September 20, 2019- State of New Mexico v. Ramon Miguel Ramirez, No. A-1-CA-36969

Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM
Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellant,	3
v. 	No. A-1-CA-36969	4
RAMON MIGUEL RAMIREZ,	5
Defendant-Appellee.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Stan Whitaker, District Judge	8
Hector H. Balderas, Attorney General	9
Emily C. Tyson-Jorgenson, Assistant Attorney General	10
Santa Fe, NM	11
for Appellant	12
Bennett J. Baur, Chief Public Defender	13
Caitlin C.M. Smith, Associate Appellate Defender	14
Santa Fe, NM	15
for Appellee	16
MEMORANDUM OPINION	17
VANZI, Judge.	18
{1} 	The State appeals from the district court’s order granting Defendant Ramon	19
Ramirez’s motion to exclude three of the State’s witnesses. We conclude that the	20
district court’s decision was not an abuse of discretion and we therefore affirm.	21
Court of Appeals of New Mexico
Filed 9/20/2019 10:58 AM

2
BACKGROUND	1
{2} 	On August 7, 2016, Defendant allegedly shot his neighbor, Reyes Rodriquez,	2
in the leg. The State initiated proceedings the same day, in metropolitan court and	3
on September 2, 2016, filed a nolle prosequi dismissing the matter. Almost a year	4
later, on July 27, 2017, the State indicted Defendant on one count of aggravated	5
battery with a deadly weapon. On September 6, 2017, the district court held a	6
scheduling conference and issued a scheduling order setting deadlines. The court	7
assigned the case to Track 1 status which, pursuant to LR2-308(F)(5)(a) NMRA,	8
required the case to go to trial within 210 days. Among other things, the district court	9
set a deadline of November 6, 2017, for pretrial interviews, and assigned the case to	10
a three-week trailing docket beginning on January 16, 2018.	11
{3} 	On September 11, 2017, defense counsel sent an email to the State requesting	12
pretrial interviews of “all the witnesses you plan to call at a trial.” After conferring,	13
counsel agreed that the interviews would be conducted on October 26, 2017. On that	14
date, three witnesses did not appear for their interviews: Mr. Rodriquez and two	15
investigating officers. It is unclear why these three witnesses were unavailable. With	16
the agreement of defense counsel, the State rescheduled the three pretrial interviews	17
to November 3, 2017, the last business day before the deadline.	18
{4} 	On the morning of November 3, 2017, the State learned that its investigator	19
had been unable to personally serve a subpoena on Mr. Rodriquez for the interview	20

3
and that one of the investigating officers had called in sick. As a result, the State	1
emailed defense counsel at 8:04 a.m. cancelling the scheduled interviews and	2
informing defense counsel that it planned to file a nolle prosequi. At 1:15 p.m., the	3
State was informed that Mr. Rodriquez was present at the District Attorney’s office,	4
having received notice of the interview through someone the State investigator had	5
contacted during the attempt to serve Mr. Rodriquez. The State attempted to contact	6
defense counsel to try to continue with the cancelled interviews but was unable to	7
reach her. Mr. Rodriquez told the State that he had moved due to the conflict with	8
Defendant, and had not updated his address with the District Attorney’s office. The	9
State then emailed defense counsel at 4:40 p.m. “to explain what happened and	10
request additional availability to complete the interviews.”	11
{5} 	On November 6, 2017, the deadline for pretrial interviews, the State filed a	12
motion to extend the deadlines for all remaining interviews to be completed. Defense	13
counsel filed a response in opposition on November 7, 2017. On the same day, the	14
State requested dates of availability from defense counsel “in order to get the	15
interviews scheduled as quickly as possible.” Defense counsel declined to provide	16
available dates, preferring to await the district court’s ruling on the motion. The court	17
denied the extension on November 13, 2017, without holding a hearing or providing	18
any findings. The State proceeded with the interviews on November 17, 2017,	19

4
without defense counsel present, and subsequently provided defense counsel with an	1
audio recording of the interviews on November 20, 2017.	2
{6} 	Defendant moved to exclude the three witnesses on November 17, 2017. The	3
State filed a response in opposition to exclusion on December 1, 2017, agreeing with	4
Defendant’s 	“recitation 	of 	the 	communications 	in 	scheduling 	the 	pretrial	5
interviews[.]” The district court did not hold a hearing on the motion but entered an	6
order granting Defendant’s motion. The court found that the case was classified as	7
Track 1 and that at the time of the scheduling conference, neither party raised any	8
concerns or problems with the deadlines. The court further found that the State’s	9
November 6, 2017 motion to extend deadlines was filed untimely and had therefore	10
been denied. Finally, the court did not find good cause to justify an extension and	11
stated that the State’s requested thirty-day extension would prejudice Defendant.	12
This appeal followed.	13
DISCUSSION	14
{7} 	The sole issue on appeal is whether the district court abused its discretion in	15
excluding the three State’s witnesses. The State argues that that the district court did	16
not consider any of the Harper factors required for the sanction of witness exclusion	17
and, as a result, abused its discretion. See State v. Harper, 2011-NMSC-044, ¶ 15,	18
150 N.M. 745, 266 P.3d 25 (“Exclusion of witnesses as a sanction requires an	19
intentional 	violation 	of 	a 	court 	order, 	prejudice 	to 	the 	opposing 	party, 	and	20

5
consideration of lesser sanctions.”). We conclude that the district court followed the	1
Harper factors as modified by State v. Le Mier, 2017-NMSC-017, 394 P.3d 959	2
(clarifying 	the 	application 	of 	Harper 	factors), 	and 	that 	there 	was 	sufficient	3
consideration of the required factors to support the district court’s decision and	4
order.	5
{8} 	We review the district court’s exclusion of witnesses for an abuse of	6
discretion. Id. ¶ 22. “An abuse of discretion occurs when the ruling is clearly against	7
the logic and effect of the facts and circumstances of the case. We cannot say the	8
trial court abused its discretion by its ruling unless we can characterize it as clearly	9
untenable or not justified by reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M.	10
438, 971 P.2d 829 (internal quotation marks and citations omitted). “In reviewing	11
the district court’s decision, this Court views the evidence—and all inferences to be	12
drawn from the evidence—in the light most favorable to the district court’s	13
decision.” Le Mier, 2017-NMSC-017, ¶ 22.	14
{9} 	To impose a sanction of witness exclusion, the district court must assess: “(1)	15
the culpability of the offending party, (2) the prejudice to the adversely affected	16
party, and (3) the availability of lesser sanctions.” Id. ¶ 15 (citing Harper, 2011-	17
NMSC-044, ¶ 15). These standards that provide a pragmatic approach to guide	18
courts do not establish a “rigid and mechanical analytical framework.” Le Mier,	19
2017-NMSC-017, ¶ 16. Rather, courts are to exercise their discretionary authority	20

6
when deciding to impose or not to impose witness exclusion. Id. ¶ 17. In sum, “it is	1
not the case that witness exclusion is justified only if all of the Harper considerations	2
weigh in favor of exclusion.” 2017-NMSC-017, ¶ 20.	3
{10} 	With respect to the first factor, the culpability of the State, the district court	4
first noted that at the time of the scheduling conference, neither party raised an issue	5
with the deadlines. The court also found that the State did not provide good cause to	6
justify an extension of the pretrial witness interview deadline and that the State failed	7
to meet its obligation of scheduling and completing the interviews in a timely	8
manner as required by the order. The State argues that this reasoning is not sufficient	9
to support the order to exclude witnesses because there is no indication of bad faith	10
on the part of the State. Le Mier, however, made clear the Harper standards are not	11
“so rigorous that courts may impose witness exclusion only in response to discovery	12
violations that are egregious, blatant, and an affront to their authority.” Le Mier,	13
2017-NMSC-017, ¶ 16. In other words, “courts must be able to avail themselves of,	14
and impose, meaningful sanctions where discovery orders are not obeyed and a	15
party’s conduct injects needless delay into the proceedings.” Id. Thus, it is sufficient	16
that the district court found the State did not raise an issue with the scheduled	17
deadlines, was responsible for not timely providing the witnesses for a pretrial	18
interview, and that any extension would unfairly prejudice Defendant. Here, it was	19
the responsibility of the State to keep in contact with its witnesses, schedule the	20

7
interviews, and to do so in a timely manner in compliance with the court-imposed	1
deadline. The State failed to do so and offered only the minimal explanation that	2
they could not serve the witnesses notice of its last minute attempt to complete the	3
interviews. Therefore, the district court’s finding of this unwarranted failure is	4
sufficient and supported by the record.	5
{11} 	Concerning the second factor, prejudice to the Defendant, the State argues that	6
the district court erred because it did not find prejudice to the Defendant. We	7
disagree. In Le Mier, our Supreme Court explained that failure to provide discovery	8
within the court-ordered time frame causes prejudice to the opposing party and the	9
court. Id. ¶ 25. Moreover, the district court specifically found that the extension	10
requested by the State would “prevent [D]efendant from being able to conduct the	11
interview, investigate the information obtained and then file any appropriate pretrial	12
motions, and then have those motions heard by the [c]ourt prior to trial.” In other	13
words, had the district court granted the extension requested by the State other	14
pretrial deadlines would have been truncated, leaving Defendant insufficient time to	15
meet those deadlines and prepare for the trial. As the court noted, an extension would	16
have prevented Defendant from timely conducting interviews and subsequent	17
preparations prior to trial. Alternatively, the extension would have resulted in the	18
district court extending the trial date, prolonging a case that was already set to be	19
heard approximately a year and half after the date of the alleged incident, and further	20

8
delaying Defendant’s “day in court.” Therefore, the district court’s finding of	1
prejudice to the Defendant is sufficient and supported by the record under the Harper	2
factors as modified by Le Mier.	3
{12} 	With respect to the third factor, the availability of lesser sanctions, the State	4
argues that the district court abused its discretion because it did not consider lesser	5
sanctions. Here, LR2-308(H)(1) requires the district court to impose sanctions for	6
the failure to comply with the scheduling order. The parties agree that the State failed	7
to comply with the pretrial interview deadline and that sanctions were therefore	8
required. While sanctions were required, it was within the district court’s discretion	9
as to which sanction to impose. LR2-308(H)(4) (providing that a court may impose	10
sanctions, including but not limited to: (a) a judicial reprimand; (b) exclusion of	11
witness or evidence; (c) a monetary fine; (d) civil or criminal contempt; and (e)	12
dismissal of the case with or without prejudice). While the court did not make	13
specific findings as to whether there were lesser sanctions available, it is well	14
established that “our courts are encouraged to ensure the timely adjudication of	15
cases, to proactively manage their dockets, and to utilize appropriate sanctions to	16
vindicate the public’s interest in the swift administration of justice.” Le Mier, 2017-	17
NMSC-017, ¶ 29. In this case, the State took one year to indict Defendant, lost	18
contact with Mr. Rodriquez, violated the discovery order, and requested a pretrial	19
extension for a single-issue Track 1 case on the last day of the deadline for pretrial	20

9
witness interviews. Additionally, as discussed above, the requested extension would	1
have 	prejudiced 	Defendant. 	The 	only 	lesser 	sanction 	available 	under 	LR2-	2
308(H)(4), then, was a reprimand by the judge, which would not have remedied the	3
prejudice to the Defendant. Accordingly, we will not second-guess the court’s	4
judgment that exclusion was the most effective and least severe way to achieve the	5
swift administration of justice. See Le Mier, 2017-NMSC-017, ¶ 29 (finding no	6
abuse of discretion where court failed to consider lesser sanctions).	7
{13} 	Lastly, the State argues that the district court failed to hold a hearing on this	8
matter in violation of Harper. See 2011-NMSC-044, ¶ 21 (“[T]he exclusion of	9
witnesses should not be imposed except in extreme cases, and only after an adequate	10
hearing to determine the reasons for the violation and the prejudicial effect on the	11
opposing party.”). However, neither party actually requested a hearing and the	12
parties were heard through the motions to the district court. The purpose of a hearing,	13
as identified in Harper, is “to determine the reasons for the violation and the	14
prejudicial effect on the opposing party.” Id. ¶ 21. In this case, neither party disputed	15
the facts underlying the discovery violation. The State offered little explanation for	16
the discovery violation, and for all the reasons set forth above, the prejudice posed	17
to Defendant was evident. Moreover, even if the district court did err by failing to	18
hold a hearing, the court’s findings of fact in the order demonstrate that it had a	19
sufficient record upon which to consider the Harper factors as modified by Le Mier.	20

10
Consequently, we conclude that the district court did not abuse its discretion in	1
excluding the three witnesses.	2
CONCLUSION	3
{14} 	We affirm.	4
{15} 	IT IS SO ORDERED.	5
______________________________	6
LINDA M. VANZI, Judge	7
WE CONCUR:	8
____________________________________________	9
J. MILES HANISEE, Judge	10
_____________________________________________	11
MICHAEL D. BUSTAMANTE, Judge Pro Tempore	12