State v. Harper

Certiorari Granted, June 2, 2010, No. 32,388
Certiorari Granted, June 24, 2010, No. 32,402

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-055

Filing Date: April 16, 2010

Docket No. 27,830

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

CURTIS HARPER,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
J. Michael Kavanaugh, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellant

Daniel M. Salazar
Albuquerque, NM

for Appellee

OPINION

KENNEDY, Judge.

{1} In this case, we are presented with another appeal from the consequences of the
State’s failure to abide by an order of the district court to complete witness interviews by a
certain deadline. Following a motion hearing in which the defense sought witness interviews
which had not occurred, the district court set a discovery deadline requiring that all witness
interviews in the case against Curtis Harper (Defendant) be completed by January 19, 2007.
We concern ourselves with two interviews: An interview with the alleged victim (SV) was
scheduled on the day of the deadline, but she was not under subpoena, and she failed to
appear. Next, despite the district court’s order, the State persisted in its refusal to schedule
an interview with the State’s expert witness, Dr. Renee Ornelas, because the defense had
never made arrangements prior to the interview to pay her expert witness fees. The Monday
following the missed deadline the State submitted a motion for an extension of time.
Defendant responded with a motion opposing the extension and a motion to exclude SV and
Dr. Ornelas as witnesses. Defendant’s motion to exclude the witnesses’ testimony was
granted, from which the State appeals.

{2} We first consider whether the district court abused its discretion in excluding SV
given that the State scheduled her interview on the discovery deadline, and that
approximately five months remained before the trial date, and conclude that reversal is in
order. Our second inquiry is whether the State’s expert was properly excluded where the
district court had been fully apprised that the prosecution refused to schedule an interview
until the defense affirmed it would pay witness fees, ordered that the interview be scheduled
irrespective of the State’s argument, and finally sanctioned the State when it intentionally
disobeyed the district court’s order. We reverse the district court as to the exclusion of SV’s
testimony and affirm as to the exclusion of Dr. Ornelas.

BACKGROUND

{3} In November 2004 Defendant was indicted and arrested on fifteen counts of criminal
sexual penetration of a minor in the first degree. Defendant remained incarcerated over two
years while awaiting trial. From his indictment and arraignment in late 2004 until December
11, 2006, Defendant’s trial date was pushed back multiple times through extensions granted
under Rule 5-604(C) and (D) NMRA. Each request cited the need to finish discovery,
“specifically any necessary [pretrial] interviews,” as a basis for the extensions, among other
things.

{4} Some witnesses, including SV and Dr. Ornelas, had not been interviewed by the trial
setting on December 11, 2006. At that setting, the defense requested of the district court a
“date certain by which witnesses be made available, and then if they’re not available or they
show an unwillingness to cooperate, perhaps we can take it from there.” The State made
clear that Dr. Ornelas was an essential witness and her materiality to its case is undisputed.
The State offered to set up the interview with SV at any time, but stated that it would not
schedule an interview with Dr. Ornelas until payment of her expert witness fees was
affirmed by the defense. The district court did not comment on the State’s position, but
simply imposed a deadline of January 19, 2007, to complete all witness interviews in
preparation for trial. The court specifically stated, “if there’s at least in the [d]efense’s mind
some continuing noncompliance, we’ll—the [c]ourt will consider any motions that you have
sometime after that and figure out if any remedy is necessary.” At the time, trial was set for
February 19. The State did not contest the order, or request that the district court attach any
conditions to the scheduling of the interviews. At no time during this case did the State
request a ruling as to whether its insistence on pre-payment of a witness fee was proper, nor
did it request an order from the district court to either compel Defendant to pay such a fee
or facilitate Defendant’s right to payment of the expert witness fee. It did, however, file a

2
Rule 5-604 petition on December 13, alleging that “[t]he defense has still not obtained
funding from the Public Defender’s [O]ffice to interview the medical personnel that the State
intends to call.” On January 2, 2007, the extension was granted until March 24, 2007.

{5} An interview was scheduled with SV on the January 19 deadline, but she failed to
appear. An interview with Dr. Ornelas was never scheduled by the State. On January 22,
2007, the State filed a motion to extend the time to produce witnesses, asserting that “[t]he
interview of [Dr. Ornelas] has never been set as it requires notification by defense that
payment has been authorized.” The defense responded with a motion to exclude the State’s
witnesses, and a motion opposing an extension to produce them, asserting that the State had
declined to schedule Dr. Ornelas’ interview despite having been ordered to do so on
December 11 by the district court. The State responded on February 12 that it was under no
inherent obligation to provide interviews, and that the defense, in the face of a witness’
refusal should issue a notice of statement, or seek to depose the recalcitrant witness. Since
SV had also failed to attend her interview, the State explained that SV was not subpoenaed
because there was no reason to believe that she would not attend. The State also explained
that it scheduled the interview with her on the deadline because it was the only day she was
available and because it wanted to give Defendant time to consider a plea bargain. The State
explained that it had a policy of withdrawing any potential plea bargain once a defendant
interviewed a minor victim. It asserted again that the “defense has been informed many
times that they must pay for [Dr. Ornelas’] interview and we would not set it until they had
confirmed that the Public Defender[‘s Office] had approved payment.” The State filed
another Rule 5-604 petition with the Supreme Court on February 15, 2007, alleging a failure
to arrange payment for Dr. Ornelas’ interview as a reason for the failure to complete
discovery, but did not mention the existence or terms of the January 19 deadline. This
petition resulted in an extension of the trial deadline to June 24, 2007.

{6} The district court set both motions for hearing at which it denied the State’s requested
extension and granted Defendant’s motion to exclude based on the fact that the interviews
had not been completed by the deadline. At the hearing, the State again asserted that
Defendant had “no absolute right to an interview” and told the court that while it had been
taken by surprise by SV’s lack of cooperation, it had made no effort to schedule an interview
with the expert because “Dr. Ornelas is a[n] expert witness. She won’t give an interview
until payment is arranged.” Defense counsel pointed out that Defendant had been in custody
for twenty-eight months up to that point and asserted the lack of contact with the two
important witnesses and its impact on preparing a defense as prejudicial to his rights.

{7} The district court stated that its “setting of a deadline was unambiguous.” In support
of its ruling, the court found that SV had not exhibited a willingness to cooperate. The State
told the court that it would be their intention to proceed to trial even if SV stated in her
interview that she remembered nothing. With regard to Dr. Ornelas, the district court stated
from the bench, “[w]hether it’s a reimbursement issue or a contractual issue or something
else of that nature is certainly an issue that can be pursued, but to simply throw up a
[roadblock] of refusing to participate . . . turns the system on its head[,] and this [c]ourt is
not going to accept that that was proper.” In its written order, the district court found that
Dr. Ornelas was a “combination fact/expert witness” and that she could not “refuse an

3
interview to the defense based upon pay.” The court further found that the defense’s
inability to interview these witnesses by the deadline prevented the defense from providing
effective assistance, performing due diligence, and from adequately confronting the
witnesses.

{8} The district court also had a motion to dismiss before it. The court postponed ruling
on the motion to dismiss pending the outcome of this appeal.

STANDARD OF REVIEW

{9} “Sanctions for violations of discovery orders are discretionary with the [district]
court.” State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct. App. 1990). “[A]n
abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts
and circumstances in the case.” State v. Jackson, 2004-NMCA-057, ¶ 10, 135 N.M. 689, 92
P.3d 1263 (alteration in original) (internal quotation marks and citation omitted).

{10} The district court ruled that as a result of its missed deadline, defense counsel was
prevented from providing effective assistance, performing due diligence, and adequately
confronting witnesses. The district court ruling presents a mixed question of fact and law.
Id. ¶ 18. We defer to the district court with respect to the finding of facts so long as they are
supported by substantial evidence, but application of the law to those facts is reviewed de
novo. Id.

DISCUSSION

{11} The State did not at the time and does not now contest the propriety of the district
court’s order setting the discovery deadline, but only the sanction imposed for its failure to
abide by it. “[U]pon failure to obey a discovery order, the court may enter such order as is
appropriate under the circumstances.” State v. Layne, 2008-NMCA-103, ¶ 13, 144 N.M.
574, 189 P.3d 707 (alteration in original) (internal quotation marks and citation omitted).
We will not disturb a district court’s order imposing sanctions absent an abuse of discretion.
State v. Ortiz, 2009-NMCA-092, ¶ 35, 146 N.M. 873, 215 P.3d 811. As the Appellant, it is
the State’s burden to establish an abuse of discretion. Layne, 2008-NMCA-103, ¶ 10.
Unless we can say that the district court’s ruling was clearly untenable or unjustified by
reason, we cannot say it abused its discretion. Id. ¶ 6.

{12} Exclusion is proper where there is culpability based on an intentional refusal to
comply with an order and where such culpable conduct is prejudicial to the opposing party.
In Ortiz, despite an order to produce personal cell phone records that the district court
determined to be material to the preparation of the defense, the state persisted in refusing to
comply with the order citing the police officer’s privacy right. 2009-NMCA-092, ¶ 33. In
Layne, the district court ordered production of records showing the ongoing relationship
between the state and its informant, and the state violated a discovery order by refusing to
disclose the information citing concerns about its confidential informant’s safety. 2008-
NMCA-103, ¶ 3. Similarly here, the State attempted to justify its noncompliance in
producing a concededly “essential” witness of its for a pretrial interview asserting her right

4
to payment of expert fees. As a result, the district court excluded the informant as a witness.
In Ortiz, we upheld the dismissal of the case with prejudice, and in Layne, we upheld the
exclusion of the informant who was the only eyewitness to the crime. In both cases, we
reasoned that the remedy was proper based on the state’s intentional refusal and the resulting
prejudice to the defense; in Ortiz, accounting for a police officer’s actions during a six-
minute gap in his police car’s video of his interaction with the defendant, and in Layne,
providing information in the state’s possession that might be relevant to impeaching the
informant as required under Rule 5-503(C) NMRA. Here, the order was to make SV and the
State’s “essential” expert witness, Dr. Ornelas, available by a certain date irrespective of the
State’s argument that the expert witness should receive a witness fee prior to the interview.
As to SV, weak safeguards to ensure the presence of a witness whose recalcitrance is known
does not rise to a refusal by the State to meet its obligation. It becomes a different matter
when we evaluate the refusal to even schedule an interview with Dr. Ornelas.

{13} After the deadline had expired, in its motion to extend time, and again in the March
2007 hearing, the State never asserted (nor do they assert now) that the order or deadline was
beyond the district court’s power or an abuse of discretion. Nor did it request any change
or other relief from the order save an extension of time because the fees still needed to be
paid. On appeal, they do not argue that the order compelling interviews was an abuse of
discretion. We hold that this constitutes an abandonment of any objection to the district
court’s original order. Mathis v. State, 112 N.M. 744, 747, 819 P.2d 1302, 1305 (1991)
(holding that failing to make a specific objection to the propriety of the ordered discovery
at the time of its issue results in abandonment of the issue on appeal). In such a situation,
we regard the district court’s order as fully in effect, and the State’s position to be no more
than an irrelevant contrary preference that was unpursued. It is a strong foundation for our
view that the State’s ignoring the deadline was intentional and in disregard of any
consequences to come from violating the order. In such a case, exclusion of Dr. Ornelas’
testimony would be within the proper exercise of the district court’s discretion.

Exclusion of SV was Improper

{14} With regard to the missed interview with SV, any culpability on the part of the State
with respect to her not appearing for an interview is minimal. The prosecution presented an
arguably valid reason to have run the date for the interview with SV out to the
deadline—postponing the drop-dead date for a plea offer. The State at no time refused to
make SV available for an interview with the defense and it at least attempted to comply with
the court’s discovery order by scheduling an interview with SV before the deadline.1 SV
was contacted personally to set the interview date and received a reminder the day previous
to the interview to attend. After SV failed to appear, the State expressed a willingness to
reschedule, this time under subpoena. This attention paid by the State and its willingness
to reschedule mollifies the culpability that may be allocated to the State, rendering it much

1
Granted, the State was aware that SV was not the most willing of witnesses and had
been approached by her aunt and asked not to give a statement against Defendant; a careful
prosecutor might at that point have investigated the extent of the aunt’s likely influence or
issued a subpoena just to be safe.

5
less than that which justified exclusion in Layne or Ortiz.

{15} This does not mean that we ignore the State’s taking no action, save requesting
extensions, between the expiration of the deadline and the motion hearing two months later.
The State had obtained an extension of the trial date to March 24, 2007, had submitted a
request for an extension of the discovery deadline on January 22, and yet filed another
request for extension of the trial date to the Supreme Court on February 15 without
disclosing the court’s order. The trial deadline was again extended on February 28 to June
24. The hearing on exclusion occurred on March 29. Although the State ran scheduling of
the interview up to the deadline, several months yet remained before the trial deadline to
eventually reschedule the interview and prepare for trial.

{16} At the hearing on exclusion, defense counsel pointed to Defendant’s preceding
twenty-eight months’ incarceration as the number one sign of prejudice. The speedy trial
issue was discussed at the March 2007 hearing and reserved for later hearing. Defense
counsel also pointed out that SV’s memory may have faded and that the delay was thus
prejudicial. However, absent any evidence in support of this assertion, the statement itself
is insufficient to show prejudice. State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84,
84 P.3d 701 (stating that prejudice must be more than speculative); see Jackson, 2004-
NMCA-057, ¶ 19 (holding that an allegation that memories fade with the passage of time did
not justify dismissal in a delayed discovery case). Furthermore, SV had given a safe house
interview, thus making it ultimately possible at trial to compare any changes or discrepancies
in her testimony against prior statements. Therefore, even allocating some level of
culpability to the State, we hold that the prejudice demonstrated by Defendant was
insufficient to warrant exclusion as to SV. Despite the delay in bringing SV to an interview,
which was related to the State’s policy of plea offers expiring upon the interview of child
victims, Defendant’s incarceration was more related to serial appointment of defense counsel
and delay of other witness interviews, than the failure of any interview with SV. Absent a
refusal to disclose by the State, nothing suggests that defense counsel was prevented by the
State from effectively preparing for an eventual June trial deadline with regard to
interviewing SV. Id. ¶ 19. In the absence of any intentional withholding by the State of
access to SV for an interview, and the tenuous relationship between the interview and
delaying trial, we hold that SV’s testimony should not have been excluded by the district
court.

Exclusion of Dr. Ornelas For Violating the Court’s Order Was Proper

{17} Resolving the issue as to SV’s interview reflects the State’s acting to comply with
the court’s order. With regard to the portion of the district court’s order to make Dr. Ornelas
available for an interview, the State’s conduct stands in great contrast, as the State refused
to comply with the district court’s order and to schedule an interview.

{18} The State argues on appeal that Dr. Ornelas was entitled to a witness fee, that
Defendant was entitled to funds to pay for interviewing expert witnesses, that the district
court somehow failed to ascertain whether Defendant had attempted to receive such funds,
and that Defendant’s failure to independently seek Dr. Ornelas’ interview has resulted in the

6
State’s being unfairly punished for the defense’s inaction. The State never objected to the
district court’s order as improperly compelling an interview without the fees being paid.
Never did it request a ruling from the district court concerning the propriety of a witness fee
for a pretrial witness interview. It requested no order to assist in obtaining or compelling the
payment of Dr. Ornelas’ witness fees in any way. We previously held that the State failed
to preserve the issue for our review. State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269
(Ct. App. 1986) (stating appellant must specifically apprise trial court of claimed error and
invoke intelligent ruling thereon in order to preserve issue for appellate review). These
issues are not properly before us for consideration, nor properly addressed in the dissent.

{19} The issue is that for more than two years, the State refused to make a witness
available for an interview and maintained its refusal despite a court’s order to the contrary.
The district court voiced its similar disdain for the State’s excuse after it had violated the
court’s order, stating that once the State violated the court order the issue was no longer the
witness fee, but that in light of the State simply throwing “up a roadblock of refusing to
participate,” such action “turns the system on its head and this [c]ourt is not going to accept
that that was proper.” It is in this context that the district court then found the impairment
to Defendant’s case. Once the order was intentionally disobeyed, the district court was
entitled to fashion the remedy it saw fit under the circumstances.

The Court’s Order, Once Issued, Mooted the State’s Objection Absent Further
Proceedings

{20} The order was, in the words of the district court, “unambiguous.” Its entry followed
a hearing in which Defendant had asserted a failure to make Dr. Ornelas available for an
interview. The State clearly enunciated at that time its decision to not schedule the interview
until the fees were paid. The district court addressed Defendant’s assertion of the State’s
wilful failure to provide interviews in this regard by stating that further matters of
noncompliance could be raised at a later date if the interview was not accomplished. At that
point, we consider the State’s argument ignored, if not rejected by the district court; the State
acquired a duty to follow the order. Mathis, 112 N.M. at 747, 819 P.2d at 1305 (“[I]f the
court has previously ordered it disclosed further objection to its disclosure is moot and it
must be produced”) (internal quotation marks and citation omitted); United States v. Opager,
589 F.2d 799, 805 (5th Cir. 1979) (holding that once the court’s order is entered,
government’s objection to disclosure is moot). It is this total lack of effort to draw the
district court’s attention to the cause of the State’s refusal by way of either seeking a remedy
for the position the order put it in, or a modification of the order to address payment. The
second is its refusal in the face of the court’s order that is the root of the State’s problem.

Rule 5-503 Unconditionally Requires the Giving of Pretrial Statements by Any Witness
at the Request of a Party

{21} We begin with a general proposition, as expressed in Rule 5-503(A), “[a]ny person,
other than the defendant, with information which is subject to discovery shall give a
statement.” There is no dispute in this case that Dr. Ornelas was an “essential” witness who
would be called by the State and that her statement would be of great importance to

7
preparing the defense in this case. Rule 5-503(C) allows a criminal defendant to “obtain
discovery regarding any matter, not privileged, which is relevant to the offense charged or
the defense of the accused person,” without regard to its admissibility at trial, so long as the
“information sought appears [to be] reasonably calculated to lead to the discovery of
admissible evidence.” Id. This rule approaches the liberal civil discovery standard in its
breadth. See Mary Prosser, Reforming Criminal Discovery: Why Old Objections Must Yield
To New Realities, 2006 Wis. L. Rev. 541, 581 (contrasting old standards of discovery with
liberal civil rules). Obtaining discovery under this liberal rule includes obtaining the
required statement from the witness. There is no provision in the rule subjecting this
cooperation to preconditions. The committee commentary to Rule 5-503 is explicit that
“Paragraph A . . . requires witnesses to cooperate in the giving of a statement. A witness
may not refuse to give a statement because defense counsel or the prosecuting attorney may
not be able to be present during the taking of the statement.” Dr. Ornelas was in any case
obligated to give a statement under Rule 5-503; the witness interview ordered by the court
was the vehicle to accomplish that end.

The State, Having Undertaken To Provide Witness Interviews, Must Follow Through

{22} In a criminal case, there are three levels of pretrial investigative contacts with
witnesses to obtain statements. In order of procedural involvement, they are: (1) informal
contacts and interviews conducted outside the Rules of Criminal Procedure; (2) statements
taken pursuant to the rules; and (3) depositions. See Rule 5-503. The Rules of Criminal
Procedure command the state to identify its witnesses to the defense and turn over any
statements made by those witnesses to the defense. Rule 5-501(A)(5) NMRA. Often, as
the State pled in this case, “the State . . . [aids] in setting up these interviews for the
convenience of the parties, as well as for the convenience and protection of the witness,
particularly in child abuse prosecutions.” This description falls short of the reality, however,
because the State’s “aid” must generally be requested, and the State then notifies the
witnesses to appear for interviews. This process is more than just a courtesy and has
acquired more formality than the State indicates here. In the past, we have declined to let
the State off the hook when it undertakes this responsibility and fails to follow through; and
we have generally held that such a failure constitutes a collapse of the State’s duty to
progress a case to trial. State v. Johnson, 2007-NMCA-107, ¶ 15, 142 N.M. 377, 165 P.3d
1153 (holding that refusal to schedule requested interviews counts against the state in speedy
trial calculation); State v. Talamante, 2003-NMCA-135, ¶ 13, 134 N.M. 539, 80 P.3d 476
(holding that an excessive delay in the state’s “producing its witnesses for defense interviews
was unreasonable and cannot be condoned”). What is more, by setting interviews with its
witnesses at which its own representatives are present, the State benefits by observing the
questions put to its witnesses, hearing their answers, and having them present to clarify any
questions the State may have about the evidence. This system, by which the State
undertakes to control when witnesses are scheduled to meet with the defense, offers the State
a measure of control and benefit it would not otherwise enjoy if the defense sought
interviews on its own, without regard for the “convenience of the parties.”

{23} The “right of defendants to interview witnesses without prosecutorial interference
is grounded in the constitutional guarantee of due process and notions of elemental fairness.”

8
State v. Guzman, 71 P.3d 468, 470 (Idaho Ct. App. 2003) (internal quotation marks and
citation omitted). Our Supreme Court adopted the holding in State v. Orona, 92 N.M. 450,
452, 589 P.2d 1041, 1043 (1979) (holding that witnesses “to a crime are the property of
neither the prosecution nor the defense. Both sides have an equal right, and should have an
equal opportunity, to interview them”) (internal quotation marks and citation omitted). In
Orona, the district court’s order prohibiting defense access to witnesses was held to be an
impediment to the defendant’s right to due process, and the Supreme Court held that “there
was unquestionably a suppression of the means by which the defense could obtain
evidence.” Id. (internal quotation marks and citation omitted). It should be no different
when the district court imposes an obligation to make an essential witness available to the
defense for a pretrial interview. Returning to the State’s contention that it takes on the
responsibility of setting up interviews “for the convenience of the parties, as well as for the
convenience and protection of the witness, particularly in child abuse prosecutions,” this
protection does not extend to allowing any impediment to the interviews of a victim by
counsel. Id. at 453, 589 P.2d at 1044. It should be less so with regard to the medical expert
who examined and evaluated the victim after the trial. In Guzman, the informant/witness
refused to speak with the defense prior to trial having been told by the prosecutor that he did
not have to talk to the defense at all; no prosecutorial overreaching was found. 71 P.3d at
470. In this case, the impediment to a witness interview was the State’s refusal to honor the
district court’s order to make the witness available. The due process interest is
undiminished, but in this case, the State is directly prohibiting the interview despite a court
order to the contrary.

{24} No witness list containing Dr. Ornelas’ name appears in the record before us; there
is no affirmative indication in the record that Dr. Ornelas herself insisted upon up-front
payment save the assertions of the prosecutor. Ortiz v. Shaw, 2008-NMCA-136, ¶ 20, 145
N.M. 58, 193 P.3d 605 (“Generally, statements of counsel are not evidence.”). The order
prepared by the State excluding the witness’ testimony, however, found that “[t]he parties
were aware that Dr. Ornelas would only give the interview after receiving payment even on
fact issues[,]” and we accept the fact that the non-payment of fees was what derailed her
interview. However, either on her own behalf, or through the State whose witness she was,
the Rules of Criminal Procedure provide the witness an opportunity to petition the court for
redress of any untoward consequences that may arise as a result of being required to give a
statement or deposition. Rule 5-507 NMRA. From the record, the State’s expert witness
had no discernable need for protection.2 There is also a provision in the rules for a party or
a witness to claim and seek relief for any undue burden that might result from being required
to give a statement but such relief must be sought of the court. Rule 5-503(G) and Rule 5-
507. Presumably, if a witness wishes to receive payment for his or her time, either on a per
diem or hourly basis, that witness may ask the court for reimbursement. None of these
provisions were invoked, however, and none apply in the face of the district court’s order
with which we are concerned. Even if Dr. Ornelas herself had refused to comply with the
district court’s order based on her fee, we reject this as an adequate basis for the State’s

2
A cursory Westlaw survey also reveals that Dr. Ornelas has been a witness in cases
that have resulted in close to a dozen published state and federal opinions since 1996, all
involving cases of child welfare and abuse. She is no stranger to the judicial system.

9
noncompliance with the district court’s order absent further action by it to obtain further
relief from the court based specifically on the need for payment, which it never sought.

{25} The concern was raised in the hearing to compel interviews and apparently rejected
by the district court as it entered its order. The State was therefore unjustified in pursuing
its “policy” once the interview was ordered. We have previously held that a witness not
under court order or other legal process may refuse an interview and enjoys the right to
dictate the terms of any interviews with defense counsel. State v. Williams, 91 N.M. 795,
799, 581 P.2d 1290, 1294 (Ct. App. 1978). However, in Williams, we also clearly stated that
to the extent a witness’ desires interfere with a court order, questions concerning the witness’
or parties’ desires evaporate. Id.

{26} Very little difference exists therefore between this case and Ortiz, 2009-NMCA-092,
¶ 24, where we made it plain that we accord great deference to an order of the district court.
There, as here, the order was unambiguous, in place, and the state intentionally refused to
comply. We held there that where the state failed to invoke a ruling on the court’s order on
the basis that the evidence was outside the court’s purview to order discovery, the issue was
not preserved for appeal. Id. ¶ 32. Here, the State has consistently chosen to eschew the
question of whether the district court had the power to order that the State arrange an
interview with Dr. Ornelas irrespective of any expert witness fee. There, as here, the state
had adhered to a position that for reasons of its own, and irrespective of an order of the court,
it would not provide access to discovery.

{27} We have seen hints previously that the Second Judicial District Attorney’s Office
restricts access to its experts until payment is arranged. See, e.g., State v. Schoonmaker,
2008-NMSC-010, ¶ 7, 143 N.M. 373, 176 P.3d 1105 (“[D]efense counsel . . . testified that
the [s]tate had demanded payment for the [s]tate’s physician experts if the defense wanted
to interview them.”). There, because of the district court’s refusal to grant withdrawal of
counsel so the defendant could have access to his own experts (and implicitly the state’s) for
an interview, the Supreme Court found ineffective assistance and reversed. See State v.
Brown, 2006-NMSC-023, ¶ 16, 139 N.M. 466, 134 P.3d 753; see also Schoonmaker, 2008-
NMSC-010, ¶ 36 (failure to interview prosecution experts may be ineffective assistance).
Schoonmaker left unanswered, however, whether the state could use expert witness fees to
impede access to witness interviews, a question of first impression that we answer here in
the negative, since mechanisms exist to deal with the problem outside of a prosecutor acting
as a preemptive guarantor of the fee.

No Discernable Basis Exists to Allow the State to Deny Access to a Witness Based on
Defendant’s Failure to Pay an Expert Witness Fee

{28} There is no provision in the Rules of Criminal Procedure requiring the pre-payment
of fees to an expert witness not subpoenaed. Those rules do not allow a district attorney’s
office to, in the words of the court below, “hold hostage” a witness interview by unilaterally
acting as the guarantor of witness fees.

{29} Such a prosecutor’s office, which refuses to make a witness available when ordered

10
to do so by the court, may expect to see its case suffer the consequences of disobedience.
Here, as in Ortiz, 2009-NMCA-092, the State stood on its refusal and took no further action
with regard to the court’s order. As Ortiz, Schoonmaker, and other cases demonstrate, this
Court should concern itself with clarifying the law governing how district attorney’s offices
should conduct themselves when making witnesses available for interviews. The State
conceded that it attempted to control the nature of access to witnesses for its own benefit as
well as the mutual convenience of all parties. But the State cannot assert itself as the source
of access to its witnesses and thereafter argue that its refusal to do so does not arise from any
“legal” obligation to do so. Instead, the State’s obligation is to do what it promises to do and
schedule the interviews. This becomes all the more imperative when memorialized in an
order of the court.

{30} As the State points out, the defense never sought a statement under Rule 5-503. At
the point the district court ordered the interview to take place by January 19, 2007, though,
such an argument disappeared. The State was then under judicial order to schedule the
interview with Dr. Ornelas, and the defense had no further obligation to seek an interview
by other methods. In Ortiz, we rejected the state’s position that the district court should have
ordered the defense to seek by subpoena the evidence the state later argued it was wrongly
ordered to produce. 2009-NMCA-092, ¶¶ 33-34. We hold similarly in this case. In the
absence of any assertion by the State that the court had no power to order an interview
irrespective of the defense paying a witness fee, the district court’s order requiring the State
to arrange the interview must prevail.

The District Court Properly Sanctioned the State for Disobeying its Order

{31} From Defendant’s indictment and arraignment in late 2004 until December 11, 2006,
Defendant’s trial date was extended four times. In each petition to extend, the State alleged
that “necessary” witness interviews had not been completed. At the trial setting on
December 11, 2006, the State informed the district court that it would not schedule Dr.
Ornelas’ interview until the defense had first arranged payment of her fees. Likewise, on
that date the defense requested a “date certain by which witnesses be made available, and
then if they’re not available or they show an unwillingness to cooperate, perhaps we can take
it from there.” The State asserted that “[Dr. Ornelas has] never been attempted because
we’ve got to get payment set up before that can be done.” The State made clear that Dr.
Ornelas was an essential witness and her materiality is undisputed.

{32} The district court set trial for February 19, 2007, and instructed the parties that
interviews were to be completed by January 19. The court specifically stated, “if there’s at
least in the [d]efense’s mind some continuing noncompliance, we’ll—the [c]ourt will
consider any motions that you have sometime after that and figure out if any remedy is
necessary.” The order was thus clear and unequivocal: having been asked by the defense to
assist in setting interviews, the State was ordered to set the interviews, or the court would
entertain further remedies. Two days later, the State filed another request for a rule
extension asserting the defense’s failure to pay for the witness. However, the State never
requested any assistance with payment from either the district court or the Supreme Court,
nor did it request any other relief from having to schedule the interview. In this regard, we

11
believe the State waived any objection to the district court’s order to make the witness
available for an interview. Id. ¶ 32 (holding that where the state did not litigate its objection
to a discovery order, the argument was waived). Accordingly, we believe that the State is
incorrect in relying upon any theory of waiver on the part of the defense.

{33} Ortiz also analyzed the issue of waiver. In that case, the state refused to obey an
order of the district court to turn over documents to the defense. The state argued, as in the
instant case, that the defendant bore an independent responsibility to seek the evidence. This
Court held, first, that the state improperly attempted to place the burden on the defense to
seek what it had already requested. Id. ¶ 34. Second, this Court upheld the right of the
lower court to impose a most extreme sanction, noting that the state never sought protection
from the court’s order. Id. ¶ 36. We also noted that there, as here, the state changed its
position on discovery. Id. ¶ 38. Indeed, in this case, the State went from an original refusal
based solely on non-payment to a more general assertion that providing interviews is not its
responsibility in the first place. In Ortiz, as here, the state “approached the issue . . . as one
of policy—a firm stand that the [s]tate” would not change. Id. In that case, we affirmed the
district court’s sanction of dismissal based on its conclusion that the state acted in bad faith.
Id. ¶ 39. Likewise in this case, the district court concluded that the State had held the
defense hostage with the imposition of the witness fee in intentional violation of its
unambiguous order, and we should affirm that decision. The exclusion of a material witness,
whose interviews have been intentionally prevented in direct contravention of a court order,
is a much lesser sanction than the one countenanced in Ortiz.

{34} With respect to whether or not Defendant was prejudiced by the missed interview
deadline, we apply the same considerations from our analysis of the exclusion of SV.
Defendant potentially had access to expert witness funds through the Public Defender
Department, the district court could have intervened to help secure such funds, the trial
deadline had been extended to June, and there were other less severe options to address
Defendant’s prolonged incarceration. Again, other than the mere occurrence of delay, and
given that the defense could have attempted to compel the interview itself or obtain funding,
pursuant to Jackson, no actual evidence suggests that defense counsel was prevented from
effectively preparing for a June trial deadline. For these reasons, we conclude that any
prejudice to Defendant resulting from the missed deadline was minimal and did not justify
exclusion.

CONCLUSION

{35} For the foregoing reasons, we affirm in part and reverse in part the decision of the
district court and remand for further proceedings pursuant to this opinion.

{36} IT IS SO ORDERED.

____________________________________
RODERICK T. KENNEDY, Judge

I CONCUR:

12
____________________________________
ROBERT E. ROBLES, Judge

MICHAEL D. BUSTAMANTE, Judge (specially concurring in part and dissenting in
part)

BUSTAMANTE, Judge (specially concurring in part and dissenting in part)

{37} I concur in the result of the majority opinion with regard to SV. I dissent from the
majority’s resolution of the issue concerning Dr. Ornelas. Were I in the majority as author,
I would resolve the case in an opinion constructed as follows:

{38} “The district court set a discovery deadline requiring that all witness interviews in
the case against Curtis Harper (Defendant) be completed by Friday, January 19, 2007. An
interview with the alleged victim, SV, was scheduled for the day of the deadline, but she was
not under subpoena and she failed to appear. An interview with the State’s expert witness,
Dr. Ornelas, was never scheduled ostensibly because the State had not been provided with
assurances that her expert witness fees would be paid. The Monday following the missed
deadline the State submitted a motion for an extension of time. Defendant responded with
a motion opposing the extension and a motion to exclude SV and Dr. Ornelas as witnesses.
Defendant’s motion to exclude was ultimately granted, and the State appeals.

{39} We first consider whether the district court abused its discretion in excluding SV
given that the State scheduled her interview on the discovery deadline and that
approximately five months remained before the trial date. Our second inquiry is whether the
State’s expert was properly excluded where the defense failed to affirm that it would pay
witness fees, the prosecution refused to schedule an interview until the defense affirmed it
would pay the fees, and the district court did not intervene. We reverse and remand
concluding that exclusion of the witnesses under these circumstances was an abuse of
discretion.

BACKGROUND

{40} In November 2004 Defendant was indicted and arrested on fifteen counts of criminal
sexual penetration of a minor in the first degree. Defendant remained incarcerated for nearly
three years while awaiting trial. Defendant’s trial date was scheduled multiple times through
extensions granted under Rule 5-604(C) and (D) NMRA. Each request cited as a basis for
the extensions, among other things, the need to finish discovery, “specifically any necessary
[pretrial] interviews.” The last extension occurred on February 28, 2007, and resulted in a
trial deadline of June 24, 2007.

{41} In December 2006 the district court imposed a deadline of January 19, 2007, to
complete all witness interviews in preparation for trial. At the time, trial was set for
February 19. The State offered to set up the interview with SV at any time, but stated that

13
it would not schedule an interview with Dr. Ornelas until payment of her expert witness fees
was affirmed by the defense. An interview was scheduled with SV on the Friday, January
19 deadline, but she failed to appear. An interview with Dr. Ornelas was never scheduled.

{42} In its motion for an extension of time to complete witness interviews, the State
explained that SV was not subpoenaed because there was no reason to believe that she would
not attend. The State also explained that it scheduled the interview with her on the deadline
because it was the only day she was available, and because it wanted to give Defendant time
to consider a plea bargain. The State asserted that it had a policy of withdrawing any
potential plea bargain once a defendant interviewed a minor victim. With respect to Dr.
Ornelas, the State explained that it never set up the interview because the defense failed to
confirm that it would pay her expert witness fees.

{43} Defendant opposed the State’s request for an extension of time and requested that
both witnesses be excluded. The district court denied the State’s requested extension and
granted Defendant’s motion to exclude based on the fact that the interviews had not been
completed by the deadline. In support of its ruling, the court found that SV had not exhibited
a willingness to cooperate. With regard to Dr. Ornelas, the district court found that she was
a “combination fact/expert witness” and that she could not “refuse an interview to the
defense based upon pay.” The court also found that the defense’s inability to interview these
witnesses by the deadline prevented the defense from providing effective assistance,
performing due diligence, and from adequately confronting the witnesses.

{44} The district court also had a motion to dismiss before it. The court postponed ruling
on the motion to dismiss pending the outcome of this appeal. However, the State conceded
that dismissal would be proper if this Court were to affirm the exclusion of its two key
witnesses, or that it would not continue to prosecute.

STANDARD OF REVIEW

{45} “Sanctions for violations of discovery orders are discretionary with the trial court.”
State v. Bartlett, 109 N.M. 679, 680, 789 P.2d 627, 628 (Ct. App. 1990). “[A]n abuse of
discretion occurs when the ruling is clearly against the logic and effect of the facts and
circumstances in the case.” State v. Jackson, 2004-NMCA-057, ¶ 10, 135 N.M. 689, 92 P.3d
1263 (alteration in original) (internal quotation marks and citation omitted). Exclusion of
SV and Dr. Ornelas would effectively result in dismissal of the case against Defendant.
Dismissal is a severe sanction appropriate only in the rarest of cases. Bartlett, 109 N.M. at
682, 789 P.2d at 630.

{46} The district court ruled that as a result of the missed deadline, defense counsel was
prevented from providing effective assistance, performing due diligence, and adequately
confronting witnesses. The district court’s ruling presents a mixed question of fact and law.
Jackson, 2004-NMCA-057, ¶ 18. We defer to the trial court with respect to the finding of
facts so long as they are supported by substantial evidence, but application of the law to
those facts is reviewed de novo. Id.

14
DISCUSSION

{47} “[U]pon failure to obey a discovery order, the court may enter such order as is
appropriate under the circumstances.” State v. Layne, 2008-NMCA-103, ¶ 13, 144 N.M.
574, 189 P.3d 707 (alteration in original) (internal quotation marks and citation omitted).
However, “[a] defendant is not entitled to a dismissal or other sanctions upon a mere
showing of violation of a discovery order.” Bartlett, 109 N.M. at 680, 789 P.2d at 628. Our
Supreme Court has held in the analogous area of exclusion of evidence that whether or not
a sanction should be imposed “depends in large measure upon the extent of the
Government’s culpability . . . weighed against the amount of prejudice to the defense.” State
v. Chouinard, 96 N.M. 658, 661, 634 P.2d 680, 683 (1981) (internal quotation marks and
citation omitted). In order to justify exclusion, a “defendant must establish prejudice
resulting from the violation.” Bartlett, 109 N.M. at 680, 789 P.2d at 628. “The prejudice
must be more than speculative.” State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84,
84 P.3d 701.

{48} Exclusion is proper where there is culpability based on an intentional refusal to
comply with an order, and where such culpable conduct is highly prejudicial to the opposing
party. In Layne, for example, the state refused to disclose information about its confidential
informant in violation of a discovery order. 2008-NMCA-103, ¶ 3. As a result, the district
court excluded the informant as a witness. Id. ¶ 1. Under those facts, exclusion was proper
given the state’s wilful refusal to comply with the order, and because the non-disclosure
prevented the defense from discovering potentially impeaching evidence. Id. ¶ 13. We
reasoned that impeachment is crucial to effective cross-examination, and cross-examination
is part of the constitutional right to confront witnesses. Id. Thus, exclusion was proper
based on the state’s intentional refusal and the resulting prejudice to the defense.

{49} Exclusion is normally improper where a party may be charged with some amount of
culpability but the resulting prejudice is minimal. In Bartlett, the district court dismissed a
case against a defendant where the state failed to produce a video tape of an interview with
one of its witnesses. 109 N.M. at 680, 789 P.2d at 628. The circumstances leading to loss
of the tape were murky and the trial court in Bartlett did not determine the degree of fault
attributable to the state for the loss. For purposes of analysis, we presumed “some degree
of deliberate fault on the part of the state was present.” Id. at 681, 789 P.2d at 629.
Nonetheless, we concluded that dismissal was improper because the defense was able to
vigorously raise and pursue defenses relating to the video tape even without it being
produced, and thus any prejudice was minimal. Id. at 682, 789 P.2d at 630.

{50} In cases of delayed disclosure, prejudice is shown if the delay prevented a party from
preparing for trial. In Jackson, the district court dismissed a case against a criminal
defendant based on delays in discovery. 2004-NMCA-057, ¶ 18. There, we noted the
difference between cases dealing with delayed disclosure versus those dealing with non-
disclosure and stated that, for the prior, “the test is whether [the] defendant’s counsel was
prevented by the delay from using the . . . material effectively in preparing . . . the
defendant’s case.” Id. ¶ 19 (second alteration in original) (internal quotation marks and
citation omitted).

15
Exclusion of SV was Improper

{51} Here, any culpability on the part of the State with respect to the failed SV interview
is minimal. The State at no time refused to make SV available for an interview with the
defense, and it at least attempted to comply with the court’s discovery order by scheduling
an interview with SV before the deadline. After SV failed to appear, the State expressed a
willingness to reschedule, this time under subpoena. Any culpability that may be allocated
to the State is far less than that which justified exclusion in Layne.

{52} Furthermore, any prejudice to Defendant was minimal given that the time frame for
trial deadline had been extended. The State submitted its request for an extension of the
discovery deadline on January 22, the hearing on exclusion occurred on March 29, and the
ultimate trial deadline was extended to June 24. Several months remained before the trial
deadline to reschedule the interview and prepare for trial. Other than the delay, and absent
a refusal to disclose by the State, nothing suggests that defense counsel was prevented from
effectively preparing for a June trial deadline. Jackson, 2004-NMCA-057, ¶ 19.

{53} At the hearing, defense counsel pointed to Defendant’s incarceration as the number
one sign of prejudice. However, exclusion—or effective dismissal—was a severe sanction
where there were other options for addressing the issue of prolonged incarceration, including
the one later taken by the court: reevaluating terms of release, and release on bond.

{54} Defense counsel also pointed out that the witness’ memory may have faded, and that
the delay was thus prejudicial. However, absent any evidence in support of this assertion,
the statement itself is insufficient to show prejudice. See McDaniel, 2004-NMCA-022, ¶ 6
(stating that prejudice must be more than speculative); see also Jackson, 2004-NMCA-057,
¶ 19 (holding that an allegation that memories fade with passage of time did not justify
dismissal in a delayed discovery case). Furthermore, SV had been interviewed on a prior
occasion, thus making it possible to compare any changes or discrepancies in her testimony
against her prior statements. Therefore, even allocating some level of culpability to the
State, any resulting prejudice was insufficient to warrant exclusion.

Exclusion of Dr. Ornelas was Improper

{55} The State and defense counsel share culpability for the failed interview with Dr.
Ornelas. The State openly refused to schedule an interview with Dr. Ornelas until such time
that the defense affirmed payment. Such an open refusal to comply with the court’s
discovery order is clearly analogous to Layne, where the State refused to provide information
on its informant. 2008-NMCA-103, ¶ 3.

{56} However, we cannot overlook the fact that, even after having notice of the State’s
position, the defense posed no objection to payment of Dr. Ornelas’ fees until after the
deadline expired. Unlike the defense in Layne, defense counsel in this case had options
available to compel discovery within the court’s deadline. For example, defense counsel
acknowledged he could have subpoenaed the witness, but declined based on his
understanding that scheduling was an obligation of the State. This understanding does not

16
excuse defense counsel’s failure to act given the State’s position that it would not schedule
anything absent agreement as to the expert witness fees.

{57} Defense counsel could have requested that the Public Defender Department pay Dr.
Ornelas’ expert witness fees. An indigent defendant is entitled to obtain funding for expert
witness fees. Brown, 2006-NMSC-023, ¶ 31. Access to these funds is part of an indigent
defendant’s Sixth Amendment right to “the basic tools of an adequate defense.” Id. ¶¶ 16,
25. As a contract public defender, defense counsel in this case could have applied for such
funding for Dr. Ornelas’ fees. Id. ¶ 28. Whether the defense would have received funding
is, of course, unknown. But as we understand the record, the defense never requested it.

{58} This case highlights the advantages and disadvantages attached to the practice in the
Second Judicial District—and perhaps others—of having the district attorney provide and
yet control access to the State’s witnesses. The practice can be convenient for the defense
and utilitarian for the State when it operates smoothly. When it does not, however, the
practice creates difficulties for all parties, but particularly for the trial courts when they are
called on to sort out the cause of the failure—which it must do in order to decide what its
response should be. When the parties know they are at loggerheads—as they were with
regard to Dr. Ornelas—the practice cannot be relied upon by anyone. The defense can and
should resort to the formal discovery methods provided for in the Rules of Criminal
Procedure. Resort to the rules here would have created an opportunity for all parties and Dr.
Ornelas to openly litigate the question of fees for experts in these circumstances, including
whether, when, and how they were to be paid. This Court would then have a proper record
to assess rather than the vague morass of he said/she said assertions we are dealing with.

{59} Finally, the district court should have considered its role in securing Dr. Ornelas’
expert witness fees. Where funding has not been secured or made available to pay expert
witness fees for indigent defendants, the court as the “ultimate guardians of an indigent
defendant’s . . . rights,” may take action to obtain the necessary funding. Id. ¶ 23. The
district court was put on notice that Dr. Ornelas’ expert witness fee was an issue at the time
it ordered the discovery deadline. However, it took no action to fulfill its obligation of
protecting Defendant’s rights by addressing the funding issue before resorting to exclusion
of the witness.

{60} We agree with the district court that the State could not refuse to schedule an
interview with its expert based on payment. However, we cannot agree that exclusion was
justified where the defense failed to raise the issue of funding before the discovery deadline
and apparently failed to seek funding, and where the court itself failed to intervene.
Exclusion of a witness which will ultimately result in dismissal “punishes the public, not the
prosecutor, and results in a windfall to the defendant.” Jackson, 2004-NMCA-057, ¶ 15
(internal quotation marks and citation omitted). Therefore, exclusion of Dr. Ornelas based
on the State’s conduct was an abuse of discretion when viewed in light of all the surrounding
circumstances.

{61} With respect to whether or not Defendant was prejudiced by the missed interview
deadline, we apply the same considerations from our analysis of the exclusion of SV.

17
Defendant potentially had access to expert witness funds through the Public Defender
Department, the district court could have intervened to help secure such funds, the trial
deadline had been extended to June, and there were other less severe options to address
Defendant’s prolonged incarceration. Again, other than the mere occurrence of delay, and
given that the defense could have attempted to compel the interview itself or obtain funding,
pursuant to Jackson, no actual evidence suggests that defense counsel was prevented from
effectively preparing for a June trial deadline. For these reasons, we conclude that any
prejudice to Defendant resulting from the missed deadline was minimal and did not justify
exclusion.”

____________________________________
MICHAEL D. BUSTAMANTE, Judge

Topic Index for State v. Harper, Docket No. 27,830

AE APPEAL AND ERROR
AE-RM Remand
AE-SR Standard of Review

CA CRIMINAL PROCEDURE
CA-DD Deposition and Discovery
CA-EX Expert Witness
CA-MR Motion to Suppress

CL CRIMINAL LAW
CL-CP Criminal Sexual Penetration

EV EVIDENCE
EV-DP Deposition
EV-EE Exclusion of Evidence
EV-EW Expert Witness
EV-SU Suppression of Evidence
EV-WT Witnesses

18