 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date: January 24, 2017

 4 NO. 34,620

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellant,

 7 v.

 8 BENJAMIN SEIGLING,

 9       Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Charles W. Brown, District Judge

12 Hector H. Balderas, Attorney General
13 Santa Fe, NM

14 for Appellant

15 Bennett J. Baur, Chief Public Defender
16 Becca Salwin, Assistant Appellate Defender
17 Santa Fe, NM

18 for Appellee
 1                                        OPINION

 2 HANISEE, Judge.

 3   {1}   The State appeals the district court’s March 11, 2015 order excluding witnesses

 4 and suppressing evidence the State planned to present at Defendant Benjamin

 5 Seigling’s trial for alleged separate acts of commercial burglary and larceny at Valley

 6 High School in Albuquerque, New Mexico. The district court’s order was premised

 7 on the case management pilot rule locally implemented by Supreme Court Order No.

 8 16-8300-001 in Bernalillo County, LR2-400 NMRA (2014)1 (the local rule). The

 9 local rule permits, and often requires, sanctions based on the State’s failure to comply

10 with discovery and timeliness requirements contained therein. See LR2-400(D)(4),

11 (I) (2014).

12   {2}   Called upon by this appeal to reconcile application of our Supreme Court’s

13 precedent limiting district courts’ discretion to sanction with the local rule’s language

14 that “existing case law on criminal procedure continue[s] to apply to cases filed in the

15 Second Judicial District Court, but only to the extent [it] do[es] not conflict with this

16 pilot rule[,]” LR2-400(A) (2014), this Court certified this matter to our Supreme

17 Court. But our Supreme Court quashed certification, stating that “the Court is


           1
18           Pursuant to Supreme Court Order No. 16-8300-015, former LR2-400 (2014) was
19 recompiled and amended as LR2-308 NMRA, effective December 31, 2016. Any reference
20 to the current Rule in this opinion will be cited as LR2-308.
 1 confident that the Court of Appeals is fully capable of applying this Court’s textual

 2 direction in LR2-400(A) that prior procedural precedents apply to cases governed by

 3 the new procedural case management rule only ‘to the extent they do not conflict

 4 with’ LR2-400[.]” Now having considered the text of the local rule alongside what

 5 we perceive to be the non-conflicting mandates of prior New Mexico Supreme Court

 6 decisions governing criminal procedure, we reverse the district court’s order

 7 excluding the State’s witnesses and suppressing all audio and visual evidence.

 8   {3}   At the outset, we note that since the enactment of the original version of the

 9 local rule on November 6, 2014, our Supreme Court has promulgated a revised

10 version altering various provisions and containing the same, identically worded non-

11 conflict provision. See LR2-308. Thus, all criminal cases filed or pending in the

12 Second Judicial District Court are subject to new case management deadlines based

13 on one of three currently existing rules. The amended version of the local rule is

14 effective for all cases pending or filed on or after February 2, 2016, in addition to any

15 cases filed prior to February 2, 2016, where the track assignment was not made until

16 February 2, 2016, or later. See LR2-308 (stating that “as amended by Supreme Court

17 Order No. 16-8300-001, effective for new cases filed and for pending cases in which

18 a track assignment is made on or after February 2, 2016”). The original version of the

19 local rule, which became effective on February 2, 2015, applies to this and all cases


                                               2
 1 filed with the district court between July 1, 2014, and February 2, 2016. See LR2-

 2 308(B)(1) (stating that “[c]riminal cases filed on or after July 1, 2014,” shall be

 3 assigned to the new calendar). Finally, cases filed before July 1, 2014, are subject to

 4 a special calendar rule enacted by the Second Judicial District Court pursuant to the

 5 requirements of the local rule. See LR2-400.1 NMRA (2015) (special calendar rule);

 6 see also LR2-400(B)(1) (2014) (requiring implementation of special calendar rule);

 7 LR2-308(B)(1) (same).

 8 BACKGROUND

 9   {4}   Defendant was indicted on September 5, 2014. After the original version of the

10 local rule became effective on February 2, 2015, a scheduling conference was held

11 on February 16, 2015. Defendant had previously filed a motion to exclude witnesses

12 based, in large part, on the State’s refusal to assist in scheduling witness interviews

13 in the four months since Defendant had been arraigned. Defendant’s motion was

14 denied, and the case was assigned to Track 1 under the local rule. A scheduling order

15 was entered on February 20, 2015, and trial was scheduled for July 20, 2015, “within

16 180 days of the triggering event in this case.” The scheduling order set other

17 deadlines but did not denote a date by which the completion of witness interviews

18 was required.




                                              3
 1   {5}   On February 24, 2015, Defendant filed two motions. The first was a second

 2 motion to exclude witnesses because Defendant’s counsel had subpoenaed four

 3 officers via Albuquerque Police Department Court Services and only one appeared

 4 to be interviewed. Defendant contended that two of the officers ignored the subpoena,

 5 and one was on military leave. The State responded and offered to accept

 6 responsibility for scheduling the officers’ interviews rather than having their

 7 testimony excluded.

 8   {6}   The second motion Defendant filed was a motion to dismiss or, as a lesser

 9 alternative sanction, to suppress based upon the State’s failure to comply with its

10 discovery obligations. That motion asserted that the State had not provided (1) lapel

11 recordings, (2) the detective’s first interview with Defendant, and (3) the detective’s

12 second interview with Defendant. Defendant argued that the State failed to satisfy the

13 new discovery requirements of the local rule, which requires the State to provide

14 documentary, audio, and video evidence at a defendant’s arraignment or within five

15 days of when a written waiver of arraignment is filed. See LR2-400(D)(1) (2014).2 To

16 this motion, the State responded that a speed letter was provided on November 21,

17 2014, “that would permit counsel’s access to this evidence for copying,” but stated


         2
18         Rule 5-501(A) NMRA (2007), in effect during the four months prior to the
19 applicability of the local rule, requires production of these materials within ten (10)
20 days of arraignment.

                                              4
 1 also that Defendant’s attorney was notified on March 4, 2015, that the recordings

 2 were available to pick up from the district attorney’s office. The State added that due

 3 to the lack of a pretrial interview deadline and the fact that the motions deadline was

 4 not until May 29, 2015, there was no prejudice to Defendant.

 5   {7}   Following a hearing on March 11, 2015, the district court granted Defendant’s

 6 motion to exclude witnesses and suppressed all audio and video evidence. The district

 7 court entered a form order the same day.3 The State appeals.




           3
 8           The district court’s form order indicates that Defendant’s motion to exclude
 9   was granted and Defendant’s motion to dismiss was denied. But it was within his
10   motion to dismiss that Defendant sought suppression of all audio and video
11   evidence—relief the State maintains was granted orally by the district court.
12   Generally, we consider oral rulings only to the extent they do not conflict with written
13   rulings of the district court. See Enriquez v. Cochran, 1998-NMCA-157, ¶ 25, 126
14   N.M. 196, 967 P.2d 1136 (“Formal written orders filed of record normally supersede
15   oral rulings, and oral rulings cannot normally be used to contradict written orders.”);
16   see also State v. Morris, 1961-NMSC-120, ¶ 5, 69 N.M. 89, 364 P.2d 348 (“An oral
17   ruling by the trial judge is not a final judgment. It is merely evidence of what the
18   court had decided to do but he can change such ruling at any time before the entry of
19   a final judgment.”). Here, the form order appears to be ambiguous. In this Court’s
20   calendar notice we proposed to accept the State’s assertion in its docketing statement
21   as true, see State v. Calanche, 1978-NMCA-007, ¶ 10, 91 N.M. 390, 574 P.2d 1018
22   (stating that the factual recitations in the docketing statement are accepted as true
23   unless the record on appeal shows otherwise), and directed Defendant to inform us
24   if the State was incorrect that the audio and video evidence had been suppressed.
25   Given that Defendant raised no challenge to this fact in his memorandum in
26   opposition, we rely on the State’s assertion.

                                                5
 1 DISCUSSION

 2   {8}    The State raises six issues on appeal challenging the exclusion of witnesses and

 3 the suppression of audio and video evidence. To resolve them, this Court must

 4 reconcile any conflicts between the provisions of the local rule, pre-existing rules of

 5 criminal procedure, and related case law governing the district court’s discretionary

 6 use of such sanctions. We begin with a discussion of pertinent requirements of the

 7 local rule, and then turn to restrictions on the district court’s exercise of discretion

 8 established by case law. We conclude by examining the specific facts of this case.

 9 I.       The Local Rule’s Provisions

10   {9}    The local rule creates clear and limited time frames for the progression of

11 criminal cases in the Second Judicial District Court. Both the original and amended

12 versions of the local rule contain specific requirements that govern the exchange of

13 discovery and the scheduling of various events that mark the progression of a

14 criminal case and contemplate the imposition of sanctions in the event the new

15 discovery and scheduling requirements are not adhered to.

16 A.       Discovery Provisions

17   {10}   Under the local rule, the State is required to make all initial disclosures

18 described in Rule 5-501(A)(1)-(6) NMRA “at the arraignment or within five (5) days

19 of when a written waiver of arraignment is filed[.]” LR2-400(D)(1) (2014); see also


                                                6
 1 LR2-308(D)(1) (same). Additional disclosures also then due include “phone numbers

 2 and email addresses of witnesses if available, copies of documentary evidence, and

 3 audio, video, and audio-video recordings made by law enforcement officers or

 4 otherwise in possession of the state,” and “a ‘speed letter’ authorizing the defendant

 5 to examine physical evidence in the possession of the state.” LR2-400(D)(1) (2014).4

 6 The state may only withhold the requisite witness contact information if it first

 7 “seek[s] relief from the court by motion, for good cause shown . . . if necessary to

 8 protect a victim or a witness” and then must “arrange for a witness interview or

 9 accept at its business offices a subpoena for purposes of [a] deposition under Rule 5-

10 503 NMRA.” LR2-400(D)(2) (2014); see also LR2-308(D)(2) (same). The state is

11 further assigned “a continuing duty to disclose additional information to the

12 defendant within five (5) days of receipt of such information[.]” LR2-400(D)(3)

13 (2014); see also LR2-308(D)(3) (same). The continuing duty encompasses later-

14 obtained evidence “in the possession of a law enforcement agency or other

15 government agency.” LR2-400(D)(3) (2014).5

          4
16          But see LR2-308(D)(1) (amending the disclosure provision to require the state
17 to “provide addresses, and also phone numbers and email addresses if available, for
18 its witnesses that are current as of the date of disclosure” (emphasis added)).
          5
19          But see LR2-308(D)(4) (amending the definition of what is in the possession
20 of the state to “evidence [that] is in the possession or control of any person or entity
21 who has participated in the investigation or evaluation of the case” (emphasis
22 added)).

                                              7
 1   {11}   The original version of the local rule states that the district court may sanction

 2 the State if it violates these discovery provisions. Specifically, the local rule provides:

 3          If the state fails to comply with any of the provisions of this rule, the
 4          court may enter such order as it deems appropriate under the
 5          circumstances, including but not limited to prohibiting the state from
 6          calling a witness or introducing evidence, holding the prosecuting
 7          attorney in contempt with a fine imposed against the attorney or the
 8          employing government office, and dismissal of the case with or without
 9          prejudice. If the case has been re-filed following an earlier dismissal,
10          dismissal with prejudice is the presumptive outcome for a repeated
11          failure to comply with this rule.

12 LR2-400(D)(4) (2014).6

13 B.       Scheduling Provisions

14   {12}   Pursuant to the local rule, cases must be placed on one of three tracks (Track

15 1, Track 2, or Track 3), based on a consideration of the complexity of the case and the

16 number of witnesses and time needed to address evidentiary issues. See LR2-

17 400(G)(3) (2014); LR2-308(G)(3). The presumption, according to the local rule, is

18 that “most cases will qualify for assignment to [T]rack 1” and that “written findings

19 are required to place a case on [T]rack 3.” LR2-400(G)(3)(a), (c) (2014); see also

20 LR2-308(G)(3)(a)-(b) (same).

            6
21          But see LR2-308(I) (governing the use of sanctions and replacing the language
22   previously set forth in LR2-400(D)(4) (2014) with that set forth in LR2-308(I)(1),
23   which provides that “[i]f a party fails to comply with any provision of this rule or the
24   time limits imposed by a scheduling order entered under this rule, the court shall
25   impose sanctions as the court may deem appropriate in the circumstances and taking
26   into consideration the reasons for the failure to comply” (emphases added)).

                                                8
 1   {13}   To this end, the district court is required to issue a scheduling order that

 2 “assigns the case to one of three tracks and identifies the dates when events required

 3 by that track shall be scheduled[.]” LR2-400(G)(4) (2014); see also LR2-308(G)(4)

 4 (same). According to the original version of the local rule, Track 1 requires that trial

 5 commence within 180 days of arraignment, waiver of arraignment, or other applicable

 6 triggering event. LR2-400(G)(4)(a), (H) (2014) (identifying other applicable

 7 triggering events to be any determination of competency, mistrial order, mandate

 8 following appeal, date of arrest after failure to appear, date removed from pre-

 9 prosecution, and date case was severed where previously joined). Track 2 requires

10 that trial commence within 270 days of a triggering event, LR2-400(G)(4)(b) (2014),

11 and Track 3 within 365 days, LR2-400(G)(4)(c) (2014).7 Within each of these tracks,

12 the local rule provides deadlines for plea agreements; pretrial conferences; notices of

13 need for a court interpreter; pretrial motions, responses, and hearings; witness

14 interviews; and the disclosure of scientific evidence. See LR2-400(G) (2014); see

15 also LR2-400(G)(4)(a). With respect to witness interviews, in particular, the deadline

16 under Track 1 is 60 days prior to trial. See LR2-400(G)(4)(a)(vii) (2014). The same




          7
17          But see LR2-308(G)(4)(a)-(c) (amending the time for trial on Tracks 1, 2, and
18 3, to 210, 300, and 455 days, respectively, from arraignment or other triggering
19 event).

                                              9
 1 deadline for Track 2 cases is 75 days, LR2-400(G)(4)(b)(vii) (2014), and for Track

 2 3 is 100 days, LR2-400(G)(4)(c)(vii) (2014). See LR2-400(G)(4)(a)-(c) (same).

 3   {14}   The district court must impose sanctions for the failure to comply with any of

 4 the scheduling provisions of the local rule. See LR2-400(I) (2014), see also LR2-

 5 308(I) (modifying the structure of the mandatory sanction provision of the local rule).

 6 Specifically, as required by the original version of the local rule, the district court

 7 “shall impose sanctions as the court may deem appropriate in the circumstances,

 8 including but not limited to reprimand by the judge, dismissal with or without

 9 prejudice, suppression or exclusion of evidence, and a monetary fine imposed upon

10 a party’s attorney or that attorney’s employing office with appropriate notice to the

11 office and an opportunity to be heard.” LR2-400(I) (2014); see also LR2-308(I)(3)

12 (identifying witness exclusion and the imposition of civil or criminal contempt as

13 sanctions which a district court “may impose”).

14 II.      Preexisting Limitations on the Exercise of Sanction Discretion

15   {15}   Prior to enactment of the local rule, our Supreme Court set out clear limitations

16 on the exercise of a district court’s discretion to exclude witnesses in State v. Harper,

17 2011-NMSC-044, ¶¶ 16-20, 150 N.M. 745, 266 P.3d 25. Harper held that “the

18 exclusion of a witness is improper absent an intentional refusal to comply with a court

19 order, prejudice to the opposing party, and consideration of less severe sanctions.” Id.


                                               10
 1 ¶ 15. In reaching this determination, our Supreme Court noted that “[a] court has the

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

 3 prejudice to the opposing party” but that “[e]xtreme sanctions such as dismissal are

 4 to be used only in exceptional cases.” Id. ¶ 16 (internal quotation marks and citation

 5 omitted). Our Supreme Court pointed out that “[t]he trial court should seek to apply

 6 sanctions that affect the evidence at trial and the merits of the case as little as

 7 possible.” Id. (alteration, internal quotation marks, and citation omitted). Moreover,

 8 our Supreme Court stated that “the refusal to comply with a district court’s discovery

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

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

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

12 And that “even when a party has acted with a high degree of culpability, the severe

13 sanctions of dismissal or the exclusion of key witnesses are only proper where the

14 opposing party suffered tangible prejudice.” Id. ¶ 19; see id. ¶ 16 (stating that

15 “prejudice must be more than speculative; the party claiming prejudice must prove

16 prejudice—it is not enough to simply assert prejudice”). Finally, our Supreme Court

17 stated that “[p]rejudice does not accrue unless the evidence is material and the

18 disclosure is so late that it undermines the defendant’s preparation for trial.” Id. ¶ 20.

19 Therefore, to reiterate, Harper requires that in order for the district court to exclude


                                               11
 1 material witnesses there must be: (1) “an intentional refusal to comply with a court

 2 order[,]” (2) “prejudice to the opposing party[,]” and (3) “consideration of less severe

 3 sanctions[.]” Id. ¶ 15.

 4   {16}   Regarding Harper’s requirement that the opposing party demonstrate that it has

 5 been prejudiced in order to attain sanctions, Id. ¶ 16, and in particular the sanction of

 6 witness exclusion, id. ¶ 15, we take this opportunity to note that prejudice is not a

 7 prerequisite to the imposition of sanctions under the local rule given the mandatory

 8 nature of sanctions. See LR2-400(I) (2014); see also LR2-308 (I) (same).

 9 Consequently, to the extent the local rule diverges from Harper in this regard, the

10 local rule controls. See LR2-400(A) (2014); see also LR2-308(A) (same). But nothing

11 in the local rule can be read to eliminate the analytic role of prejudice to a defendant

12 in determining the severity of a sanction imposed on the state, and we continue to rely

13 on Harper in this regard, even in circumstances where no showing of prejudice is

14 required.

15   {17}   Even when not discussing the exclusion of witness testimony in particular, our

16 appellate decisions have placed limitations on the exercise of a district court’s

17 discretion to stringently sanction by excluding or suppressing evidence. While this

18 Court’s review of a district court’s imposition of sanctions is for an abuse of

19 discretion, we still look to “the nature of the conduct and level of culpability found


                                              12
 1 by the trial court and whether the trial court’s sanction appears more stern than

 2 necessary in light of the conduct prompting the sanction.” Enriquez,

 3 1998-NMCA-157, ¶ 20. “[P]art of our calculus includes a review of the trial court’s

 4 exploration of alternatives to the sanctions ultimately imposed.” Id. ¶ 21 (also

 5 describing the consideration of lesser sanctions as “a generally useful exercise both

 6 on appeal and for the trier in the first instance”); see id. ¶ 48 (affirming the imposition

 7 of sanctions that deprived the defendant of affirmative defenses when the trial court

 8 “explicitly considered other lesser alternatives and found them wanting”); see also

 9 Gonzales v. Surgidev Corp., 1995-NMSC-047, ¶ 33, 120 N.M. 151, 899 P.2d 594

10 (“The court need not exhaust all lesser sanctions, although meaningful alternatives

11 must be reasonably explored before the sanction of dismissal is granted.” (internal

12 quotation marks and citation omitted)).

13   {18}   We view our precedent, including our Supreme Court’s most recent expression

14 of it in Harper, to bind New Mexico courts to the requirement that lesser sanctions

15 be considered when fashioning a proper remedy for a party’s failure to abide by the

16 orders and rules of a court. Therefore, we assess the applicability or inapplicability

17 of our case law only from the standpoint of whether it is in direct conflict with any

18 specific provision of the local rule.




                                               13
 1 III.     No Case Law Conflicts Presented Under Specific Facts of This Case

 2 A.       District Court’s Exclusion of Witnesses

 3   {19}   Having considered the provisions of the local rule and the requirements of

 4 Harper, we conclude that under the facts of the present case, no conflict is presented

 5 and, therefore, Harper still limits the district court’s ability to exclude witnesses. As

 6 we explain below, our holding does not disregard the local rule’s requirement that

 7 sanctions be imposed for failure to comply with the time requirements of the local

 8 rule. See LR2-400(I) (2014). We observe first that while imposition of sanctions is

 9 mandatory, the type of sanction imposed is still within the discretion of the Second

10 Judicial District Court. See id. (providing that “the court shall impose sanctions as the

11 court may deem appropriate”). As such, the exercise of discretion to sanction remains

12 subject to the prudential limitations enunciated in Harper, 2011-NMSC-044, ¶ 16.

13 Additionally in the present case, we conclude that no deadline imposed by LR2-

14 400(G)(4)(a) (2014) was violated, and thus, no mandatory sanction was required

15 pursuant to LR2-400(I) (2014).

16   {20}   Defendant’s case began on September 5, 2014, and a scheduling conference

17 was held on February 16, 2015, soon after the local rule went into effect on February

18 2, 2015. While the scheduling order did not include a deadline for the completion of

19 witness interviews, the case was placed on Track 1 and the trial was set for July 20,


                                              14
 1 2015. The district court judge could have set a shorter time frame for the conclusion

 2 of witness interviews, see LR2-400(G)(5) (2014), but because no deadline for witness

 3 interviews was included in the scheduling order, the deadline for pretrial interviews

 4 was May 20, 2015, based on the requirements of the local rule. See LR2-

 5 400(G)(4)(a)(vii) (2014) (“Witness interviews will be completed sixty (60) days

 6 before the trial date[.]”).

 7   {21}   In the present case, Defendant scheduled four interviews to take place on

 8 February 24, 2015; two officers failed to attend without providing justification for

 9 their absence. The same day, Defendant moved to exclude those witnesses based on

10 their failure to appear. We calculate that at that point in the proceedings, there were

11 roughly three months left within which to reschedule the interviews; thus, it would

12 appear that sanctions other than exclusion of the witnesses could have still remedied

13 any violation that may have occurred. Additionally, we conclude that because

14 mandatory sanctions were not required under the local rule as no deadline had been

15 violated, and because the local rule does not mandate exclusion as a discovery

16 sanction pursuant to LR2-400(D)(4) (2014), under the facts of this case, Harper still

17 applies.

18   {22}   Defendant argues that the local rule supersedes Harper given the

19 comprehensive nature of the local rule. Defendant contends that under NMSA 1978,


                                             15
 1 Section 12-2A-10(D) (1997), “[i]f a rule is a comprehensive revision of the rules on

 2 the subject, it prevails over previous rules on the subject, whether or not the revision

 3 and the previous rules conflict irreconcilably.” While this argument may be

 4 persuasive under other circumstances, here, our Supreme Court has specified that

 5 “existing case law on criminal procedure continue[s] to apply to cases filed in the

 6 Second Judicial District Court . . . to the extent [it] do[es] not conflict with th[e] pilot

 7 rule.” LR2-400(A) (2014). While “the Legislature may enact rules affecting practice

 8 and procedure,” the Supreme Court may “exercise[] its inherent power to supersede

 9 any conflicting statutory provisions.” Grassie v. Roswell Hosp. Corp., 2008-NMCA-

10 076, ¶ 10, 144 N.M. 241, 185 P.3d 1091. Thus, to the extent the textual directive

11 contained in LR2-400(A) (2014) conflicts with Section 12-2A-10(D), we conclude

12 the local rule controls and, therefore, the comprehensive nature of the local rule does

13 not require that it prevail over prior rules even where no conflict exists.

14   {23}   Defendant also argues that the local rule directly and irreconcilably conflicts

15 with Harper. Defendant contends that the local rule and Harper cannot be reconciled

16 because the local rule “makes sanctions mandatory upon any violation, while Harper

17 . . . all but forbade sanctions.” However, what Defendant fails to acknowledge is that

18 Harper does not apply to all sanctions, but only to those sanctions, such as exclusion

19 of witnesses, that bar further prosecution by the State or that are the “functional


                                                16
 1 equivalent of dismissal.” Harper, 2011-NMSC-044, ¶ 21. Thus, under the facts of this

 2 case, even if we were to conclude that there was a violation of the timeline provisions

 3 of the local rule, there are still avenues available to the district court that allow it to

 4 choose an appropriate sanction that remedies the violation, but that does not

 5 effectively bar the continuation of prosecution by the State. For instance, the local

 6 rule clearly contemplates that dismissals without prejudice will be utilized by the

 7 Second Judicial District Court to enforce compliance. See LR2-400(I) (2014)

 8 (including dismissal without prejudice as one of the sanctions that may be utilized

 9 and providing that, “[i]f the case has been re-filed following an earlier dismissal

10 [without prejudice], dismissal with prejudice is the presumptive outcome for a

11 repeated failure to comply with this rule”); see also LR2-308(I)(2) (same). A

12 dismissal without prejudice would permit new deadlines to be established to allow

13 Defendant the meaningful opportunity to interview the witnesses against him, while

14 warning the State that further failures to adhere to the requirements of the local rule

15 may result in the State being disallowed from prosecuting Defendant.8




           8
16          We note that this avenue is curtailed to some degree by the revisions to the
17   local rule. See LR2-308(I)(4) (amending the local rule to prohibit the sanction of
18   dismissal, with or without prejudice, where “the state proves by clear and convincing
19   evidence that the defendant is a danger to the community” and “the failure to comply
20   with th[e] rule is caused by extraordinary circumstances beyond the control of the
21   parties”).

                                               17
 1   {24}   Moreover, to the extent Defendant contends that the local rule and Harper

 2 cannot be reconciled because the local rule “gives judges wide discretion to select

 3 among sanctions, while Harper severely limited a judge’s choice[,]” we disagree.

 4 Defendant characterizes the local rule as “requir[ing] mandatory sanctions, without

 5 restriction”; however, we note that the local rule does not provide the district court

 6 with a blanket discretion to impose any sanction it chooses, but qualifies the district

 7 court judge’s choice of sanction by requiring that it be “appropriate in the

 8 circumstances.” LR2-400(I) (2014). We do not interpret the broad language allowing

 9 for the choice of an “appropriate sanction” to mean the district court has unfettered

10 discretion; rather, we interpret this broad language as allowing this Court to reconcile

11 the requirements of Harper with the local rule under the facts of this case. Cf. § 12-

12 2A-10(A) (“If statutes appear to conflict, they must be construed, if possible, to give

13 effect to each.”). Given that our Supreme Court has specifically articulated in the

14 local rule that the provisions of the rule and prior case law should be reconciled

15 where possible, see LR2-400(A) (2014), we interpret the rule’s use of broad strokes

16 in discussing sanctions to allow for the continued application of Harper to the

17 sanction to which it applies, rather than intending Harper’s upending in only the

18 Second Judicial District. Given this Court’s role as an intermediate court, we

19 conclude that such a path is appropriate and sensible under these unique


                                              18
 1 circumstances that require us to apply the local rule, adhere to non-conflicting

 2 precedent, consider the interests of defendants and the state, and arrive at a workable

 3 methodology that district judges in the Second Judicial District can incorporate into

 4 the pre-trial litigation ongoing currently under LR2-308.

 5   {25}   In this case, and given the circumstances that preceded the sanctions imposed,

 6 it does not appear that the criteria established in Harper of (1) intentional, bad faith

 7 conduct, (2) consideration of lesser sanctions, and (3) tangible prejudice to the

 8 Defendant were considered by the district court. We therefore reverse the district

 9 court’s order excluding the witnesses from testifying and remand for consideration

10 of these factors.

11 B.       District Court’s Suppression of Audio-Visual Evidence

12   {26}   We posit similar concerns as those explained above with regard to the district

13 court’s decision to exclude all audio and visual evidence in the present case. With

14 respect to the suppression of audio and visual evidence, however, we note the State’s

15 clear violation of Rule 5-501(A) and the local rule. Thus, while we conclude that

16 some sanctions were appropriate, under our precedent all options should have

17 demonstrably been considered. See Enriquez, 1998-NMCA-157, ¶¶ 20-21; Bartlett,

18 1990-NMCA-024, ¶ 4.




                                              19
 1   {27}   As we have stated, the local rule requires that “copies of documentary

 2 evidence, and audio, video, and audio-video recordings made by law enforcement

 3 officers or otherwise in possession of the state” be provided to Defendant at the time

 4 of arraignment or within five days of a written waiver of arraignment. LR2-400(D)(1)

 5 (2014). Here, Defendant was arraigned before the effective date of the local rule and,

 6 thus, Rule 5-501 governed until the local rule took effect. The State’s assertion as to

 7 the deadline for providing copies of the evidence is resolved by its failure to timely

 8 provide them under either Rule 5-501(A) or the local rule. We conclude that it is not

 9 necessary to determine which date was required because, in the present case, the State

10 failed to meet either of these deadlines.

11   {28}   Moreover, to the extent the State contends that the requirements of LR2-400(D)

12 (2014) are satisfied by the provision of a speed letter, we disagree. The language

13 contained in the local rule resolves this issue:

14          The state shall disclose or make available to the defendant all
15          information described in Rule 5-501(A)(1)-(6) . . . at the arraignment or
16          within five (5) days of when a written waiver of arraignment is filed
17          under Rule 5-303(J) NMRA. In addition to the disclosures required in
18          Rule 5-501(A) . . . , at the same time the state shall provide phone
19          numbers and email addresses of witnesses if available, copies of
20          documentary evidence, and audio, video, and audio-video recordings
21          made by law enforcement officers or otherwise in the possession of the
22          state, and a “speed letter” authorizing the defendant to examine physical
23          evidence in the possession of the state.




                                               20
 1 LR2-400(D)(1) (2014). The language contained in this rule requires physical9 copies

 2 of documentary and audio-visual evidence in addition to the provision of a speed

 3 letter. See Starko, Inc. v. N.M. Human Servs. Dep’t, 2014-NMSC-033, ¶ 46, 333 P.3d

 4 947 (“New Mexico courts have long honored [the] statutory command [that the text

 5 of a statute or rule is the primary, essential source of its meaning] through application

 6 of the plain meaning rule, recognizing that when a statute contains language which

 7 is clear and unambiguous, we must give effect to that language and refrain from

 8 further statutory interpretation.” (alteration, internal quotation marks, and citation

 9 omitted)); Frederick v. Sun 1031, LLC, 2012-NMCA-118, ¶ 17, 293 P.3d 934 (“When

10 construing our procedural rules, we use the same rules of construction applicable to

11 the interpretation of statutes.” (internal quotation marks and citation omitted)).

12 Moreover, pursuant to the language of the local rule, a speed letter is intended to

13 allow the inspection of physical evidence—such as a gun or a knife. It is not intended

14 to allow the State to avoid providing actual copies of the documentary and audio-

15 visual evidence as required by the local rule.

16   {29}   Thus, for the reasons discussed above, the State was required to provide

17 Defendant copies of the lapel camera recording and the two interviews between

18 Defendant and detectives. Having failed to do so, the State was in violation of LR2-


            9
19              Copies may be provided electronically or in print. LR2-400(D)(5) (2014).

                                                21
 1 400(D)(1) (2014) and subject to sanctions pursuant to LR2-400(D)(4) (2014). Unlike

 2 the sanction provision governing violations of track deadlines, sanctions pursuant to

 3 LR2-400(D)(4) (2014) are purely discretionary. Id. (“If the state fails to comply with

 4 any of the provisions of this rule, the court may enter such order as it deems

 5 appropriate under the circumstances, including but not limited to prohibiting the state

 6 from calling a witness or introducing evidence.”).10 Given the discretionary nature of

 7 such sanctions, we do not discern any conflict between the local rule and the case law

 8 limiting the district court’s exercise of discretion when excluding evidence as a

 9 sanction, at least not under the facts of this case. We conclude again that the

10 principles set out above, requiring consideration of lesser sanctions and prejudice to

11 Defendant, still apply. Given that lesser sanctions are available but were not

12 considered, and that Defendant received the discovery four months prior to trial and

13 two months prior to the pre-trial motions deadline, we reverse the district court’s

14 order excluding all audio-visual evidence. We remand for consideration of an

15 appropriate sanction.

16   {30}   We continue to observe, however, that the State cannot blithely disregard the

17 requirements of the local rule, turn things over late, argue that there was no prejudice

          10
18           We note again that the amended version of the rule eliminated the district
19 court’s discretion in whether to sanction for discovery violations, replacing LR2-
20 400(D)(4) (2014) with LR2-308(I), applicable to any discovery or timeline violation
21 of the local rule. Thus, our conclusion on this issue is of limited applicability.

                                              22
 1 to a defendant’s case because the pre-trial motion deadline has not run, and avoid

 2 repercussions. The local rule requires that a defendant be provided copies of evidence

 3 against him at the time of arraignment. Moreover, the time frames set forth in the

 4 local rule are short, and delay is certain to impact the ability of the case to proceed in

 5 accordance with the track deadlines. While “[c]ourts should apply the extreme

 6 sanction of exclusion of a party’s evidence sparingly[,]” State v. Guerra, 2012-

 7 NMSC-014, ¶ 33, 278 P.3d 1031, we specifically note the availability of lesser

 8 sanctions, such as dismissal without prejudice, that may help to curtail the late

 9 disclosure of evidence in the future.

10 CONCLUSION

11   {31}   Our ruling today incorporates our understanding of the overarching purpose of

12 the local rule, that being to facilitate the progression of cases in the Second Judicial

13 District and lessen the duration of pending criminal proceedings. We do not believe

14 that the local rule was designed to serve as a technical mechanism by which important

15 witnesses in criminal cases are excluded, core evidence suppressed as a matter of first

16 resort, or cases themselves abruptly dismissed with prejudice. Nor do we think our

17 Supreme Court intended to, barring direct conflict with a specific provision of the

18 local rule, render Harper wholly inapplicable in but one of the thirteen judicial

19 districts in New Mexico. For these reasons, we reverse the district court’s order


                                               23
1 excluding witnesses and audio-visual evidence. While we note that there may be

2 situations in which the new case management pilot rule will conflict with case law

3 limiting the discretion of the district court to exclude witnesses, suppress evidence,

4 and dismiss with prejudice, we conclude that the facts of this case present no such

5 conflict.

6   {32}   IT IS SO ORDERED.


7
8                                         J. MILES HANISEE, Judge

9 WE CONCUR:


10
11 LINDA M. VANZI, Chief Judge


12
13 JULIE J. VARGAS, Judge




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