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Certiorari Denied, August 26, 2013, No. 34,221

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-089

Filing Date: May 29, 2013

Docket No. 31,558 

STATE OF NEW MEXICO, 

Plaintiff-Appellant,

v.

SHAWN T. REDD,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY

Grant L. Foutz, District Judge

Gary K. King, Attorney General

James W. Grayson, Assistant Attorney General

Santa Fe, NM

for Appellant

Paul Kennedy & Associates

Paul J. Kennedy

Arne R. Leonard

Albuquerque, NM

for Appellee

OPINION

WECHSLER, Judge.

{1} The State appeals from the district court’s order dismissing charges filed against

Defendant Shawn Redd. The district court dismissed the charges because, due to computer

problems, the State lost an audio recording of the alleged victim’s initial interview with the

investigating officer conducted on the day the allegations were reported to the police. We
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hold that the district court erred in dismissing the charges because the loss of the recording

of the initial interview was not prejudicial to Defendant. Accordingly, we reverse the district

court’s dismissal of Defendant’s charges.

BACKGROUND

{2} The district court dismissed three counts of criminal sexual penetration of a minor

(CSPM), one count of criminal sexual contact of a minor (CSCM), one count of false

imprisonment, and two counts of intentional child abuse. The charges arose out of

allegations of sexual abuse against Defendant by a ten-year-old victim (the Victim). Two

CSPM counts were based on allegations that Defendant caused Victim to engage in anal

intercourse with Defendant, and the remaining CSPM count was based on an allegation that

Defendant caused Victim to engage in oral penetration. Both child abuse counts were based

on allegations that Defendant anally penetrated Victim.

{3} On November 5, 2009, Investigator Merle Bates, a deputy sheriff with the McKinley

County Sheriff’s Department, responded to a domestic call at Defendant’s home. Once

Investigator Bates arrived at the residence, he conducted interviews with Victim and

Victim’s mother. Investigator Bates recorded the interviews on a digital recorder and later

transferred the files to his computer. The ten-minute interview Investigator Bates conducted

and recorded with Victim (hereafter referred to as the initial interview) is the subject of this

case.

{4} In the initial interview, Victim told Investigator Bates that Defendant attempted oral

penetration, but she did not allege any other type of sexual penetration, including anal

penetration. In later interviews and during grand jury testimony, Victim alleged that

Defendant attempted or completed anal penetration, which formed the basis of two of the

CSPM counts and both child abuse counts.

{5} The district court held a pretrial conference on August 16, 2010, in which Defendant

raised discovery issues, including that the State had not disclosed the audio recording of the

initial interview. The State told the district court that it had only been able to retrieve two

of the ten minutes of the initial interview due to “computer problems” and that Investigator

Bates said that it was impossible to access the remaining eight minutes because the computer

file could not be read. The district court advised Defendant to file a motion so that it could

order Investigator Bates to come before the court and explain the issue with the audio file.

{6} Defendant filed a motion to compel production of the initial interview and Victim’s

mother’s interview on August 30, 2010. In his motion, Defendant asserted that the initial

interview was lost or destroyed due to a computer difficulty and that the loss of the evidence

violated his right to a fair trial. Defendant stated that the initial interview was critical to his

defense because Victim did not disclose anal penetration or any other type of sexual

penetration to Investigator Bates. Defendant asserted that if the recording could not be

produced, the proper remedy would be for the district court to dismiss the charges with
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prejudice, and he asked the district court to order that the audio files be provided to

Defendant or that the recording be sent to an expert for analysis. In the alternative,

Defendant asked the district court to suppress the testimony of Victim and any other

testimony the recording of the initial interview would impeach. The State, in its response,

acknowledged that the recording of the initial interview was “damaged,” but argued that

there was no prejudice because Investigator Bates routinely does not ask for details when

interviewing a child victim of sexual abuse, and Investigator Bates could testify as to his

memory of the initial interview.

{7} The district court held a motions hearing on January 27, 2011, at which Investigator

Bates testified. He stated that he recorded the initial interview using a digital recorder and

transferred the recording to his computer. His computer crashed in December 2009, and his

hard drive was replaced. Investigator Bates testified that he had only recovered two of the

ten minutes of the initial interview after he hired a private computer company to recover his

data files. He stated that a county information technology employee, John Goins, tried but

could not further recover the remaining eight minutes of the initial interview. Investigator

Bates further testified that it might be possible to send the old hard drive containing the

initial interview, or at least the new hard drive that contained the partially recovered file, to

a computer expert for analysis and that he would be willing to try to find the old hard drive.

The State indicated that it had no objection to sending the hard drive to a computer expert.

The district court directed Defendant to choose an expert and determine the cost and stated

that the district court would determine the action to pursue after receiving this information.

{8} At the next status conference, on February 7, 2011, defense counsel indicated that

she found an out-of-state company specializing in data recovery and that the cost would be

between $500 and $1800. Defense counsel stated that she accompanied Investigator Bates

to speak with Goins and that Goins indicated that the old hard drive was available to send

to the expert. Defense counsel indicated that she would provide the district court with an

order to sign, ordering the hard drive to be sent to the expert. The district court set a status

conference for March 7, 2011, in order to determine the status of the hard drive.

{9} On March 4, 2011, Defendant filed a motion to compel production of the hard drive.

The motion indicated that defense counsel and Investigator Bates spoke with Goins, who had

removed the hard drive from Investigator Bates’ computer. Goins initially said that he could

locate Investigator Bates’ hard drive as defense counsel told the district court at the February

7, 2011 hearing, but Goins later told defense counsel that the hard drive was placed

unlabeled with around one hundred other discarded hard drives and that he had not attempted

to find the one belonging to Investigator Bates. Defendant asked the district court to order

the hard drive be turned over to the defense or to dismiss the charges against Defendant.

{10} At the status conference three days later, on March 7, 2011, the district court stated

that it was its understanding that Defendant was going to locate an expert and that the State

would provide the hard drive. Defendant then reiterated what he stated in his motion: that

Goins indicated that Investigator Bates’ hard drive was among one hundred unlabeled hard
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drives and that Goins had not attempted to locate the hard drive. Defendant stated that he

would ask the district court for an order directing Goins to begin opening the unlabeled hard

drives so that he could locate the one belonging to Investigator Bates. The district court

responded that “the hard drive needs to be produced.” The State likewise asked the district

court for an order. The district court indicated that it would agree to such an order but that

it needed to know how many hard drives Goins would have to analyze and acknowledged

it had no familiarity with recovering data from hard drives and the time it takes. The district

court ultimately directed the State to speak with Goins and determine how long it would take

to find Investigator Bates’ hard drive and if Goins would be willing to do so. The district

court then scheduled another status conference.

{11} At a status conference held on March 21, 2011, the State informed the district court

that Goins indicated that it would not be possible to locate the hard drive, and that he could

not identify Investigator Bates’ hard drive. The State also informed the district court that

Goins told the State that it would be against county protocol to release all the hard drives to

an outside expert for analysis because the hard drives contained confidential information

from various county agencies. Upon questioning by the district court, the State indicated

that its information was based on conversations with Goins. The district court indicated that

if the hard drive was not turned over to Defendant, dismissal might be the only viable option.

Defendant suggested an evidentiary hearing in which Goins could testify about the

possibility of locating the hard drive, and the district court agreed to set a hearing once

Defendant filed whatever motion he deemed appropriate.

{12} Defendant filed a motion to dismiss on June 1, 2011. In his motion, Defendant

argued that the initial interview was critical to his defense because the “only consistency in

[Victim]’s . . . version of events is the[] inconsistency.” Defendant specifically pointed out

that Victim disclosed anal penetration in her pre-trial interview and during grand jury

testimony and said that she told Investigator Bates about anal penetration, which differed

from Investigator Bates’ report from the initial interview. Defendant’s motion characterized

the conclusion of the January 27, 2011 hearing as the district court “order[ing] the State to

produce the crashed hard drive . . . for inspection and analysis by an expert” and argued that

“the State has failed to comply with the [district court’s] order compelling the production of

the crashed hard drive for analysis by a defense expert.” The motion to dismiss included an

affidavit from a computer expert that it is “reasonably likely” or “most likely” that a

professional data recovery specialist could recover the entire initial interview from the hard

drive. The State responded, arguing that issues regarding credibility and inconsistent

versions of events should be decided by the jury, that it did not intentionally destroy

evidence, that Investigator Bates engaged in his best efforts to retrieve the lost recording of

the initial interview, and that dismissal was an inappropriate remedy under the circumstances

in this case.

{13} The district court held an evidentiary hearing on the motion to dismiss on July 21,

2011. At the hearing, Goins testified that he attempted to recover data from Investigator

Bates’ hard drive by “slav[ing]” it to another machine, in other words, by connecting it to
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another computer and attempting to read the data on the other computer. He testified that

other companies specialize in advanced data recovery and may have other methods of

recovering data that he did not. Goins stated that he placed Investigator Bates’ old hard

drive in the “junk pile,” or a trash can, once he removed it from Investigator Bates’ computer

and that he does not label hard drives he puts in the trash can. Goins testified that he

received a request from Investigator Bates and Defendant to locate Investigator Bates’

original hard drive. He spent most of one day trying to access ten hard drives of the roughly

one hundred that were saved in one trash bin, he saw information on two that did not match

the data on Investigator Bates’ hard drive, and he informed Investigator Bates that the drive

could not be located at that point.

{14} Richard Chavez testified that he is an employee with two companies that specialize

in data recovery. He testified that Investigator Bates brought his computer to one of Chavez’

stores and asked Chavez to do everything possible to fix his computer and recover the lost

data. Chavez used his experience and a software program to recover between ten and

fourteen gigabytes of data and testified that he was not aware of any more sophisticated

software that he could have used to recover more data. Chavez testified that Investigator

Bates’ computer had faulty memory due to a manufacturer’s defect and that the defect

caused data to become corrupted when it was saved onto the computer. He stated that more

sophisticated techniques could be used to retrieve more data when a drive is not physically

working but that Investigator Bates’ computer suffered defective memory that corrupted the

data as it was saved.

{15} After the testimony, Defendant argued that dismissal was the only appropriate

remedy based on (1) the legal analysis for lost or destroyed evidence, and (2) the State’s

failure to comply with the district court’s order to produce the evidence, in particular to find

the hard drive and notify the district court how long it would take to search the approximate

one hundred unlabeled hard drives to determine which hard drive belonged to Investigator

Bates. The State conceded that it breached a duty to preserve but argued that the appropriate

remedy was admitting the loss of the initial interview and the circumstances to the jury and

permitting Investigator Bates to disclose to the jury that Victim did not disclose anal

penetration in the initial interview.

{16} The district court issued an order granting Defendant’s motion to dismiss. The

district court stated that the initial interview contained inconsistencies with other statements

made by Victim. It concluded that the lost initial interview was material and that the loss

was prejudicial to Defendant. Additionally, the district court’s order contains language

indicating that the dismissal was, at least partially, based on a discovery sanction for the

State’s inability or refusal to locate Investigator Bates’ hard drive and turn it over to

Defendant. In its findings granting the motion to dismiss, the district court stated, apparently

based on its oral directive at the January 27, 2011 hearing, that “[p]rior to January [2011],

as well as after January 2011, the [district court] directed the State to identify the hard

drive.” Additionally, the order contained findings that “[f]rom January 2011 until July 2011,

the State spent only eight hours trying to identify the correct hard drive after it was
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commingled with other hard drives, and examined only ten percent of the hard drives in the

trash can.” Further, “[t]o [the] date of this order, the State has not identified [Investigator]

Bate[s’] hard drive.” There was no express finding of bad faith or intentional conduct on the

part of the State.

{17} The State appeals the district court’s order granting the motion to dismiss and makes

several arguments as to why the district court abused its discretion. It argues that dismissal

was not an appropriate remedy under a lost or destroyed evidence analysis because (1) the

evidentiary value of the lost recording was minimal, and Defendant failed to establish

materiality and prejudice due to the lost recording, and (2) dismissal is not a proper remedy

when raised pre-trial. The State also contends that the district court erred to the extent that

it granted Defendant’s motion to dismiss as a discovery sanction for failure to provide the

hard drive to Defendant because (1) the district court never ordered the State to produce the

hard drive, (2) Defendant failed to show actual prejudice, and (3) the district court failed to

consider less severe sanctions.

STANDARD OF REVIEW

{18} We review a district court’s remedy for lost or destroyed evidence for an abuse of

discretion. See State v. Duarte, 2007-NMCA-012, ¶¶ 5, 11, 140 N.M. 930, 149 P.3d 1027.

Likewise, “[s]anctions for violations of discovery orders are discretionary” and will not be

reversed absent an abuse of that discretion. State v. Bartlett, 109 N.M. 679, 680, 789 P.2d

627, 628 (Ct. App. 1990). “An abuse of discretion occurs when the ruling is clearly against

the logic and effect of the facts and circumstances of the case.” Duarte, 2007-NMCA-012,

¶ 3 (internal quotation marks and citation omitted). Additionally, we view the evidence and

the inferences drawn from that evidence in favor of the district court’s ruling. See Mathis

v. State, 112 N.M. 744, 747-48, 819 P.2d 1302, 1305-06 (1991).

BASIS FOR GRANTING THE MOTION TO DISMISS

{19} As an initial matter, the parties dispute the type of analysis this Court should apply

to the order dismissing this case. Both parties point out the distinction between cases in

which evidence is lost or destroyed and cases in which a district court sanctions the state for

a bad faith or intentional violation of a discovery order. In State v. Chouinard, 96 N.M. 658,

661, 634 P.2d 680, 683 (1981), our Supreme Court formulated a three-part test to determine

the appropriate remedy for lost or destroyed evidence. Under this test, in evaluating whether

the district court abused its discretion in dismissing the case for lost or destroyed evidence,

we look to whether (1) the state breached a duty or intentionally deprived the defendant of

evidence, (2) the lost or destroyed evidence is material, and (3) the defendant suffered

prejudice. See id. The purpose of this test is to assure that the district court arrived at a

determination that will serve the ends of justice. Id.

{20} In contrast, as a general rule, a district court may impose sanctions against the state

for a failure to comply with a discovery order. See Mathis, 112 N.M. at 747, 819 P.2d at
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1305. Our Supreme Court has clarified that dismissal for the violation of a discovery order

requires (1) culpable state conduct such as “bad faith, willful non-compliance, or flat-out

disregard for a discovery order”; ( 2) tangible prejudice to the defendant as a result of the

deprivation of the evidence; and (3) a consideration of lesser sanctions. State v. Harper,

2011-NMSC-044, ¶¶ 16-18, 27, 150 N.M. 745, 266 P.3d 25. We initially discuss discovery

sanctions as they apply to this case and then address the Chouinard test for lost or destroyed

evidence.

{21} The district court’s order dismissing the charges did contain the following findings

regarding the production of the hard drive:

4. Prior to January 2011, as well as after January, the [district court]

directed the State to identify the hard drive.

5. . . . Defendant requested the hard drive be identified so that

Defendant’s expert could attempt to retrieve the lost portion of the

[initial] interview.

6. From January 2011 until July 2011, the State spent only eight hours

trying to identify the correct hard drive after it was commingled with

other hard drives, and examined only ten percent of the hard drives

in the trash can.

7. To date of this order, the State has not identified [Investigator]

Bate[s’] hard drive.

These findings stop short of finding that (1) the district court issued a discovery order

compelling the State to turn over Investigator Bates’ hard drive, and (2) the State willfully

did not comply with or intentionally disregarded such a discovery order or otherwise failed

to find the hard drive in bad faith. To be sure, these findings indicate a level of frustration

from the district court. Additionally, as Defendant points out, at times during the

proceedings, the district court questioned the State’s efforts to locate the hard drive.

However, it is dispositive that the district court never issued an unambiguous order requiring

the State to turn over the hard drive to Defendant.

{22} As we have discussed, at the January 27, 2011 hearing, the district court told

Defendant to determine the cost and identify an expert and that the issue of turning over the

hard drive could be discussed at a later time upon receipt of that information. At the

February 7, 2011 status conference, Defendant indicated that he would present an order to

the district court to sign compelling production of the hard drive, but such an order does not

appear in the record. At the March 7, 2011 status conference, the State likewise asked for

an order compelling the production, but the district court indicated that it needed to know

the number of hard drives that Goins would have to analyze and acknowledged that it had

no familiarity with the process for recovering data from hard drives or the time that it takes.
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At the March 21, 2011 status conference, once the State indicated that Goins was unable or

unwilling to locate the hard drive, the district court directed Defendant to file whatever

motion he deemed necessary. Defendant subsequently filed his motion to dismiss. Under

these circumstances, the district court did not unambiguously order the State to produce the

hard drive before dismissing the case, and the State therefore could not have intentionally

disregarded or defied a discovery order. See Harper, 2011-NMSC-044, ¶ 27 (reversing the

suppression of witness testimony because, among other reasons, the district court did not

unambiguously order the state to produce the witness for a witness interview).

{23} Additionally, it is unclear to what extent the district court granted the motion to

dismiss as a discovery sanction for the failure of the State to produce the hard drive. As we

have discussed, and as the State points out, the district court’s order lacks any specific

finding of bad faith, willful noncompliance, or intentional disregard of a discovery order to

produce the hard drive. On this basis alone, the district court’s order is an abuse of

discretion in dismissing the case to the extent it did so as a discovery sanction for the State’s

failure to provide the hard drive to Defendant. Cf. State v. Hill, 2005-NMCA-143, ¶¶ 22-23,

138 N.M. 693, 125 P.3d 1175 (reversing a district court’s dismissal of charges because the

district court’s finding did not indicate that it applied all three prongs of the test for lost or

destroyed evidence). To the extent that the district court dismissed Defendant’s charges for

the failure of the State to produce Investigator Bates’ hard drive in defiance of a discovery

order to produce the hard drive, the district court abused its discretion. We thus turn to

whether the district court abused its discretion in dismissing the charges against Defendant

under the framework for lost or destroyed evidence based on the lost or destroyed eight

minutes of the recording of the initial interview.

LOST OR DESTROYED EVIDENCE

{24} From the order granting the motion to dismiss, it appears that the district court

granted the motion based on the Chouinard line of cases for lost or destroyed evidence. The

district court made findings, although conclusory, that the lost audio recording of the initial

interview was material and that the loss was prejudicial to Defendant. In evaluating whether

the district court abused its discretion under Chouinard, we look to whether (1) the State

breached a duty or intentionally deprived Defendant of the recording of the initial interview,

(2) the lost or destroyed recording of the initial interview is material to the defense, and (3)

whether Defendant suffered prejudice. See Chouinard, 96 N.M. at 661, 634 P.2d at 683.

The purpose of this test is to assure that the district court arrived at a determination that will

serve the ends of justice. Id.

{25} The State concedes that the first prong of the test is met because the State is required

to disclose statements made by any anticipated State witness. See Rule 5-501(A)(5) NMRA.

The State challenges the district court’s determination as to the second and third prongs of

the Chouinard test. As to materiality, Defendant primarily contended in the district court

that the initial interview was material because Victim did not disclose anal penetration in the

initial interview in contrast to subsequent interviews in which she disclosed anal penetration.
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Defendant argued that the inconsistency between the initial interview and subsequent

interviews bears on the credibility of Victim and is exculpatory in the sense that it does not

support any allegation of anal penetration, which formed the basis of four counts of the

indictment.

{26} The State contends that the district court abused its discretion in finding materiality

because (1) Victim disclosed oral penetration and identified Defendant as the perpetrator,

and therefore the initial interview did not fully support a claim of innocence; (2) the initial

interview was not exculpatory because the hearsay rules prevent Defendant from introducing

the statement as substantive evidence for the truth of the matter asserted; and (3) although

the initial interview could be used to impeach Victim and question her credibility, it did not

rise to the level of “material” as defined by our Supreme Court under the framework for lost

or destroyed evidence because it was simply cumulative impeachment evidence in view of

numerous inconsistencies made during her interviews with the safe house, her grand jury

testimony, and her pre-trial interview. Our Supreme Court has defined “material” as a “

‘reasonable probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A ‘reasonable probability’ is a probability sufficient

to undermine confidence in the outcome.’ ” State v. Fero, 107 N.M. 369, 371, 758 P.2d 783,

785 (1988) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985) for the definition of

materiality from the United States Supreme Court’s test for due process analysis for

undisclosed evidence).

{27} We do not agree with the State that Victim’s initial statement to Investigator Bates

was not material because its only purpose was to impeach Victim’s testimony and challenge

her credibility. The State primarily cites State v. Boeglin, 105 N.M. 247, 254, 731 P.2d 943,

950 (1987) and United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011), for the

proposition that “cumulative impeachment evidence” is not material under our standard.

However, both cases are distinguishable. Boeglin involved a case in which the defendant

claimed that the state knowingly used false evidence after trial in a different procedural

posture than this case. 105 N.M. at 253-54, 731 P.2d at 949-50. In Boeglin, the state

conceded and disclosed to the jury that the transcript at issue was erroneous because it was

missing information, and the district court instructed the jury to rely upon the actual tapes

and not on the transcript with the missing information. Id. at 254, 731 P.2d at 950. Our

Supreme Court considered the alleged omission in the “context of the entire record” and

determined that it was not material because its only purpose was to bolster the defendant’s

credibility “generally” and to attack the credibility of the two investigators conducting the

interview. Id.

{28} Cooper addressed a situation in which the district court suppressed testimony that a

government witness prepared false or fraudulent tax returns, which the defendant intended

to use for impeachment purposes. 654 F.3d at 1122. The Tenth Circuit held that the

testimony was not “material” because it was only for impeachment and the witness was not

a crucial or critical witness to the government’s claim. Id. at 1123. In this case, we cannot

say that Victim is not a crucial or critical witness. An initial statement to investigators made
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by an alleged victim shortly after the incident in question and which the defendant wishes

to use to attack the alleged victim’s credibility is material under the second prong of the

Chouinard test. See Bartlett, 109 N.M. at 681, 789 P.2d at 629 (holding that a tape recorded

statement made to investigators after the incident in which the alleged victim described the

perpetrator was material because it bore on the credibility of the alleged victim); see also

Smith v. Cain, __ U.S. __, 132 S. Ct. 627, 629-30 (2012) (holding that notes from the

investigating investigator that the only eyewitness could not describe the perpetrator was

material).

{29} We thus turn to whether Defendant suffered prejudice by the loss of the recording

of the initial interview with Investigator Bates. See Chouinard, 96 N.M. at 661, 634 P.2d

at 683. In the district court, Defendant argued that the loss of the recording was prejudicial

because it was the most contemporaneous account of the allegations against Defendant, it

was inconsistent with later accounts Victim gave investigators, and the later accounts

occurred only after Victim had the opportunity to talk with her mother. Defendant also

contends that the initial interview was “extremely critical” to the defense because Victim

was the only eyewitness to the alleged crimes and there was no inculpatory physical

evidence against Defendant. The district court found that the loss of the initial interview

prejudiced Defendant without elaborating upon its finding.

{30} On appeal, the State contends that the district court erred in finding prejudice because

(1) Defendant did not need the recording to establish the inconsistency because Investigator

Bates could have testified that Victim did not disclose anal penetration in the initial

interview, and (2) the district court could have considered a stipulation or instruction to the

jury regarding the contents of the initial interview and explaining the circumstances

regarding the lost recording. The State points out that Defendant conceded at the January

27, 2011 hearing that Investigator Bates took “copious notes,” that Investigator Bates

testified that his report contained everything said during the initial interview, and that

Investigator Bates listened to the recording several times before the file was corrupted to

ensure his report was accurate. Investigator Bates further testified that he would testify at

trial that Victim did not disclose anal penetration during the initial interview.

{31} When evaluating prejudice, we examine “the importance of the missing evidence to

[the] defendant[] and the strength of the other evidence of [the] defendant’s guilt.” Bartlett,

109 N.M. at 681, 789 P.2d at 629. Because the district court granted the motion to dismiss

and the case did not proceed to trial, we focus on the importance of the missing evidence to

Defendant’s case. Cf. id. (focusing on the importance of the missing evidence to the

defendant’s case because the jury failed to reach a verdict and therefore the strength of the

other evidence was not evident).

{32} This Court has examined the prejudice prong in a similar case involving a similar

piece of missing evidence. In Bartlett, the state charged the defendant with criminal sexual

penetration, and the investigating officer interviewed the alleged victim on two occasions.

Id. at 680, 789 P.2d at 628. The state failed to produce the recording of the first interview,
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and the district court dismissed the charge against the defendant after a first trial resulted in

a mistrial and the state indicated that it intended to retry the defendant. Id. Although this

Court characterized the dismissal as a discovery sanction, we applied the Chouinard test for

lost or missing evidence in determining whether the district court abused its discretion in

dismissing the charge. Bartlett, 109 N.M. at 680, 789 P.2d at 628. We held that the

recording of the interview was “important to [the] defendant[, but not] so important as to

deprive [the] defendant of a fair trial.” Id. at 681, 789 P.2d at 629. We concluded that the

defendant “was still able to vigorously raise and pursue” mistaken identity and fabrication

defenses by pointing out discrepancies in the description contained in the initial police

report, testimony at the preliminary hearing, and testimony at the first trial. Id. at 682, 789

P.2d at 630. Additionally, the defendant cross-examined the victim and the investigating

officer at the first trial about the inconsistency and “extensively argued” the issues regarding

the missing interview. Id. We therefore held that the district court abused its discretion in

dismissing the charge. Id.

{33} Similarly, in Duarte, 2007-NMCA-012, ¶¶ 1, 4-5, the state lost a videotape showing

the defendant taking a second set of field sobriety tests, and the defendant moved to suppress

all evidence that the videotape may have impeached or for dismissal of the charge. Applying

Chouinard, this Court held that the defendant was not prejudiced by the loss of the

videotape. Duarte, 2007-NMCA-012, ¶¶ 9-11. We reasoned that (1) the defendant was able

to cross-examine the officer about the lost video and to argue its significance to the jury,

including attacking the officer’s credibility and reliability; (2) the defendant had the officer’s

report at his disposal and the report contained information relating to the field sobriety tests;

and (3) there was other evidence of the defendant’s guilt including his breath alcohol content

reading. Id. ¶ 11.

{34} In this case, the district court abused its discretion in dismissing the charges against

Defendant due to the lost audio recording of the initial interview because the loss of the

recording of the initial interview was not prejudicial to Defendant. First, the record reveals

that Defendant had other means to point out the inconsistencies between the initial interview

and her later statements and interviews. Investigator Bates testified that his police report on

the incident contained the contents of the initial interview, that he listened to the initial

interview several times while preparing his report, and that he would testify that Victim did

not reveal anal penetration during the initial interview. Defendant initially conceded that

Investigator Bates took “copious notes” of the initial interview. The actual recording was

therefore unnecessary for Defendant to prove that particular inconsistency to the jury and

for Defendant to impeach Victim. See Bartlett, 109 N.M. at 682, 789 P.2d at 630 (holding

that the defendant suffered no prejudice from the loss of evidence because the defendant

could use the police reports and cross-examinations of the investigating officer and the

victim to establish the inconsistency between the victim’s description of the perpetrator).

Second, the district court should have considered other alternatives to dismissal that would

have ameliorated any prejudice suffered by Defendant. At the March 7, 2011 hearing, the

district court suggested that the loss of the initial interview could be resolved by a

stipulation. At the evidentiary hearing, the State agreed that it would consent to a jury
12

instruction explaining the circumstances of the lost recording. However, in its order granting

the motion to dismiss, the district court did not address either alternative or why they would

be inadequate given the circumstances of the case. Third, as we stated in Duarte, reversal

is not mandated unless the lost evidence materially affected a determination of guilt or

innocence. 2007-NMCA-012, ¶ 11. Given that Defendant only sought to use the initial

interview as impeachment evidence and because Defendant had other means to introduce the

contents of the initial interview into evidence, the ultimate remedy of dismissal was not

appropriate. See Chouinard, 96 N.M at 661, 634 P.2d at 683 (stating that the three-part test

for a remedy for lost or destroyed evidence is intended to serve the ends of justice). We note

that it would have been helpful for us to have findings by the district court explaining its

findings of prejudice for our appellate review.

{35} Defendant argues that Smith, ___ U.S. ___, 132 S. Ct. 627 is controlling in this case.

In Smith, the United States Supreme Court held that witness statements made to an

investigating detective that the state failed to disclose to the defendant were material because

the defendant could have used the statements to impeach the witness. Id. ___, 132 S. Ct. at

629-30. However, Smith involved a claim for post-conviction relief, and the defendant was

convicted without being aware of the statements that he could have used to impeach the

witness. Id. In this case, although evidence regarding Victim’s initial interview is material

to Defendant in order to impeach Victim, Defendant had alternative means to present

inconsistencies to the jury, and he will not be deprived of presenting a defense based on the

loss of the recording. It is on the basis of the absence of prejudice, not materiality, that we

base our conclusion that the district court abused its discretion in dismissing the charges.

{36} Because we have concluded that the district court abused its discretion in finding

prejudice against Defendant for the loss of the initial interview to the extent that it dismissed

the case and, therefore, reverse on this ground, we need not address the State’s argument that

dismissal is not an available remedy when an issue of lost or destroyed evidence is raised

pretrial.

CONCLUSION

{37} We hold that the district court abused its discretion in dismissing the charges against

Defendant due to the lost audio recording of the initial interview because the loss of the

recording of the initial interview was not prejudicial to Defendant. Accordingly, we reverse

the district court’s dismissal of Defendant’s charges.

{38} IT IS SO ORDERED.

_____________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:
13

____________________________________

JONATHAN B. SUTIN, Judge

____________________________________

CYNTHIA A. FRY, Judge

Topic Index for State v. Redd, No. 31,558

APPEAL AND ERROR

Standard of Review

CRIMINAL LAW

Child Abuse and Neglect

Criminal Sexual Penetration

False Imprisonment

Sexual Exploitation of Children

Sexual Offences

CRIMINAL PROCEDURE

Dismissal of Charges

Prejudice

Sanctions

EVIDENCE

Disclosure

Discovery

Lost Evidence

Prejudicial Evidence

Taped Evidence

JUDGES

Abuse of Discretion