March 25, 2019- State of New Mexico v. Terri Jaramillo, No. A-1-CA-35361

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-35361
'
5 TERRI JARAMILLO,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Charles W. Brown, District Judge
9 Hector H. Balderas, Attorney General
10 Walter M. Hart III, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee
13 	Law Offices of Jennifer J. Wernersbach, P.C.
14 Jennifer J. Wernersbach
15 	Albuquerque, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	MEDINA, Judge.
19 	{t} 	Defendant Terri Jaramillo entered into a conditional guilty plea agreement
20 under which she agreed to plead guilty to fraud over $2,500 but not more than
21 	$20,000 but reserved the right to appeal from the exclusion of nine witnesses as a
Court of Appeals of New Mexico
Filed 3/25/2019 9:45 AM
Mark Reynolds

1 sanction for violating a scheduling order. Defendant raises two issues on appeal.
2 First, she argues that the district court abused its discretion by excluding her
3 witnesses without consideration of her culpability, the prejudice to the State, and the
4 availability of lesser sanctions. Second, she argues that she received ineffective
5 assistance of counsel. We reverse and remand without consideration of Defendant's
6 ineffective assistance claim.
7 BACKGROUND
8 {2} 	Defendant was charged with fraud, contrary to NMSA 1978, Section 30-16-6
9 (2006), after allegedly misappropriating funds owed to a client. The district court
10 	issued a scheduling order setting a January 30, 2015 deadline for witness lists and
11 	witness contact information. The district court scheduled a docket call for June 22,
12 	2015, and placed the case on the June 29, 2015 trailing trial docket.
13 	{3} 	Defendant filed her witness list on June 19, 2015, identifying nine witnesses
14 that had not been previously disclosed to the State. At the June 22, 2015 docket call,
15 	the district court precluded Defendant from calling all nine witnesses on her list,
16 reasoning that the State would not have sufficient time to conduct witness interviews
17 before the trial scheduled for June 29, 2015. The district court noted that the January
18 	2015 deadline to file witness lists was designed to avoid the very problems presented
19 by Defendant's late disclosure. The district court stated, "The Supreme Court has set
20 out these rules for [the Second Judicial District Court] to enforce and ... that
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1 [attorneys are required to] follow. They're dictating for us." Defendant's case was
2 reassigned to another district court judge, and Defendant subsequently entered a
3 conditional guilty plea. This appeal followed.
4 DISCUSSION
5 Standard of Review
6 	{4} 	We review district court decisions to exclude defense witnesses for an abuse
7 of discretion. See State v. Guerra, 2012-NMSC-014, ,r 23,278 P.3d 1031. "An abuse
8 of discretion occurs when the ruling is clearly against the logic and effects of the
9 facts and circumstances of the case, is clearly untenable, or is not justified by
10 reason." State v. Balderama, 2004-NMSC-008, ,r 22, 135 N.M. 329, 88 P.3d 845.
11 	"[A] court's inherent power is at the core of judicial authority," including the
12 "inherent power to impose a variety of sanctions on both litigants and attorneys in
13 	order to regulate their docket[ and] promote judicial efficiency[.]" State ex rel. N.M
14 State Highway & Transp. Dep't v. Baca, 1995-NMSC-033, ,r,r 11, 20, 120 N.M. 1,
15 	896 P .2d 1148 (internal quotation marks and citation omitted). "The decision to
16 exclude evidence calls on judicial discretion to weigh all the 	circumstances,
17 including willfulness in violating the discovery rule, the resulting prejudice to the
18 	opposing party, and the materiality of the precluded testimony." Guerra, 2012-
19 NMSC-014, ,r 33. "A defendant's right to present evidence on her own behalf is
20 subject to her compliance with established rules of procedure and evidence designed
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1 to assure both fairness and reliability in the ascertainment of guilt or innocence." Id.
2 ,-r 32 (alterations, internal quotation marks, and citation omitted).
3 The District Court Abused Its Discretion
4 	{5} 	The district court based its decision to exclude Defendant's witnesses upon
5 "the dictate that has come from our Supreme Court," referring to Rule LR2-400
6 NMRA and Rule LR2-400.l NMRA.1
7 {6} 	LR2-400.1 2 provides, "The Rules of Criminal Procedure ... and existing case
8 law on criminal procedure continue to apply . . . to the extent they do not conflict
9 with" the special calendaring rule. LR2-400.l(A). The rule requires the parties to
10 disclose all discovery described in Rule 5-501(A)(l)-(6)·NMRA, as well as the
11 	phone numbers and e-mail addresses of all witnesses if available, within ten days of
12 the effective date of the rule (February 2, 2015), or no later than February 12, 2015.
13 	LR2-400.l(D); see State v. Lewis, 2018-NMCA-019, ,-r 5,413 P.3d 484. The parties
14 also have a continuing duty to disclose additional information within five (5) days
1 LR2-400 took effect on February 2, 2015, and was recompiled as LR2-308
NMRA in 2016. We will refer to the rule as LR2-400 in this opinion, because that
was what it was called at the time the district court made its ruling. LR2-400 applied
to criminal cases filed in the Second Judicial District Court on or before June 30,
2014. LR2-400(B)(l); LR2-400.l(B). Defendant's case, commenced on June 4,
2014, was governed by LR2-400.1, the special calendaring rule.
2 	A 	copy 	of 	LR2-400.l 	1s 	available 	at
https:// seconddistrictcourt.nmcourts. gov/case-management-order.aspx by selecting
"Adopted Rule for 'Special Calendar.'"
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1 of receipt of such information. LR2-400.l(D)(2); Lewis, 2018-NMCA-019, 15.
2 Should either party fail to comply with the discovery rule or any provision of the
3 scheduling order, the rule requires the district court to impose sanctions, which may
4 include dismissal of the case with or without prejudice, prohibiting the party from
5 calling a witness or introducing evidence, monetary sanctions, or any other sanction
6 deemed appropriate by the court. LR2-400.l(D)(4), (J).
7 {7} 	Our opinion is informed by this Court's reasoning in Lewis, 2018-NMCA-
8 019, 1 8, in which we analyzed the special calendaring rule's impact upon the
9 requirement that district courts consider, on the record, the issues of culpability,
10 prejudice, and lesser sanctions in determining what type of sanction to impose for a
11 	discovery violation, as provided by our Supreme Court in State v. Harper, 2011-
12 NMSC-044, 150 N.M. 745, 266 P.3d 25, and clarified by State v. Le Mier, 2017-
13 	NMSC-017, 394 P.3d 959. We explained in Lewis that "[w]hile the language of the
14 rule 	makes 	sanctions 	mandatory 	for 	violations 	of discovery 	obligations 	and
15 	scheduling order deadlines, it leaves the decision of the type of sanction to impose
16 to the discretion of the district court." 2018-NMCA-019, 18. Finding no guidance
17 in the rule "as to the considerations to be made when assessing sanctions[,]" we
18 relied in Lewis on our Supreme Court's guidelines for assessing sanctions as stated
19 	in Harper and clarified by Le Mier. Lewis, 2018-NMCA-019, 18. Because they do
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1 not conflict with the special calendaring rule, see id., we continue to apply these
2 guidelines to our analysis in this case.
3 {8} 	Defendant having violated the scheduling order, the district court was required
4 to 	impose 	sanctions. 	LR2-400.l(J)(4). 	"Those 	sanctions 	are 	subject 	to 	the
5 considerations enunciated in Harper and Le Mier." Lewis, 2018-NMCA-019, 111.
6 "Le Mier makes it clear that, even when the special calendaring rule requires
7 imposition of sanctions, the district court must evaluate culpability, prejudice, and
8 lesser sanctions, as enunciated in Harper." Lewis, 2018-NMCA-019, 111 (omission,
9 alteration, internal quotation marks, and citation omitted). "Upon weighing those
10 factors, the district court then has discretion to decide which sanction to impose, but
11 	has an obligation to explain the reasons for its decision." Id. "Le Mier requires the
12 district court to not only weigh the degree of culpability and extent of prejudice, but
13 	also explain its decision regarding applicability of lesser sanctions on the record."
14 Lewis, 2018-NMCA-019, 1 12.
15 	{9} 	Here, the district court gave virtually no on-the-record consideration of the
16 Harper factors. At the docket call, the district court stated its concern that the late-
17 filed witness list would "hamstring" the State, but the record is silent on the
{
18 remaining factors involving the Defendant's culpability for the discovery violation
19 and consideration of lesser sanctions. The record in this case is thus inadequate to
20 determine whether the district court exercised due care in making its decision to
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1 impose the 	severe 	sanction 	of witness exclusion, 	falling 	short of Le 	Mier' s
2 requirement that a district court explain its decision on the record. Lewis, 2018-
3 NMCA-019, 112. Thus, the exclusion of Defendant's witnesses "cannot presently
4 be evaluated or justified by this Court, and we must reverse and remand the matter
5 to the dist~ict court for further proceedings." Id.
6 {to} 	We address the record made in this case in light of the Harper factors, as
7 modified by Le Mier, beginning with Defendant's culpability. See Lewis, 2018-
8 NMCA-019, 113. "Le Mier moves courts away from the Harper requirement that
9 bad faith or intransigence exist prior to assessing sanctions against a party." Lewis,
10 2018-NMCA-019, 113. "In Le Mier, our Supreme Court emphasized the mandatory
11 	nature of a court's orders, stating that" '[p]arties must obey discovery orders' and
12 explaining that '[o]ur system of justice would be neither orderly nor efficient' if
13 	parties were not held to comply with those orders." Lewis, 2018-NMCA-019, 1 13
14 (quoting Le Mier, 2017-NMSC-017, 124). Our Supreme Court also acknowledged
15 	in Le Mier the applicability of a rebuttable presumption of culpability when a
16 discovery order is violated. See 2017-NMSC-017, 124. "The degree of culpability,
17 however, is a fact-specific inquiry for the district court to consider in assessing
18 	sanctions against a party." 	Lewis, 	2018-NMCA-019, 113. 	"It 	is 	through this
19 consideration of degree that bad faith or intransigence now factors into a district
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1 court's consideration of appropriate sanctions." Id. The district court made no such
2 assessment in this case.
3 	{11} 	With respect to the prejudice factor, "Le Mier explains that when a court
4 orders a party to provide discovery within a given time frame, failure to comply with
5 that order causes prejudice both to the opposing party and to the court." Lewis, 2018-
6 NMCA-019, 	,-r 	14 	(alteration, internal quotation marks, 	and citation omitted).
7 "[E]very discovery order violation gives rise to some degree of prejudice." Id. We
8 note that the State, on appeal, argues that the precluded testimony of the Defendant's
9 excluded witnesses would not have been material, relevant, or otherwise admissible
10 even if the witnesses had been permitted to testify at trial. We view this as a
11 	concession by the State that it would have sustained no prejudice by the late filing
12 	of Defendant's witness list, because it would have prevailed in arguing against the
13 	admissibility of the witness testimony on other grounds. Regardless, the district
14 court's statement on the record that the untimeliness of Defendant's witness list
15 	would "hamstring" the State was sufficient to satisfy the prejudice prong of Harper.
16 	{12} 	"Finally, we look at whether the district court considered lesser sanctions prior
17 to [excluding the defense witnesses]." Lewis, 2018-NMCA-019, ,-r 15. "Le Mier
18 reminds us that the district court was not obligated to consider every conceivable
19 	lesser sanction before" excluding Defendant's witnesses. Id. 	(internal quotation
20 marks and citation omitted). Based on our review of the record, it does not appear
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1 the district court considered lesser sanctions. Rather, the district court stated that it
2 was acting under our Supreme Court's "dictat[e]" and expressed concern over the
3 State's ability to adequately prepare for trial. There appears to have been no
4 discussion, for example, of excluding some but not all of the witnesses Defendant
5 wished to call or limiting their testimony, nor discussion of monetary or other
6 available sanctions. In other words, the district court made no statements on the
7 record that reflect its consideration of lesser sanctions.
8 {13} 	"Despite the broad discretion Le Mier provides district courts when imposing
9 sanctions, we remind our district courts that any decision to impose severe sanctions
10 requires an adequately developed record that an appellate court can substantively
11 	review." Lewis, 2018-NMCA-019, ,r 16. Our conclusion "does not preclude the
12 possibility that the district court could have developed an adequate record finding
13 	[Defendant] culpable, perceiving sufficient prejudice to [the State] or the court, and
14 determining that the [scheduling order] violation was sufficiently egregious to
15 	warrant [total witness exclusion] rather than a lesser sanction[.]" Id. "We are also
16 fully aware of our duty to view the evidence and all inferences in the light most
17 favorable to the district court's decision but without an adequate record explaining
18 the district court's ruling and reasoning, we cannot properly perform our role as an
19 appellate court." Id. (citation omitted). The district court in this case failed to make
20 an adequate record and explain its reasons for imposing a severe sanction. We make
9

1 no determination regarding whether total witness exclusion was an appropriate
'
2 sanction in this case. We reverse the district court's sanction order and remand for
3 further consideration in light of this opinion.
4 	{14} 	Our conclusion is further supported by our Supreme Court's opinion in
5 McCarty v. State, 1988-NMSC-079, ~ 16, 107 N.M. 651, 763 P.2d 360, in which the
6 Court stated:
7
8
9
10
11
12
13
14
.Before resorting to preclusion, a [district court] should weigh not only
the prejudicial effect of noncompliance on the immediate case, but also
the necessity to enforce the rule to preserve the integrity of the trial
process. 	The 	[district 	court] 	should 	consider 	whether 	the
noncompliance 	was 	a 	willful 	attempt 	to 	prevent 	the 	State 	from
investigating facts necessary for the preparation of its case. The [district
court] then must balance the resulting prejudice to the State against the
materiality of the prec~uded testimony to the outcome of the case.
15 	(emphasis 	added) 	(citation 	omitted). 	Though 	a 	different 	district 	court judge
16 expressed doubt at the plea hearing about the relevancy of the defense witnesses'
17 testimony, we cannot infer from this record that the district court judge who imposed
18 the sanction of witness exclusion undertook the balancing inquiry required by
19 McCarty. To reiterate, we are faced with an inadequate record that prevents us from
20 determining whether the district court exercised due care in sanctioning Defendant.
21 	{15} 	Concluding that the district court abused its discretion in this case by failing
22 to address the Harper 	and Le Mier 	factors, we need not review Defendant's
23 	ineffective assistance claim.
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1 CONCLUSION
2 	{16} 	We reverse the district court's order sanctioning Defendant and remand for
3 	further proceedings consistent with LR2-400.l, Harper, and Le Mier.
4 {17} 	IT IS SO ORDERED.
5 	a
6 	UELINE R. MEDINA, Judge
WE CONCUR:
7 	~-~
8 J.MILES HANISEE, Judge
9 	~pfJ!t10 MEGlffiP.DU~ge
11