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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. 34,923

 5 MATTHEW LEE ESPINOZA,

 6                  Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Alisa Ann Hadfield, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   Steven H. Johnston, Assistant Attorney General
12   Albuquerque, NM

13 for Appellant

14   Bennet J. Baur, Chief Public Defender
15   Santa Fe, NM
16   Sergio J. Viscoli, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellee

19                                 MEMORANDUM OPINION

20 HANISEE, Judge.
 1   {1}   The State appeals from the district court’s order dismissing the charges against

 2 Defendant Matthew Lee Espinoza without prejudice. This Court issued a first calendar

 3 notice proposing summary dismissal for lack of a final, appealable order. The State

 4 filed a timely first memorandum in opposition to this Court’s notice of proposed

 5 disposition. Following this Court’s decision in State v. Angulo, No. 34,714, mem. op.

 6 ¶ 1 (N.M. Ct. App. Jan. 5, 2016) (non-precedential), concluding that the State is

 7 entitled to an immediate right of appeal from the district court’s order dismissing the

 8 case without prejudice, we issued a second notice addressing the merits of the appeal

 9 and proposing to affirm. In response, the State filed a timely second memorandum in

10 opposition (MIO), which we have duly considered. Unpersuaded, we affirm.

11   {2}   In its MIO, the State concedes that it failed to disclose the CAD record as

12 required by the deadlines imposed by Second Judicial District Court Local Rule 2-400

13 NMRA. [2 MIO 3] However, the State argues that it was not required to disclose the

14 CAD record because there was no showing of materiality to the defense. [2 MIO 3-6]

15 In this Court’s second notice, we rejected the State’s contention that because it had no

16 intention of calling the field investigator as a witness at trial, it did not need disclose

17 the CAD record, [DS 5-6] by pointing out that Rule 5-501(A)(3) NMRA requires

18 disclosure of evidence “which [is] within the possession, custody or control of the

19 state, and which [is] material to the preparation of the defense or [is] intended for use


                                                2
 1 by the state as evidence at the trial[.]” [2 CN 5] However, we also point out that LR

 2 2-400(D)(1) NMRA does not contain any language limiting the State’s duty to provide

 3 copies of documentary evidence based on a lack of materiality to the defense. As our

 4 second notice observed, pursuant to LR 2-400(D)(1), the State is required to make all

 5 initial disclosures “described in Rule 5-501(A)(1)-(6) at the arraignment or within five

 6 (5) days of when a written waiver of arraignment is filed[.]” [2 CN 4] In addition to

 7 those disclosures, however, the State is also required to provide, at the same time,

 8 “copies of documentary evidence, and audio, video, and audio-video recordings made

 9 by law enforcement officers or otherwise in possession of the state[.]” [2 CN 4-5

10 (quoting LR 2-400(D)(1)] The Rule provides that evidence in the possession of a law

11 enforcement agency or other government agency is “deemed to be in possession of the

12 state for purposes of this [R]ule.” LR 2-400(D)(4). Therefore, we conclude that the

13 plain language of LR 2-400 is broader than that of Rule 5-501(A)(3), requiring the

14 State to provide to the defense copies of documentary evidence irrespective of a

15 showing of materiality.

16   {3}   For the foregoing reasons, we affirm.

17   {4}   IT IS SO ORDERED.


18                                                 _____________________________
19                                                 J. MILES HANISEE, Judge
20 WE CONCUR:

                                              3
1 __________________________________
2 MICHAEL E. VIGIL, Chief Judge


3 __________________________________
4 STEPHEN G. FRENCH, Judge




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