ,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Cristina T. Jaramillo, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 L. Helen Bennett, P.C.
14 L. Helen Bennett
15 Albuquerque, NM

16 for Appellee

17                                 MEMORANDUM OPINION

18 KIEHNE, Judge.
 1   {1}   The State appeals from the district court’s order excluding all drug test results

 2 in a drug trafficking case as a sanction for the State’s untimely production of those

 3 drug test results to Defendant Mario Ernest Ortiz. Because the district court did not

 4 determine whether the State’s conduct prejudiced Defendant and because it should

 5 have considered less severe sanctions, we reverse and remand.

 6 BACKGROUND

 7   {2}   On May 15, 2014, a grand jury indicted Defendant for cocaine trafficking and

 8 conspiracy to commit cocaine trafficking, contrary to NMSA 1978, Section 30-31-

 9 20(A)(3) (2006), and NMSA 1978, Section 30-28-2(A) (1979). He was released on

10 bond on June 6, 2014. Defense counsel entered her appearance and requested

11 discovery on June 23, 2014.

12   {3}   At a status conference on December 12, 2014, defense counsel asked the district

13 court to dismiss the case based on the State’s failure to provide discovery. Defense

14 counsel stated that the State had so far provided only a copy of the complaint, but “no

15 actual police reports.” The district court, the State, and defense counsel agreed to give

16 the State “a two-week deadline to come to full compliance” with its disclosure duties.

17 Defense counsel also asked for another status conference in January 2015 “so we

18 know where we’re at with the case[.]” The district court agreed and orally set the

19 status conference for January 13, 2015, to “find out if [the State is] in compliance or



                                               2
 1 not[,]” or whether other agencies will need to be ordered to provide reports. The

 2 parties did not discuss drug test results at this hearing.

 3   {4}   A few days after this hearing, the district court filed a “notice of jury trial”

 4 which stated that a hearing expected to last fifteen minutes was set for January 13,

 5 2015. A few days after this notice was filed, the district court set a 15-minute status

 6 conference for January 28, 2015. Furthermore, the record shows that the purported

 7 jury trial had actually been set for January 12, 2015, not January 13.

 8   {5}   On January 5, 2015, the State filed a motion to continue the trial. The State

 9 explained that a status conference was supposed to be set on January 28, 2015. The

10 motion also stated that “[t]he State is not prepared to go to trial. Drug results have yet

11 to be received following a request that the drugs . . . be tested (submitted on December

12 16, 2014 . . . ).” Defense counsel opposed the State’s motion to continue the trial.

13   {6}   On January 12, 2015, the parties appeared before a different judge of the district

14 court than the judge who had presided over the December 12, 2014 status conference.

15 Defendant opposed the State’s motion for a continuance. Defense counsel stated that

16 the State had not responded to her request to schedule witness interviews and that she

17 had “not received the drug results in this case[.]” Defense counsel then orally moved

18 “to suppress the drug results, since they have not been turned over, in violation of the




                                               3
 1 discovery rules.” The State responded by pointing out that the trial date was set in

 2 error and that it did not yet have drug test results or the necessary witnesses prepared.

 3   {7}   The district court then said that this case was “not going to go forward.” It said

 4 that “[t]hese drug results should have been looked for and asked for the minute

 5 [D]efendant was . . . arrested. To wait six months to do . . . drug testing, is way too

 6 late, and it’s got to change.” The district court then gave the State the option to

 7 voluntarily dismiss the case or it would “entertain a written motion by defense counsel

 8 for suppression of the drug results for failing to comply with discovery in a timely

 9 manner.” The State responded that it would not dismiss the case. Defense counsel then

10 stated that she would prepare the suppression motion that afternoon. The district court

11 declared, “The drug results will be suppressed.” There was no discussion at the

12 hearing about any prejudice suffered by Defendant due to the State’s discovery

13 violations.

14   {8}   Defense counsel filed the suppression motion later that day. Defendant sought

15 “to exclude all drugs and drug results from the incident” that led to Defendant’s

16 indictment. The motion listed facts about the procedural history of the case, including

17 the State’s failure to timely produce witnesses and drug test results, and asserted that

18 “[t]he circumstances of the [S]tate’s noncompliance with discovery rules [h]as




                                               4
 1 prejudiced [D]efendant.” The motion, however, did not explain how Defendant had

 2 been prejudiced.

 3   {9}    On January 21, 2015, the State filed a document explaining its view of the

 4 status of the case, saying that “[d]rug results were disclosed on January 20, 2015” and

 5 that the State was “ready for trial.” Five days later, the district court filed an order

 6 granting Defendant’s motion to exclude the drug test results. The order did not contain

 7 any findings of fact, conclusions of law, or any statements about prejudice to

 8 Defendant; it merely stated that “[a]ll drug results stemming from the investigation”

 9 were excluded.

10   {10}   The State appeals, asserting, among other things, that the district court abused

11 its discretion when it excluded the drug test results because Defendant did not

12 demonstrate prejudice and the district court made no findings concerning prejudice.

13 We agree.

14 DISCUSSION

15   {11}   We review a district court’s order suppressing evidence as a sanction for a

16 disclosure violation for abuse of discretion. See State v. Harper, 2011-NMSC-044, ¶

17 16, 150 N.M. 745, 266 P.3d 25. “A court abuses its discretion when its ruling is

18 clearly against the logic and effect of the facts and circumstances of the case.” Id.

19 (internal quotation marks and citation omitted).



                                                5
 1   {12}   As an initial matter, we note that the evidence in this case was excluded one

 2 week before enactment of the Second Judicial District Court’s case management pilot

 3 program for criminal cases under LR2-400 NMRA (2014, recompiled and amended

 4 as LR2-308 NMRA, effective Dec. 31, 2016). Defendant’s suppression motion relied

 5 on Rules 5-501, 5-503, and 5-505 NMRA. The district court’s order does not rely on

 6 a rule or state a legal basis for its exclusion of the evidence. The State’s brief in chief

 7 does not refer to any rule as the basis for its argument. But Defendant’s answer brief

 8 acknowledges that the appeal should be “considered . . . [under the] requirements of

 9 Rule 5-501 and the local rules governing discovery in criminal matters, prior to the

10 enactment of special local rules.” We therefore resolve this appeal under the rules for

11 disclosure violation sanctions that were in place before the enactment of LR2-308, but

12 note that our conclusion would be no different if LR2-308 applied in this case. See

13 LR2-308(A) (“The Rules of Criminal Procedure for the District Courts and existing

14 case law on criminal procedure continue to apply to cases filed in the Second Judicial

15 District Court, but only to the extent they do not conflict with this pilot rule.”); State

16 v. Seigling, 2017-NMCA-035, ¶ 23, 392 P.3d 226 (concluding that the principles

17 stated in Harper continue to apply to LR2-308 sanctions that are the functional

18 equivalent of dismissal).




                                                6
 1   {13}   Rule 5-501(A)(4) requires the state to disclose to the defendant “any

 2 results . . . of scientific tests . . . within the possession, custody or control of the

 3 state[.]” Rule 5-501(H) provides that “[i]f the state fails to comply with any of the

 4 provisions of this rule, the court may enter an order pursuant to Rule 5-505 . . . or hold

 5 the prosecutor in contempt or take other disciplinary action pursuant to Rule 5-112

 6 NMRA.” Rule 5-505(A) imposes a continuing duty on the state to disclose material

 7 evidence. If the state fails to comply with its disclosure duties, “the court may . . .

 8 prohibit the [state] from . . . introducing in evidence the material not disclosed[.]” Rule

 9 5-505(B).

10   {14}   However, any serious sanction against the state, such as the exclusion of key

11 evidence, must be conditioned on a finding that the defendant has suffered prejudice.

12 Harper, 2011-NMSC-044, ¶ 19. In Harper, our Supreme Court held that exclusion of

13 witnesses as a sanction for failure to comply with the disclosure rules “requires an

14 intentional violation of a court order, prejudice to the opposing party, and

15 consideration of less severe sanctions[.]” Id. ¶ 2. In reaching this conclusion, our

16 Supreme Court recognized that exclusion of key witnesses in the case “deprived the

17 [s]tate of making a prima facie case against [the defendant], which is the functional

18 equivalent of a dismissal.” Id. ¶ 21. Thus, “the exclusion of witnesses should not be




                                                7
 1 imposed except in extreme cases, and only after an adequate hearing to determine the

 2 reasons for the violation and the prejudicial effect on the opposing party.” Id.

 3   {15}   As to the determination of prejudice, the party claiming prejudice has the

 4 burden to prove prejudice. Id. ¶ 16. “[I]t is not enough to simply assert prejudice.” Id.

 5 “[W]hen discovery has been produced late, prejudice does not accrue unless the

 6 evidence is material and the disclosure is so late that it undermines the defendant’s

 7 preparation for trial.” Id. ¶ 20. And, “when . . . the defendant has knowledge of the

 8 contents of the unproduced evidence, determination of prejudice is more elusive.” Id.

 9   {16}   In determining appropriate sanctions for Rule 5-501 disclosure violations, a

10 district court “should seek to apply sanctions that affect the evidence at trial and the

11 merits of the case as little as possible.” Harper, 2011-NMSC-044, ¶ 16 (internal

12 quotation marks and citation omitted). For example, dismissal without prejudice may

13 remedy the disclosure violation but would “not effectively bar the continuation of

14 prosecution by the [s]tate.” Seigling, 2017-NMCA-035, ¶ 23 (citing LR2-400(I)

15 (2014) to suggest that dismissal without prejudice is an effective sanction, because

16 where the case is refiled following dismissal without prejudice, dismissal with

17 prejudice is the presumptive sanction for continued failure to comply with the rule).

18   {17}   In this case, even if we were to assume that the State’s seven-month delay in

19 submitting the suspected cocaine to a laboratory for testing was “an intentional



                                               8
 1 violation of a court order”—the first prerequisite to severe sanctions under Harper,

 2 2011-NMSC-044, ¶ 2—we conclude that the district court abused its discretion in

 3 excluding the cocaine evidence. First, the district court did not conduct “an adequate

 4 hearing to determine the reasons for the violation and the prejudicial effect on the

 5 opposing party.” Id. ¶ 21. At the January 12, 2015 hearing, the district court

 6 admonished the State for waiting more than six months to submit the drugs for testing

 7 and determined that this case was “not going to go forward” without making any

 8 inquiries or findings about whether Defendant suffered the requisite prejudice.

 9 Second, Defendant did not meet his burden to prove prejudice. His suppression

10 motion contained only a bare assertion that he was prejudiced, which is not enough.

11 See id. ¶ 16. Third, the district court did not seek to apply a sanction “that affect[ed]

12 the evidence at trial and the merits of the case as little as possible.” Id. (internal

13 quotation marks and citation omitted). It excluded the key evidence in the case,

14 effectively depriving the State of its prima facie case against Defendant, which is the

15 functional equivalent of dismissal. See id. ¶ 21 (concluding that exclusion of key

16 witnesses was “the functional equivalent of a dismissal”). Although the district court

17 gave the State the “option” to voluntarily dismiss its own case, which the State

18 declined to do, the district court could still have dismissed the case without prejudice

19 on its own accord. See Seigling, 2017-NMCA-035, ¶ 23 (suggesting that dismissal



                                               9
1 without prejudice is an appropriate sanction because continued noncompliance with

2 the rules after refiling will presumptively result in dismissal with prejudice).

3 CONCLUSION

4   {18}   We reverse the district court’s order granting Defendant’s motion to exclude

5 drug test results and remand the case to the district court for further proceedings.

6   {19}   IT IS SO ORDERED.


7                                   __________________________________
8                                   EMIL J. KIEHNE, Judge


9 WE CONCUR:



10 _______________________________
11 LINDA M. VANZI, Chief Judge



12 ________________________________
13 DANIEL J. GALLEGOS, Judge




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