May 27, 2025- State of New Mexico v. Jacoby Stevens, No. A-1-CA-40660

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: May 27, 2025	3
No. A-1-CA-40660	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellant,	6
v.	7
JACOBY STEVENS,	8
Defendant-Appellee.	9
APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY	10
Melissa A. Kennelly, District Court Judge	11
Raúl Torrez, Attorney General	12
Santa Fe, NM	13
Walter Hart, Assistant Attorney General	14
Erica E. Schiff, Assistant Attorney General	15
Albuquerque, NM	16
for Appellant	17
Bennett J. Baur, Chief Public Defender	18
Mallory E. Harwood, Assistant Appellate Defender	19
Santa Fe, NM	20
for Appellee	21
Court of Appeals of New Mexico
Filed 5/27/2025 12:06 PM

OPINION	1
YOHALEM, Judge.	2
{1} 	In this appeal, the State asks this Court to determine whether it has an	3
obligation under Rule 11-707(C) and (D) NMRA to collect and produce the raw data	4
from an audio or video recording of a polygraph examination administered by law	5
enforcement as part of its investigation of a crime, when the State does not seek to	6
offer the results into evidence at trial. We conclude that when a polygraph	7
examination is not offered into evidence at trial, Rule 11-707(C) and (D) does not	8
require the collection and production to the opposing party of the polygraph	9
recording and physical polygraph data in order to admit law enforcement’s post-	10
examination interrogation of the defendant into evidence. We therefore reverse the	11
district court’s order sanctioning the State and remand for trial consistent with this	12
opinion.	13
BACKGROUND0F
1
14
{2} 	On February 20, 2020, local law enforcement was dispatched to the medical	15
center in Raton, New Mexico, to investigate a report of child abuse. The child that	16
medical staff believed had been abused was Defendant Jacoby Stevens’ one-year-	17
old stepson (Child). Child was not expected to survive serious injuries that included	18
1 We draw the facts from law enforcement’s affidavit for Defendant’s arrest
warrant, Defendant’s predetention hearing, and Defendant’s motions to exclude the
polygraph examination and the responses and hearings on those motions.

2
a skull fracture and brain bleed. Defendant was questioned by a Raton police officer	1
at the medical center about Child’s injuries. Defendant admitted that he had been	2
taking care of Child alone on February 20, 2020, while Child’s mother was at work.	3
When asked what could have caused Child’s injuries, Defendant stated that the only	4
potential cause was a fall from a rocking horse a few days before; Defendant reported	5
that Child appeared to be fine on the two intervening days. Defendant stated that he	6
had not noticed anything wrong with Child until late in the afternoon on February	7
20, 2020, when he noticed that Child was not breathing, and when he picked him up,	8
Child was limp. When the officer asked Defendant if there were any other possible	9
reasons for Child’s injuries besides the fall from the rocking horse, Defendant stated	10
he could not think of anything else. Child was transported to the University of New	11
Mexico Hospital in Albuquerque, New Mexico, for treatment, and died there on	12
February 22, 2020.	13
{3} 	On March 5, 2020, Defendant agreed to allow law enforcement to conduct a	14
polygraph examination as part of the investigation into Child’s death. For reasons	15
not addressed by evidence in the record, the Raton Police Department asked Federal	16
Bureau of Investigation (FBI) Agent Marcus McCaskill, who was qualified as a	17
polygrapher, to administer the examination. Although he was not in custody,	18
Defendant was Mirandized prior to the examination. Agent McCaskill informed	19
Defendant that the polygraph examination would not be recorded. The purpose of	20

3
the examination was to determine whether Defendant’s statement to Raton police—	1
that the sole cause of Child’s injuries was the fall from a rocking horse—was	2
truthful. Defendant agreed to participate because he hoped to be ruled out as a	3
suspect in Child’s death. According to Agent McCaskill, the examination showed	4
that Defendant was not being truthful.	5
{4} 	After the polygraph examination concluded, Agent McCaskill questioned	6
Defendant about his interaction with Child on the afternoon of February 20, 2020,	7
the day Defendant brought Child to the hospital and the day doctors believed Child’s	8
injuries occurred. This interrogation was recorded. Defendant was told by Agent	9
McCaskill (truthfully) that the doctors who treated Child’s injuries did not believe	10
such severe injuries could have been caused by falling off a rocking horse. Defendant	11
responded by describing for the first time an incident that he claimed happened when	12
Child was finishing lunch on February 20, 2020. Defendant told Agent McCaskill	13
that Child had gotten tangled in the buckles on his high chair, that he had tried to	14
disentangle Child, but Child slipped out of his hands and fell to the floor.	15
{5} 	When told by Agent McCaskill that Child’s doctors believed, based on his	16
injuries, that Child must have been shaken, Defendant first told Agent McCaskill	17
that he had playfully tossed Child in the air, and then explained that he also shook	18
Child when he picked Child up from his crib and found him not breathing. When	19
Defendant was told that Child’s doctors believed that Child’s skull fracture had been	20

4
caused by Child being forcefully hit on the head with a blunt instrument, Defendant	1
said that he heard a “thump” as he was rushing to get Child to the hospital, and that	2
Child may have hit his head on the door frame. Defendant put this new description	3
of the events of February 20, 2020, into a handwritten statement, and signed and	4
dated that statement, as did Agent McCaskill. The State charged Defendant with	5
intentional child abuse resulting in death, contrary to NMSA 1978, Section 30-6-	6
1(H) (2009).	7
{6} 	Following Defendant’s arrest, the State informally produced to the defense on	8
March 11, 2020, before Defendant’s pretrial detention hearing, both a copy of the	9
audio recording of the post-examination interview of Defendant and Defendant’s	10
written statement, and, again, produced additional copies formally in a discovery	11
package on April 6, 2020. The State gave the defense a copy of Agent McCaskill’s	12
polygraph examination report on March 18, 2020, stating Agent McCaskill’s expert	13
opinion as a polygrapher that Defendant was not being truthful in his responses to	14
the relevant questions asked during the polygraph examination.	15
{7} 	No audio or video recording of the polygraph examination had been made,	16
pursuant to FBI policy, so no recording could be produced. The charts and other raw	17
data were in the possession of the FBI, and FBI policy prohibited release of a copy	18
for national security reasons. Therefore, the raw data also was not produced by the	19
State to Defendant.	20

5
{8} 	Although the State initially included Agent McCaskill on its witness list as a	1
designated polygraph expert, it made clear in its subsequent briefings and in	2
numerous court hearings that it did not seek to qualify Agent McCaskill as a	3
polygraph expert or to question him at trial about having administered a polygraph	4
examination 	to 	Defendant, about 	its 	results, or about 	his expert opinion 	of	5
Defendant’s truthfulness during the examination. The State made clear that its	6
identification of Agent McCaskill as an expert was an error. The State explained to	7
both defense counsel and the district court that it would question Agent McCaskill	8
at trial solely about his post-examination interrogation of Defendant, and specifically	9
about the statements made by Defendant during that interrogation. This questioning	10
would lay the foundation for the admission of portions of the recording of the	11
interrogation and of Defendant’s handwritten, signed statement.	12
{9} 	Defendant filed a series of motions with the district court seeking to exclude	13
Agent McCaskill’s testimony, the recording of Defendant’s interrogation, and	14
Defendant’s written statement. Six hearings on evolving arguments were held by the	15
district court over an eight-month period. At several of these hearings, the district	16
court expressed its agreement with Defendant that Agent McCaskill’s interrogation	17
of Defendant and the statements made during that interrogation, as well as	18
Defendant’s written statement, were “part and parcel of the polygraph,” and	19
concluded that “all [polygraph] material would need to be disclosed in order for the	20

6
State 	to 	use . . . statements 	from 	[Agent 	McCaskill’s 	post-examination	1
interrogation].” The court apparently was relying on Rule 11-707’s requirements for	2
recording and disclosure of polygraph examinations.	3
{10} 	On May 24, 2022, the district court ordered the State to obtain copies of the	4
polygraph charts from the FBI and produce them to the defense within thirty days.	5
The order stated that the State must produce “all polygraph related materials	6
requested in the underlying motion, including relevant questions, graphs, scores, and	7
recordings if they exist.”	8
{11} 	Despite efforts recognized by the district court as diligent, the best the State	9
was able to do was to get FBI permission for defense counsel and a defense	10
polygraph expert to review the polygraph charts at an FBI office. The court found	11
that the review of the charts offered by the FBI was not an adequate disclosure to the	12
defense because no notes could be taken or copies made.	13
{12} 	The court’s decision sanctioning the State by excluding all evidence of	14
Defendant’s post-examination statements was made at a final hearing on discovery	15
issues held on August 11, 2022, after additional motions from Defendant asking for	16
exclusion 	of 	Defendant’s 	post-examination 	interrogation 	and 	statement, 	and	17
additional briefing by both parties. In his final motion for sanctions, Defendant	18
renewed his argument that his statements in response to law enforcement’s post-	19
examination interrogation were an inextricable part of the polygraph examination.	20

7
Defense counsel claimed that all evidence of the interrogation of Defendant and	1
Defendant’s responses must be excluded from evidence as a sanction for the State’s	2
failure to fully comply with the requirements of Rule 11-707(C) and (D) for the	3
collection and disclosure of data concerning a polygraph examination. Defendant	4
mentioned numerous other theories for exclusion of the evidence, without presenting	5
a developed argument. These included the State’s alleged failure to comply with the	6
May 24, 2022 order, with Rule 5-501(A)(1), (4), and (5) NMRA, and with Rule 11-	7
106 NMRA, the evidentiary rule of completeness. Although defense counsel’s	8
argument is not entirely clear, Defendant appears to have relied on State v. Harper,	9
2011-NMSC-044, 150 N.M. 745, 266 P.3d 25, and State v. Le Mier, 2017-NMSC-	10
017, 394 P.3d 959, to support his request for the exclusion of Agent McCaskill’s	11
testimony as a sanction for the State’s failure to produce a recording of the polygraph	12
examination and a copy of the charts showing the physical data collected during the	13
examination.	14
{13} 	The State contended in response that Rule 11-707(C) and (D)’s special	15
collection and disclosure of data requirements apply only when a party seeks to	16
admit into evidence at trial “[a] polygraph examiner’s opinion as to the truthfulness	17
of a person’s answers in a polygraph examination.” Because the State did not seek	18
to admit the results of the polygraph examination, the State argued that Rule 11-	19
707(C) and (D)’s special collection and disclosure of data requirements were not	20

8
applicable and that the data and polygraph examination recording were not material	1
to Defendant’s defense.	2
{14} 	At the conclusion of the August 11, 2022 hearing, on Defendant’s motion to	3
sanction the State, the district court agreed with Defendant that the State was	4
required by Rule 11-707(C) and (D) to collect and provide a copy to Defendant of	5
all of the evidence listed in Rule 11-707(D)(1)-(4). Because Defendant had been	6
provided a copy of the polygraph examiner’s report and a recording of the post-	7
examination interrogation, the court’s sanction focused on the charts, which were in	8
FBI possession, and the failure of law enforcement to record the polygraph	9
examination and provide a copy of that recording to Defendant.	10
{15} 	In addition to relying on Rule 11-707, the district court also found that it was	11
unfair to allow the State to use the statements from Defendant’s post-examination	12
interrogation when the State had not collected and produced to Defendant a	13
recording of the polygraph examination and the physical data from the polygraph	14
examination. On these bases, the district court sanctioned the State by excluding	15
Agent McCaskill as a witness and excluding as well all evidence of Defendant’s	16
statements during the post-examination interrogation by law enforcement, including	17
the recording of that interrogation, and Defendant’s signed statement. The State	18
appealed.	19

9
DISCUSSION	1
{16} 	In this case, the district court excluded all evidence of the statements made by	2
Defendant during Agent McCaskill’s post-polygraph examination interrogation of	3
Defendant as a sanction for what the court concluded were violations by the State of	4
its obligation to collect and disclose evidence to Defendant prior to trial. We address	5
the district court’s conclusion that law enforcement is required to comply with Rule	6
11-707’s requirements for the collection and pretrial production of polygraph	7
evidence when a polygraph examination is used by law enforcement solely to	8
investigate a crime, and is not intended to be introduced into evidence at trial.	9
{17} 	We conclude that the district court erred as a matter of law in concluding that	10
Rule 11-707 requires law enforcement to collect and produce to the defense a copy	11
of three charts from a polygraph examination and a recording of the entire	12
examination, when the State is not seeking to offer polygraph evidence at trial.	13
Because we find no discovery violation by the State under the facts of this case, we	14
reverse 	the 	sanctions 	imposed 	by 	the 	district 	court 	and 	remand 	for 	further	15
proceedings.	16

10
I. 	The Collection and Disclosure Requirements of Rule 11-707 Do Not	1
Apply to the Admission of Statements Made to Law Enforcement in a	2
Defendant’s Post-Examination Interrogation	3
A. 	Standard of Review	4
{18} 	We generally review a district court’s imposition of a sanction—here the	5
sanction of exclusion of witness testimony—for an abuse of discretion. See Le Mier,	6
2017-NMSC-017, ¶ 22. “An abuse of discretion occurs when the ruling is clearly	7
against the logic and effect of the facts and circumstances of the case.” Id. (internal	8
quotation marks and citation omitted). However, “even when we review for an abuse	9
of discretion, our review of the application of the law to the facts is conducted de	10
novo. Accordingly, we may characterize as an abuse of discretion a discretionary	11
decision that is premised on a misapprehension of the law.” Harrison v. Bd. of	12
Regents of Univ. of N.M., 2013-NMCA-105, ¶ 14, 311 P.3d 1236 (internal quotation	13
marks and citations omitted).	14
{19} 	In this case, the construction of Rule 11-707(C) and (D)’s requirements for	15
the collection and disclosure of evidence is a legal question, so we apply a de novo	16
standard of review. See State v. Cabral, 2021-NMCA-051, ¶ 25, 497 P.3d 670 (“Our	17
review is de novo because the interpretation of rules is a question of law.” (internal	18
quotation marks and citation omitted)). “We interpret our Supreme Court’s rules of	19
procedure just as we interpret statutes: by determining the underlying intent of the	20
enacting authority.” Id. “We begin by examining the plain language of the rule as	21

11
well as the context in which it was promulgated, including the history of the rule and	1
the object and purpose.” Id. (internal quotation marks and citation omitted). “Finally,	2
we take care to avoid an absurd or unreasonable result.” Id.	3
B. 	The History of the Admission of Polygraph Evidence at Trial in New	4
Mexico and of Rule 11-707	5
{20} 	The history of the admission of polygraph examinations in New Mexico’s	6
courts and the adoption of Rule 11-707 by our Supreme Court provides insight into	7
our Supreme Court’s intent regarding this rule. Before our Supreme Court’s adoption	8
of Rule 11-707 in 1983, the case law in our appellate courts addressing polygraph	9
examinations was focused on the admissibility of expert opinions at trial about	10
truthfulness, based upon polygraph examination results. It was this precedent that	11
led to the adoption of the rule. The early cases, beginning with State v. Trimble,	12
1961-NMSC-076, 68 N.M. 406, 362 P.2d 788, overruled by State v. Dorsey, 1975-	13
NMSC-040, 88 N.M. 184, 539 P.2d 204, considered the admissibility of polygraph	14
results when there was an agreement between the parties for its use. Even though	15
there was an agreement by the parties at the time of the polygraph examination in	16
Trimble, our Supreme Court held that the admission of polygraph evidence as to the	17
truth of testimony, over objection at trial, was error. See id. ¶ 7. At that time, no state	18
in the country admitted polygraph test evidence as to the truthfulness of testimony.	19
See Tafoya v. Baca, 1985-NMSC-067, ¶ 6, 103 N.M. 56, 702 P.2d 1001.	20

12
{21} 	In 1974, this Court addressed the admission of polygraph test results in State	1
v. Alderete, 1974-NMCA-019, 86 N.M. 176, 521 P.2d 138, overruled by State v.	2
Lucero, 1974-NMSC-075, 86 N.M. 686, 526 P.2d 1091. This Court approved the	3
admission of polygraph evidence when offered by a qualified polygraph examiner,	4
finding that the scientific community, since Trimble, had accepted the results of	5
polygraph examinations as scientifically reliable evidence of the truth of testimony.	6
Alderete, 1974-NMCA-019, ¶ 14. Our Supreme Court overturned that opinion,	7
reaffirming that polygraph results were admissible only by agreement of the parties,	8
and not over objection at trial. See Lucero, 1974-NMSC-075, ¶ 18, overruled by	9
Dorsey, 1975-NMSC-040.	10
{22} 	A year later, however, our Supreme Court reconsidered, and relying on our	11
rules of evidence concerning relevance and the admission of expert opinion, our	12
Supreme Court allowed admission of the results of a polygraph examination at trial,	13
even over objection, when (1) “the court has evidence of the qualifications of the	14
polygraph operator to establish [their] expertise”; (2) expert testimony establishes	15
“the reliability of the testing procedure employed as approved by the authorities in	16
the field”; and (3) the expert testimony supports the “validity of the tests made on	17
the subject.” Dorsey, 1975-NMSC-040, ¶¶ 3-4 (internal quotation marks and citation	18
omitted).	19

13
{23} 	Just a few years later, in 1983, our Supreme Court adopted Rule 11-707,	1
reporting in a memorandum accompanying the issuance of the rule that “[t]he	2
Court’s adoption of this rule is in response to complaints and serious problems that	3
we presently have in relation to polygraph testimony in New Mexico,” and stating	4
that the Court hoped Rule 11-707 would resolve those problems. Tafoya, 1985-	5
NMSC-067, ¶ 16 n.2. If Rule 11-707 did not resolve these problems, the Court	6
indicated it would consider eliminating polygraph expert opinion testimony in New	7
Mexico. Tafoya, 1985-NMSC-067, ¶ 16 n.2.	8
{24} 	Our Supreme Court evidently determined that Rule 11-707 was successful in	9
resolving the problems that had arisen with the admission of polygraph evidence	10
because Rule 11-707 remained in place. The Court did not again address polygraph	11
evidence until it was challenged in Lee v. Martinez, 2004-NMSC-027, 136 N.M.	12
166, 96 P.3d 291, following the United States Supreme Court’s decision in Daubert	13
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and our Supreme	14
Court’s decision in State v. Alberico, 1993-NMSC-047, 116 N.M. 156, 861 P.2d	15
192—cases that articulate the standards for admission of scientific expert opinion	16
evidence in the federal courts and in New Mexico courts respectively. Rethinking	17
the standards used earlier for the admission of expert testimony, Daubert and	18
Alberico focus on the scientific reliability of the evidence and on whether it assists	19
the jury in reaching a decision. See State v. Torres, 1999-NMSC-010, ¶ 24, 127 N.M.	20

14
20, 976 P.2d 20 (explaining that in Daubert and Alberico, the evidentiary reliability	1
of scientific knowledge replaced “the older, stricter ‘general acceptance’ standard”	2
(quoting Daubert, 509 U.S. at 587-89)).	3
{25} 	In 	Lee, 	our Supreme Court remanded the case to district court for an	4
evidentiary hearing as to the scientific reliability of polygraph evidence to evaluate	5
a witness’s truthfulness applying the Alberico test. See Lee, 2004-NMSC-027, ¶ 2.	6
Upon return of the case to our Supreme Court, the Court extensively reviewed the	7
scientific evidence introduced in the district court to determine whether a qualified	8
polygrapher’s opinion on the truthfulness of a witness’s testimony is sufficiently	9
scientifically reliable for admission at trial under Alberico and Rule 11-702 NMRA	10
(addressing the admissibility of expert testimony). See Lee, 2004-NMSC-027, ¶ 1.	11
In concluding that an expert polygrapher’s opinion as to the truthfulness of a	12
witness’s testimony would continue to be admissible in New Mexico, our Supreme	13
Court held that polygraph examinations were based on scientific principles, which	14
research in the field had found sufficiently reliable to satisfy Rule 11-702. Lee, 2004-	15
NMSC-027, ¶ 48. To the extent the scientific evidence revealed some potential	16
problems with the use of polygraph results at trial, the Court turned to its	17
longstanding view that “any doubt about the admissibility of scientific evidence	18
should be resolved in favor of admission,” and that “[t]he remedy for the opponent	19
of 	polygraph 	evidence 	is 	not 	exclusion; 	the 	remedy 	is 	cross-examination,	20

15
presentation of rebuttal evidence, and argumentation.” Id. The Court ordered the	1
district courts “to comply with Rule 11-707 in determining whether to admit	2
polygraph examination results,” held that Rule 11-707 and our Supreme Court’s	3
decision in Lee established the reliability of a polygraph examiner’s testimony, and	4
that reliability need not be independently reestablished by the district court in each	5
case. 2004-NMSC-027, ¶ 50.	6
C. 	The Plain Language of Rule 11-707	7
{26} 	With our Supreme Court’s historical focus on the reliability of expert opinion	8
testimony on a witness’s truthfulness in mind, we now examine the plain language	9
of Rule 11-707. Rule 11-707, by its terms, establishes the minimum requirements	10
for admission of polygraph examination results. Following a definitional subsection,	11
each subsection of the rule includes an explicit statement explaining that its	12
requirements are addressed to, and are intended to govern, the admission of	13
polygraph examination results at trial. Subsection (B) provides the “[m]inimum	14
qualifications 	of 	[a] 	polygraph 	examiner,” 	and 	states 	that 	these 	minimum	15
qualifications must be met prior to administering or interpreting “a polygraph	16
examination to be admitted as evidence.” Rule 11-707(B) (emphasis added).	17
{27} 	Rule 11-707(C), one of the subsections relied on by the district court, states:	18
C. Admissibility of results. A polygraph examiner’s opinion as to	19
the truthfulness of a person’s answers in a polygraph examination may	20
be admitted if:	21

16
(1) the polygraph examination was administered by a qualified	1
polygraph examiner;	2
(2) the polygraph examination was quantitatively scored in a	3
manner that is generally accepted as reliable by polygraph experts;	4
(3) the polygraph examiner was informed as to the examinee’s	5
background, health, education, and other relevant information prior to	6
conducting the polygraph examination;	7
(4) at least two (2) relevant questions were asked during the	8
examination;	9
(5) at least three (3) charts were taken of the examinee; and	10
(6) the entire examination was recorded in full on an audio or	11
video 	recording 	device, 	including 	the 	pretest 	interview 	and, 	if	12
conducted, the post-test interview.	13
(Emphasis added.) We note that Subsection (C) is explicitly identified as addressing	14
the “[a]dmissibility of [polygraph] results” in its title, and that its text identifies the	15
“results,” which are admissible into evidence, as “[a] polygraph examiner’s opinion	16
as to the truthfulness of a person’s answers in a polygraph examination.”	17
{28} 	Rule 11-707(D) imposes a pretrial notice requirement on “[a] party who	18
wishes to use polygraph evidence at trial.” Subsection (D) states:	19
D. Notice of examination. A party who wishes to use polygraph	20
evidence at trial must provide written notice no less than thirty (30)	21
days before trial or within such other time as the district court may	22
direct. Such notice must include these reports:	23
(1) a copy of the polygraph examiner’s report, if any;	24
(2) a copy of each chart;	25

17
(3) 	a copy of the audio 	or video 	recording 	of the entire	1
examination, including the pretest interview, and, if conducted, the	2
post-test interview; and	3
(4) a list of any other polygraph examinations taken by the	4
examinee in the matter under question, including the names of all	5
persons administering such examinations, the dates, and the results of	6
the examinations.	7
(Emphasis added.)	8
{29} 	The district court construed Rule 11-707(C) and (D) in this case to require that	9
law enforcement collect the charts and record the entire polygraph examination with	10
an audio or visual recording device and produce copies of the recording and the three	11
charts of the examinee and produce all of this material to Defendant in discovery.	12
We cannot agree with the district court’s construction of Rule 11-707’s collection	13
and disclosure of evidence requirements to apply to polygraph examinations	14
conducted by law enforcement solely for investigative purposes. The district court’s	15
interpretation disregards the plain language of each substantive subsection of the	16
rule 	limiting 	the 	collection 	and 	disclosure 	requirements, 	and 	indeed 	all 	the	17
requirements of Rule 11-707, to a party who wishes to introduce at trial “[a]	18
polygraph examiner’s opinion as to the truthfulness of a person’s answers in a	19
polygraph examination.” Rule 11-707(C). When we construe a statute, we presume	20
that the Legislature did not use any surplus words. See Baker v. Hedstrom, 2013-	21
NMSC-043, ¶ 24, 309 P.3d 1047. “[E]ach word is to be given meaning.” State ex	22
rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 32, 117 N.M. 346, 871 P.2d 1352.	23

18
These principles apply equally to our construction of our Supreme Court’s language	1
in a rule. See Cabral, 2021-NMCA-051, ¶ 25 (“We interpret our Supreme Court’s	2
rules of procedure just as we interpret statutes: by determining the underlying intent	3
of the enacting authority.”). We will not assume that our Supreme Court has adopted	4
useless language in a rule, particularly language repeated many times.	5
{30} 	The plain language in Rule 11-707 provides criteria for the admission of	6
expert testimony on truthfulness, and is consistent with the intent of our Supreme	7
Court. The Court has stated that the notice requirements of Rule 11-707(D), which	8
include providing copies of a recording and three charts, are intended “to prevent	9
unfair surprise and to ensure an adequate opportunity to prepare rebuttal” when	10
expert polygraph testimony on truthfulness is introduced at trial. State v. Gonzales,	11
2000-NMSC-028, ¶¶ 21, 30, 129 N.M. 556, 11 P.3d 131, overruled on other grounds	12
by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. As our Supreme	13
Court stated in Gonzales, Rule 11-707(D)’s notice requirements are intended to	14
assist in the preparation of both cross-examination of the polygraph expert and the	15
preparation 	of 	rebuttal 	testimony 	by 	the 	opposing 	party’s 	polygraph 	expert.	16
Gonzales, 2000-NMSC-028, ¶¶ 21, 30. The testing of the evidence in the adversary	17
process anticipated by our Supreme Court in Gonzales is furthered “by ensuring that	18
the opponent receives timely notice that polygraph evidence will be offered, along	19
with copies of the materials prepared by the polygraph examiner prior to and during	20

19
the examination and an audio or video recording of the examination itself.” Cabral,	1
2021-NMCA-051, ¶ 30.	2
{31} 	Finally, we look to Rule 5-501(A)(4), a rule specifically addressing polygraph	3
examinations that are not being offered in evidence. Polygraph examinations were	4
added to the other scientific material generally required to be produced by the state	5
under Rule 5-501(A)(4) around the same time our Supreme Court adopted Rule 11-	6
707. In contrast to Rule 11-707 and its focus on the admission of expert testimony,	7
Rule 5-501 is a general discovery rule that lists disclosures that must be made by the	8
state in all criminal cases. Rule 5-501(A)(4) requires the disclosure of the “results or	9
reports” of all polygraph examinations performed by the state on the defendant or	10
on a witness when those reports are in the “possession, custody or control of the	11
state.”1F
2 It appears from the plain language of Rule 5-501(A)(4) that the rule is	12
intended 	to 	distinguish 	the discovery obligation 	imposed 	on 	the state when	13
polygraph evidence is not offered at trial from the far more extensive requirements	14
of Rule 11-707, when expert polygraph evidence is offered at trial. See State v.	15
Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 (“In considering the	16
statute’s function in relation to related statutes passed by the Legislature, whenever	17
2 The State provided Defendant a copy of the polygraph examination results
and report prepared by Agent McCaskill shortly after the State received the report.

20
possible we must read different legislative enactments as harmonious instead of as	1
contradicting one another.” (text only) (citation omitted)).	2
{32} 	Based on the history of Rule 11-707, its plain language, and the plain language	3
of related Rule 5-501(A)(4), the State is required to conduct the polygraph	4
examination and collect evidence in compliance with Rule 11-707(C) and produce	5
pretrial to a defendant the copies listed in Rule 11-707(D) when it intends to offer	6
the results of the polygraph examination—the expert’s opinion on truthfulness—	7
into evidence at trial. We conclude that the district court’s exercise of its discretion	8
to sanction the State is based on an erroneous construction of Rule 11-707(C) and	9
(D)’s collection and disclosure requirements, and was, therefore, an abuse of the	10
district court’s discretion. The State did not violate either the collection or the notice	11
and disclosure requirements of Rule 11-707.	12
II. 	The 	State 	Did 	Not 	Have 	an 	Obligation 	to 	Record 	the 	Polygraph	13
Examination or Collect Copies of the Charts Under Rule 5-501(A), Rule	14
11-106, or Any Court Order	15
{33} 	Having concluded that Rule 11-707 did not require the State to collect and	16
produce the documents and recordings listed in Rule 11-707(D) when the State did	17
not seek to admit the results of the polygraph examination into evidence, we look	18
briefly at Defendant’s claims on appeal that even if Rule 11-707 does not justify the	19
sanction imposed by the district court, violations of Rule 5-501(A), violations of the	20

21
district court’s May 24, 2022 order, or a violation of Rule 11-106, support the district	1
court’s decision to sanction the State.	2
{34} 	Other than relying on Rule 11-707(C) and (D), the district court did not refer	3
to or cite any other discovery rule or precedent requiring the recording of	4
Defendant’s post-examination interrogation, or the collection of the raw data so that	5
it could be disclosed to Defendant. Aside from Rule 11-707, we are not aware of a	6
rule that imposes an obligation on the state to record all questioning of a defendant	7
or to collect the raw data from an investigative polygraph examination. We note that,	8
generally, the State has no duty to collect evidence in its investigation of a crime.	9
See State v. Ware, 1994-NMSC-091, ¶ 16, 118 N.M. 319, 881 P.2d 679. NMSA	10
1978, Section 29-1-16 (2005) encourages law enforcement to record custodial	11
interviews “when reasonably able to do so.” Defendant, however, although given	12
Miranda warnings, was not in custody. More importantly, Section 29-1-16(I),	13
specifically states, “This section shall not be construed to exclude otherwise	14
admissible evidence in any judicial proceeding.” That statute, therefore, does not	15
support the sanctions imposed by the district court.	16
{35} 	Defendant’s 	contention 	that 	the 	State 	violated 	Rule 	5-501(A)(4)’s	17
requirement that the State produce any statement made by a defendant was rightly	18
rejected by the district court based on the limitation in that rule to statements “within	19
the possession, custody or control of the state.” The court rejected as well	20

22
Defendant’s request to sanction the State for violation of the court’s May 24, 2022	1
order requiring the State to obtain the polygraph data from the FBI and disclose it to	2
Defendant. The district court acknowledged that the State made diligent efforts to	3
comply and that ultimately compliance was impossible, and sanctioning the State on	4
this basis was, therefore, improper.	5
{36} 	Defendant cited Rule 11-106, the rule of completeness, in his argument to the	6
district court and again on appeal. Defendant, however, offered no explanation in	7
the district court and provides no argument or authority on appeal to explain how a	8
rule of evidence concerning the completeness of a document demands the collection	9
of data from a polygraph examination that is not being offered into evidence. See	10
Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty	11
to review an argument that is not adequately developed.”). 2F
3
12
{37} 	We therefore conclude that the State did not violate either Rule 11-707, Rule	13
5-501(A), Rule 11-106, or any court order. The severe sanction imposed by the	14
3 Defendant also argues for the first time on appeal that the uncollected
recording of the polygraph examination and the charts of Defendant’s physical
response is “material evidence favorable to the defendant,” which the State was
required to make available to Defendant under Rule 5-501(A)(6) and pursuant to the
due process clause of the United States Constitution. See Brady v. Maryland, 373
U.S. 83 (1963). Although an appellee may raise an unpreserved issue on appeal for
the first time under our “right for any reason” doctrine, we will not consider such an
argument where the circumstances make it unfair to the appellant. State v. Marquez,
2023-NMSC-029, ¶ 32, 539 P.3d 303. Because a Brady argument is highly fact
dependent, we do not review this unpreserved issue on appeal.

23
district court of exclusion of Defendant’s statement to law enforcement was not	1
justified.	2
CONCLUSION	3
{38} 	We reverse and remand this case to the district court for further proceedings	4
consistent with this opinion.	5
{39} 	IT IS SO ORDERED.	6
__________________________________	7
JANE B. YOHALEM, Judge	8
WE CONCUR:	9
_________________________________	10
KRISTINA BOGARDUS, Judge	11
_________________________________	12
ZACHARY A. IVES, Judge	13