 1         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3         Plaintiff-Petitioner,

 4 v.                                                                 NO. 30,548

 5 MANUEL LEYBA,

 6         Defendant-Respondent.


 7 ORIGINAL PROCEEDING ON CERTIORARI
 8 Sam B. Sanchez, District Judge


 9 Gary K. King, Attorney General
10 Nicole Beder, Assistant Attorney General
11 Santa Fe, NM

12 for Petitioner


13 Hugh W. Dangler, Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM

16 for Respondent


17                     DISPOSITIONAL ORDER OF REVERSAL

18   {1}   This matter having come before the full Court on a petition for writ of

19 certiorari, the Justices having considered the briefs and other relevant file materials,
 1 and otherwise having fully informed themselves on the issues and applicable law as

 2 raised by the parties; and

 3   {2}   Each Justice having concurred that there is no reasonable likelihood that a

 4 written decision or opinion would affect the disposition of this appeal or advance the

 5 law of the State; and

 6   {3}   Acting within this Court’s discretion under Rule 12-405(B)(2) NMRA to

 7 dispose of a case by order, decision, or memorandum opinion rather than formal

 8 opinion because the “absence of substantial evidence disposes of the issue.”

 9 IT IS ADJUDGED THAT:

10   {4}   Facts and Proceedings Below. Defendant was charged with shooting at or

11 from a motor vehicle, contrary to NMSA 1978, Section 30-3-8(B) (1993), and

12 aggravated assault with a deadly weapon, contrary to NMSA 1978, Section 30-3-2

13 (1963), by allegedly shooting from a motor vehicle at Ronnie Tafoya and Juan

14 Roybal, and of assaulting Tafoya with a shotgun, on February 27, 2006. Tafoya called

15 the police, and Officer Tomas Romero responded to the scene and investigated.

16   {5}   After interviewing the alleged victims and Officer Romero, the only three

17 witnesses on the State’s witness list, defense counsel moved to exclude the trial

18 testimony of Tafoya and Roybal, based on allegations that Officer Romero had


                                             2
 1 “purposely or inadvertently” supplied information to the witnesses that Defendant had

 2 used a sawed-off shotgun and thereby tainted their independent memories and their

 3 potential trial testimony. The defense also argued that the State failed to provide in

 4 discovery what the officer in his own interview described as “some sort of audio” that

 5 he believed he had made of his initial interviews of Tafoya and Roybal, which

 6 allegedly would have disclosed the full context of any information supplied by the

 7 officer to the witnesses.

 8   {6}   The prosecutor responded that his files contained no audiotapes of the officer’s

 9 contact with the witnesses, but that he would check with the officer to determine

10 whether they even existed. The prosecutor further argued that before the court could

11 address any suppression of evidence analysis under State v. Chouinard, 96 N.M. 658,

12 634 P.2d 680 (1981), the State would need to have Officer Romero testify as to the

13 existence or non-existence of the tapes. At the conclusion of the motions hearing, at

14 which no testimony was taken from any witness, the court ruled from the bench: “The

15 Court is going to rule this way. Those audiotapes, if they exist, must be provided to

16 the Defendant by [Tuesday, January 16, 2007]. . . . If they are not, then the motion is

17 going to be granted.”

18   {7}   Later the same day at the January 12 motions hearing, the State filed what it


                                               3
 1 characterized as a “Motion to Reconsider Defendant’s Motion to Exclude Witnesses,”

 2 which alleged that Officer Romero had been contacted and had advised that he

 3 obtained only written, not taped, statements from Roybal and Tafoya, and that the

 4 State could not disclose audiotapes that never existed in the first place. The State’s

 5 motion also proffered that “Officer Romero is available to testify under oath

 6 concerning the non-existence of any audiotapes involving Juan Roybal and Ronnie

 7 Tafoya.”

 8   {8}   At the hearing on the State’s motion, the district court again took no testimony

 9 whatsoever, despite the State’s repeated proffer to have the officer, who was present

10 in court, “testify concerning those audiotapes,” to confirm that he had been mistaken

11 in his earlier belief that they had existed. The court denied the State’s motion without

12 permitting the officer to testify. Without addressing the issue of whether the tapes had

13 in fact ever existed, the court ruled that the State would not be allowed to present at

14 trial the testimony of its two victim-witnesses because the officer had tainted their

15 testimony:

16                It’s not always up to the jury to judge the credibility of the
17         witness. It’s up to the Court to determine whether or not the evidence
18         and witnesses that are to testify should be allowed to testify based on
19         certain events or whatever the argument is. In this case, the reason the
20         Court excluded the two witnesses were – in fact, the victims, I guess, is
21         because their testimony was tainted. The officer told them what was

                                               4
 1          going on. He didn’t leave it up to them to tell him. He told them.
 2          Therefore, planting that seed in the witnesses. He’s the one that told
 3          them it was a sawed off shotgun. They may have never known it was or
 4          they may have known it was; but if he had let them give their own
 5          statement without telling them what to do or say, it may have been
 6          different. Or it may have been the same. But now there’s no way to tell.
 7          So the ruling of the Court stands.

 8   {9}    In a very brief memorandum opinion, the Court of Appeals affirmed the district

 9 court’s exclusion of the witnesses’ testimony. The opinion indicated that the district

10 court had based its ruling on an adverse determination of the credibility of the

11 officer’s denial that the tapes existed: “[W]e believe that the existence of the audio

12 tapes involved a credibility determination, and we defer to the district court . . . .”

13 State v. Leyba, No. 27,478, slip op. at 2 (N.M. Ct. App. June 28, 2007). Despite the

14 fact that the district court had heard no testimony from the officer and had made no

15 finding that the tapes had ever existed, the Court concluded that “the exclusion

16 satisfied the test set forth in State v. Chouinard, 96 N.M. 658, 661, 634 P.2d 680, 683

17 (1981) because the evidence was material to the case and its unavailability prejudiced

18 the defense.” Id.

19   {10}   This Court granted the State’s petition for writ of certiorari. After consideration

20 of the briefs and the record, we conclude that there was no principled justification for

21 the exclusion of the testimony of the prosecution witnesses, and we reverse.


                                                 5
 1   {11}   Standard of Review. We review a district court’s admission or exclusion of

 2 evidence under an abuse of discretion standard.                   Ruiz v. Vigil-Giron,

 3 2008-NMSC-063, ¶ 7, 145 N.M. 280, 196 P.3d 1286. “An abuse of discretion occurs

 4 when the ruling is clearly against the logic and effects of the facts and circumstances

 5 of the case, is clearly untenable, or is not justified by reason.” State v. Balderama,

 6 2004-NMSC-008, ¶ 22, 135 N.M. 329, 88 P.3d 845. “Abuse of discretion exists when

 7 the trial court acted in an obviously erroneous, arbitrary, or unwarranted manner.”

 8 State v. Stills, 1998-NMSC-009, ¶ 33, 125 N.M. 66, 957 P.2d 51 (internal quotation

 9 marks and citation omitted).

10   {12}   There are two possible theories for the district court’s exclusionary ruling, (1)

11 the theory articulated by the district court, that the witnesses should be excluded

12 because the officer tainted their testimony, and (2) the theory relied on by the Court

13 of Appeals, that the witnesses should be excluded because the district court did not

14 believe the officer’s proffered account that the audiotapes had never existed, and that

15 the withheld or nonpreserved tapes were material to the taint issue.

16   {13}   The District Court’s “Tainted Witness” Theory. To the extent that the

17 district court found the officer had tainted the witnesses by disclosing an evidentiary

18 fact to them, Defendant’s alleged use of a sawed-off shotgun, that finding was an


                                                6
 1 abuse of discretion.

 2   {14}   The briefing of the parties has not cited any case or other authority to support

 3 the proposition that a witness may be barred from the witness stand because his or her

 4 testimony may have been affected by improper influences. Our own independent

 5 research has disclosed State v. Ruiz, 2007-NMCA-014, 141 N.M. 53, 150 P.3d 1003,

 6 in which the defense sought to exclude a child’s testimony on the theory that

 7 suggestive interview techniques had so severely undermined the reliability of her

 8 independent memories that she should be prohibited from testifying. Id. ¶ 21. The

 9 State argued that any negative effect that the various interviews might have had on the

10 reliability of the child’s recollections “did not provide an adequate basis for the

11 wholesale exclusion of her testimony.” Id. The Court of Appeals concluded that

12 although our courts have recognized the dangers associated with improper

13 suggestivity in interviewing young children, our courts have never adopted a

14 wholesale exclusion approach. Id. ¶ 22.

15          When an individual’s competency to testify is challenged, the district
16          courts are merely required to conduct an inquiry in order to ensure that
17          he or she meets a minimum standard, such that a reasonable person could
18          “put any credence in their testimony.”               State v. Hueglin,
19          2000-NMCA-106, ¶ 22, 130 N.M. 54, 16 P.3d 1113 (internal quotation
20          marks and citation omitted). This methodology stems from a core
21          principle of modern civil and criminal procedure, whereby questions of
22          credibility are consigned to juries, rather than judges.

                                                7
 1 Id. ¶ 23. The Ruiz Court held that the district court correctly denied the motion to

 2 exclude the child’s testimony, despite the fact that the district judge acknowledged

 3 that there was a “possibility that taint occurred.” Id. ¶ 24.

 4   {15}   Even if New Mexico law allowed the complete preclusion of a witness because

 5 of a tainting influence, nothing in this record could arguably justify such an exclusion.

 6 The defense itself, in its motion, alleged that the supplying of the information about

 7 the shotgun by the officer was done “purposely or inadvertently.” No testimony was

 8 ever introduced to show exactly what the officer said, in what context, with what

 9 intentions, and with what effect on the memory of the witnesses.

10   {16}   The parties have cited no authority that would support the proposition that an

11 officer’s disclosing to a witness any information about the case, in a police report or

12 otherwise, is a ground for exclusion of even part of a witness’s testimony, other than

13 in the limited constitutional context of eyewitness identifications. See State v.

14 Stampley, 1999-NMSC-027, ¶ 19, 127 N.M. 426, 982 P.2d 477 (holding manner in

15 which police showed a photographic array to the witnesses was not impermissibly

16 suggestive; questions did not implicitly encourage, and therefore taint, the witnesses’

17 identification of the defendant). While there generally are good reasons to try to avoid

18 this practice, it is a matter for cross-examination at trial, rather than an exclusion of


                                               8
 1 testimony from trial.

 2   {17}   Even in the unique eyewitness-identification context, an evidentiary hearing is

 3 required, at which the court can hear and consider testimony regarding the suggestive

 4 context, the reasons for any suggestivity, and whether or not, as in this case, there may

 5 have been an independent source for a reliable courtroom identification. See State v.

 6 Baca, 99 N.M. 754, 758, 664 P.2d 360, 364 (1983) (“[E]ven given the suggestiveness

 7 of an identification procedure, the linchpin in determining the admissibility of

 8 identification testimony is whether the testimony is reliable.”); State v. Cheadle, 101

 9 N.M. 282, 285, 681 P.2d 708, 711 (1983) (holding an in-court identification

10 admissible notwithstanding the fact that the witnesses, who had identified a defendant

11 from a photo array, had seen the defendant’s picture on either television or in the

12 newspaper).      Moreover, the remedy for impermissibly suggestive eyewitness-

13 identification procedures that destroy the reliability of a proposed in-court

14 identification is not a complete exclusion of the witness from the stand, but a focused

15 exclusion of that part of the testimony relating to the irreparably tainted identification.

16   {18}   It is the function of the jury as factfinder to determine the credibility and

17 reliability of trial witnesses, not that of the judge as gatekeeper. See State v.

18 Woodward, 121 N.M. 1, 7, 908 P.2d 231, 237 (1995) (noting substantial evidence


                                                9
 1 undermining a witness’s credibility goes to the weight and not to the admissibility of

 2 the evidence). Alleged inconsistencies in testimony are for the jury to resolve at trial.

 3 See State v. Hughey, 2007-NMSC-036, ¶ 16, 142 N.M. 83, 163 P.3d 470 (“To the

 4 extent the trial judge based his ruling on the credibility of the witness, he usurped the

 5 role of the jury.”). It is not for the district court to substitute its judgment for that of

 6 the factfinder. See id. (“It is the role of the factfinder to judge the credibility of

 7 witnesses and determine the weight of evidence.”); Balderama, 2004-NMSC-008, ¶

 8 36 (holding exclusion of relevant, non-cumulative testimony in error). In this case,

 9 it was an abuse of discretion to exclude the testimony of the witnesses on the ground

10 they had been tainted, with or without hearing the proffered evidence.

11   {19}   The “Refusal to Produce or Failure to Preserve” Theory. Although the

12 nonproduction of the allegedly missing audiotapes was not the stated basis for the

13 district court’s decision, the Court of Appeals improperly relied on Chouinard in

14 holding the district court did not abuse its discretion in excluding the witnesses. In

15 Chouinard, the question before our Court was what sanctions to apply against the

16 State for failure to preserve evidence. 96 N.M. at 660, 634 P.2d at 682. We applied

17 a three-part test to determine whether the deprivation of the evidence was reversible

18 error. Id. at 661, 634 P.2d at 683. The test is whether: (1) the State breached some


                                                10
 1 duty or intentionally deprived the defendant of evidence; (2) the evidence was

 2 material; and (3) the suppression of the evidence prejudiced the defendant. Id. (citing

 3 State v. Lovato, 94 N.M. 780, 782, 617 P.2d 169, 171 (Ct. App. 1980)). “The

 4 importance of the lost evidence may be affected by the weight of other evidence

 5 presented, by the opportunity to cross-examine, by the defendant’s use of the loss in

 6 presenting the defense, and other considerations.” Id. at 663, 634 P.2d at 685.

 7   {20}   Because the officer was not permitted to testify in this case, there is insufficient

 8 evidence as to whether there was a loss at all. Chouinard concerns the loss of

 9 evidence, and the crux of any given case where evidence is lost is whether the lost

10 evidence is material and its loss is prejudicial to the accused. Here, however, it

11 remains unclear if this case involves either a loss or destruction of evidence, or

12 whether the audiotape evidence ever existed in the first instance. This determination

13 cannot be made by a judge without even hearing the officer’s testimony. Second,

14 because the judge refused to hear the officer’s testimony as to the existence of the

15 audiotapes in question, excluding the State’s witnesses as a discovery violation was

16 an abuse of discretion. In McCarty v. State, 107 N.M. 651, 651, 763 P.2d 360, 360

17 (1988), the issue before this Court was whether it was an abuse of discretion for the

18 trial court to preclude witness testimony as a sanction against the defendant for failure


                                                 11
 1 to comply with a criminal discovery rule, which was a demand for notice of alibi on

 2 charges stemming from a burglary. The State filed a demand for notice of alibi, and

 3 the defendant subsequently filed a witness list containing the names and addresses of

 4 two witnesses, but did not identify them as alibi witnesses. Id. The Court weighed

 5 the following factors in deciding to reverse the sanctions: “(1) the effectiveness of

 6 less severe sanctions, (2) the impact of preclusion on the evidence at trial and the

 7 outcome of the case, (3) the extent of prosecutorial surprise or prejudice, and (4)

 8 whether the violation was willful.” Id. at 653, 763 P.2d at 362. On balance, the

 9 preclusion of the evidence at trial was significant. “The trial judge should consider

10 whether the noncompliance was a willful attempt to prevent the State from

11 investigating facts necessary for the preparation of its case. The trial judge then must

12 balance the resulting prejudice to the State against the materiality of the precluded

13 testimony to the outcome of the case.” Id. at 655, 763 P.2d at 364. The Court held

14 that under the totality of the facts and circumstances it was unreasonable to weigh the

15 balance against the defendant. Id. Failure to give alibi notice in the context of the

16 notice-of-alibi rule (1) did not frustrate the presentation of the State’s case in light of

17 the fact that the State had been able to interview the only two defense witnesses and

18 learn the substance of their testimony; (2) the precluded testimony was critical for the


                                               12
 1 defense to impeach the credibility of the State’s key witness; and (3) the conduct of

 2 defense counsel was not willfully noncompliant. Id. “Before resorting to preclusion,

 3 a trial judge should weigh not only the prejudicial effect of noncompliance on the

 4 immediate case, but also the necessity to enforce the rule to preserve the integrity of

 5 the trial process.” Id. (emphasis added).

 6   {21}   In this case, it is unclear whether there was any noncompliance at all in turning

 7 over the audiotapes, because the record is not developed as to the existence or non-

 8 existence of the audiotapes in question. The prejudice, moreover, of excluding the

 9 only two witnesses in the State’s case is severe. If, after testimony of the officer and

10 other material witnesses is heard, the judge determines that noncompliance was a

11 willful attempt to prevent the defense from investigating facts necessary for cross-

12 examination of the witnesses about the nature of the weapon they claim to have seen,

13 perhaps a focused exclusion of testimony about that particular subject may be a proper

14 remedy at that time. See Stills, 1998-NMSC-009, ¶ 43 (providing that a court is

15 within its discretion to preclude if the court determines information has been withheld

16 for a tactical advantage). There is insufficient evidence in the record before us,

17 however, to justify such an exclusion.

18   {22}   Both the refusal to hear the critically relevant proffered testimony of the officer


                                                13
 1 and the exclusion of the testimony of the two victim-witnesses on the evidence in this

 2 record constituted abuses of discretion. We therefore reverse and remand this matter

 3 to the district court, with instructions to vacate its order excluding the testimony of

 4 witnesses Tafoya and Roybal, and to conduct such further proceedings in this matter

 5 as are consistent with this Order.

 6   {23}   IT IS SO ORDERED:

 7                                         _________________________________
 8                                         EDWARD L. CHÁVEZ, Chief Justice


 9                                         _________________________________
10                                         PATRICIO M. SERNA, Justice


11                                         _________________________________
12                                         PETRA JIMENEZ MAES, Justice


13                                         _________________________________
14                                         RICHARD C. BOSSON, Justice


15                                         _________________________________
16                                         CHARLES W. DANIELS, Justice




                                             14
