This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper ve rsion filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

STATE OF NEW MEXICO , 2 Plaintiff-Appellant, 3

v. NO. 34,924 4 LUIS ROSAS-CAMPUZANO and 5 ISABEL LAZCANO MELERO, 6 Defendants-Appellees. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Cristina Jaramillo, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Charles J. Gutierrez, Assistant Attorney General 12 Albuquerque, NM 13 for Appellant 14 Mary McCleary 15 Albuquerque, NM 16 for Appellee Luis Rosas-Campuzano 17 Lupe H. Preciado 18 Albuquerque, NM 19 for Appellee Isabel Lazcano Melero 202 MEMORANDUM OPINION 1 KENNEDY, Judge. 2

{1} The State appeals from the district cour t’s order dismissing the charges against 3 Defendants Luis Rosas-Campuzano and Isab el Lazcano Melero without prejudice. The 4 dismissal was granted pursuant to Second Judicial District Court Local Rule 2-400 5 NMRA (2014), which permits, and in some in stances requires, sanctions based on the 6 State’s failure to comply with the discove ry requirements and tim elines contained in 7 the rule. See Rule LR 2-400(D)(4) (2014); Rule LR 2-400(I) (2014). This Court’s 8 second calendar notice proposed to affirm the district court’s order of dismissal 9 without prejudice. The State filed a memorandum in opposition to the proposed 10 disposition. Not persuaded by the State’s arguments, we affirm. 11

{2} Initially, we note that the Stat e clarifies that the federal agents who prepared the 12 Report of Incidents (“ROIs”) were not employed by the Drug Enforcement Agency 13 (DEA), as asserted in the docketing statem ent, but were actually two Department of 14 Homeland Security Investigators (HSIs). [MIO 5] The State acknowledges that it is 15 immaterial whether they were DEA agents or HSIs but assert s that in either case, they 16 were employed by a federal government law enforcement agency and the ROIs were 17 in their exclusive possession and control. [Id. ] The State argues that as of the June 19, 18 2015, hearing on Defendant’s motion to dismi ss, Detective Bradley Cooksey testified 193 that while he was not entirely certain ROIs were created, he believes that they were, 1 but had not seen them or possessed them. [D S 4-5] The State notes that since the case 2 was appealed, it has received one ROI. [MIO 7] 3

{3} This Court’s second calendar notice propos ed to conclude that under the plain 4 language of the rule, the ROIs are deemed to be in the possession of the State because 5 they qualify as “[e]vidence in the po ssession of a law enforcement or other 6 government agency” and a federal law enfor cement agency falls within the definition 7 of “other government agency.” Rule LR 2-400(D)(3) (2014). [CN 5] The State argues 8 that this Court’s proposed disposition is cont rary to the drafters’ intent when viewed 9 in pari materia with Rule 5-501(A) NMR A, governing disclosures by the State. [MIO 10 8-9] The State further contends that this Court’s proposed disposition conflicts with 11 existing case law relating to the State’ s discovery obligations, specifically State v. 12 Jackson , 2004-NMCA-057, 135 N.M. 689, 92 P.3d 1263. [MIO 8, 13] 13

{4} To the extent Jackson , or other case law, conflicts with the local rule, by its 14 express language, the local rule prevails. Rule LR 2-400(A) (2014) expressly states: 15 “The Rules of Criminal Procedure for th e District Courts and existing case law on 16 criminal procedure continue to apply to cases filed in the Second Judicial District 17 Court, but only to the extent they do not conflict with this pilot rule .” (Emphasis 18 added). In support of its argument that Jackson governs, the State relies on the above 19 language in Rule LR 2-400(A) for the c ontention that this Court should not read 204 Jackson as conflicting with Rule LR 2-400(D)(3) absent clear language in the rule that 1 our Supreme Court intended such a sweep ing change to the State’s discovery 2 obligations. [MIO 13] However, there is cl ear language in the local rule expressly 3 expanding the requirements of Rule 5-501 a nd disclosures by the State. Rule LR 2- 4 400(D)(1) (2014) provides: “ In addition to the disclosures required in Rule 5-501(A) 5 NMRA, at the same time the state shall provide phone numbers and email addresses 6 of witnesses if available, copies of doc umentary evidence, and audio, video, and 7 audio-video recordings made by law enforcement offi cers or otherwise in possession 8 of the state , and a ‘speed letter’ authorizing the defendant to examine physical 9 evidence in the possession of the state. ” (Emphasis added). By enumerating 10 additional, specific items the State is require d to disclose in addition to those already 11 provided for in Rule 5-501, the drafters expressly expanded the requirements for 12 disclosures by the State. Therefore, the lo cal rule prevails over any case law, such as 13 Jackson , insofar as it conflicts with the local rule. 14

{5} The State further argues that this Court’ s formalistic and mech anical application 15 of the plain meaning of Rule LR 2-400(D)(3) (2014) leads to an absurd and 16 unreasonable result if the State is requi red to produce documentary evidence in a 17 federal agency’s possession because it coul d result in dismissal based solely on 18 whether the federal agency voluntarily cooperates with the State in producing 19 documentary evidence in their control. [DS 14] The State asserts that it has no 205 mechanism of enforcing the cooperation of a federal agency, and therefore, would 1 have no way to ensure compliance with its discovery obligations under the rule. [DS 2 14-15] While this may be the case, our “Supr eme Court is vested with the exclusive 3 power to regulate pleading, practice, and procedure in the courts” and we are bound 4 by the governing Supreme Court rules. State v. Valles , 2004-NMCA-118, ¶ 14, 140 5 N.M. 458, 143 P.3d 496; see also Aguilera v. Palm Harbor Homes, Inc. , 6 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (stating that the Court of Appeals 7 is bound by Supreme Court precedent). 8

{6} In addition, we note, as we did in a footnote to our second calendar notice, that 9 due to recent amendments pursuant to Supreme Court Order No. 16-8300 -001, the 10
2016 version of the local rule provides a different definition for “evidence deemed in 11 the possession of the state,” compare Rule LR 2-400(D)(3) (2014), with Rule LR 2- 12 400(D)(4) (2016), providing that “[e]vidence is deemed to be in possession of the state 13 for purposes of this rule if such evidence is in the possession or control of any person 14

or entity who has participated in the investigation or evaluation of the case.” Rule LR 15 2-400(D)(4) (201 6). Therefore, for any new cases filed after February 2, 2016, in 16

cases such as this where a dismissal without prejudice is entered, a different, more 17

narrow definition applies, und er which evidence from a federal law enforcement 18 agency may or may not be deemed to be in the possession of the State. 196 {7} The State also argues that dismissal wa s erroneous where the existence of the 1 ROIs was speculative at the tim e of dismissal. [MIO 16] Apparently the parties both 2 became aware of their potential existence at Detective Cooksey’s pre-trial interview 3 on May 5, 2015. [MIO 16] Therefore, the Stat e asserts that at th e time of dismissal, 4 the ROIs were potentially additional inform ation or evidence not yet received by the 5 State. [MIO 17] The State contends that the rule’s “continuing duty to disclose 6 additional information to th e defendant within five (5) days of receipt of such 7 information,” Rule LR 2-400(D)(3) (2014), contemplates that the State is not 8 obligated to disclose the ROIs until five (5 ) days after the State has actually received 9 them. [Id.] Therefore, the St ate submits, the district court should have, at minimum, 10 afforded the State an oppor tunity to comply with Rule LR 2-400(D)(3) (2014), 11 governing the disclosure of additional info rmation. [Id.] We disagree. The language 12 immediately following states: “Evidence in the possession of a law enforcement 13 agency or other government ag ency is deemed to be in possession of the state for 14 purposes of this rule.” Because we hold that the ROIs qualify as evidence “made by 15 law enforcement officers or otherwise in possession of the [S]tate” as conte mplated 16 by Rule LR 2-400(D)(1) (2014) , were subject to disclosure, and were “in the 17 possession of a law enforcemen t agency or other governme nt agency[,]” they were 18 “deemed to be in possession of the [S]tate for purposes of this rule.” Rule LR 2- 19 400(D)(3) (2014). 207 {8} For these reasons, and those stated in this Court’s second calendar notice, we 1 affirm. 2

{9} IT IS SO ORDERED. 3

_______________________________ 4 RODERICK T. KENNEDY, Judge 5 WE CONCUR: 6

___________________________________ 7 JONATHAN B. SUTIN, Judge 8

_________________________________ 9 J. MILES HANISEE, Judge 10