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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. 33,403

 5 MATTHEW MALDONADO,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Judith Nakamura, District Judge

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

11 for Appellant

12 Jorge A. Alvarado, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.
 1   {1}   The State appeals from a district court order excluding witnesses. We issued a

 2 calendar notice proposing to reverse. Defendant has responded with a timely

 3 memorandum in opposition. We reverse the district court.

 4   {2}   In this appeal, the State has challenged the district court’s order excluding three

 5 State witnesses for failure to appear for pre-trial interviews. “A court has the

 6 discretion to impose sanctions for the violation of a discovery order that results in

 7 prejudice to the opposing party.” State v. Harper, 2011-NMSC-044, ¶ 16, 150 N.M.

 8 745, 266 P.3d 25. But “the mere showing of violation of a discovery order, without

 9 a showing of prejudice, is not grounds for sanctioning a party.” Id. Once prejudice

10 is shown, any sanction should “affect the evidence at trial and the merits of the case

11 as little as possible.” Id. ¶ 16 (internal quotation marks and citation omitted). “Our

12 case law generally provides that the refusal to comply with a district court’s discovery

13 order only rises to the level of exclusion or dismissal where the [s]tate’s conduct is

14 especially culpable, such as where evidence is unilaterally withheld by the [s]tate in

15 bad faith, or all access to the evidence is precluded by [s]tate intransigence.” Id. ¶ 17.

16   {3}   Defendant argues that the State’s intransigence satisfied the Harper standard.

17 We disagree. Specifically, Defendant has been charged with careless driving and

18 driving on a suspended license. [RP 1] The district court scheduling order required

19 witness interviews to be completed by October 15, 2013. [RP 37] Four officers did not

20 appear at the October 9, 2013 interviews, and the district court excluded three of

21 them—one of whom was the officer who filed the criminal complaint. [RP 5, 63-64]

                                                2
 1 There was no showing below that the State acted in bad faith, or was otherwise

 2 “especially culpable,” as contemplated by Harper. Id. ¶ 17. To the contrary, the State

 3 explained that it learned that two of the officers no longer worked for the Isleta police,

 4 and another claimed she never received notice. [RP 56] To the extent that Defendant

 5 characterizes the State’s conduct as “intransigence,” it does not rise to the level

 6 contemplated by Harper, which requires “all access to the evidence” to be precluded

 7 by the intransigence. Id. ¶ 17. In addition, we believe that it was speculative to find

 8 that Defendant would suffer prejudice from the delay. [DS 4-5] See id. ¶ 16

 9 (“Prejudice must be more than speculative; the party claiming prejudice must prove

10 prejudice—it is not enough to simply assert prejudice.”). Finally, it appears that

11 Defendant knew the basic facts relating to the incident, and would not be blind-sided

12 by the late discovery of the information provided by the officers. See id. ¶ 20

13 (indicating that prejudice is not clearly shown when the “defendant has knowledge of

14 the contents of the unproduced evidence”).

15   {4}   For the reasons set forth above, we reverse.

16   {5}   IT IS SO ORDERED.


17                                                 ______________________________
18                                                 M. MONICA ZAMORA, Judge

19 WE CONCUR:


20 __________________________________

                                               3
1 MICHAEL D. BUSTAMANTE, Judge


2 __________________________________
3 MICHAEL E. VIGIL, Judge




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