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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 

3 Plaintiff-Appellant,

4 v. NO. 34,894

5 DESIREE TORRES,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

8 Brett R. Loveless, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 Steven Johnson, Assistant Attorney General

12 Albuquerque, NM

13 for Appellant

14 Bennett J. Baur, Acting Chief Public Defender

15 Santa Fe, NM

16 for Appellee

17 MEMORANDUM OPINION

18 HANISEE, Judge.
2

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

2 Defendant Desiree Torres without prejudice. This Court issued a first calendar notice

3 proposing summary dismissal for lack of a final, appealable order. The State filed a

4 timely first memorandum in opposition to this Court’s notice of proposed disposition.

5 Following this Court’s decision in State v. Angulo, No. 34,714, mem. op. ¶ 1 (N.M.

6 Ct. App. Jan. 5, 2016) (non-precedential), concluding that the State is entitled to an

7 immediate right of appeal from the district court’s order dismissing the case without

8 prejudice, we issued a second notice addressing the merits of the appeal and proposing

9 to affirm. In response, the State filed a timely second memorandum in opposition,

10 which we have duly considered. Unpersuaded, we affirm.

11 Materiality

12 {2} We turn first to the State’s argument that the State was not required to disclose

13 the second CADS log because there was no showing of materiality to the defense. [2

14 MIO 3] The State acknowledges that Local Rule 2-400(D)(1) NMRA (2015) “does

15 not contain any language limiting the State’s duty to provide copies of documentary

16 evidence based on a lack of materiality to the defense[,]” but argues that because Rule

17 5-501(A)(3) NMRA requires a showing of materiality, this Court should interpret LR

18 2-400 to “place[] similar limits on the State’s duty to provide copies of documentary
3

1 evidence as those limits placed on the State’s duty to disclose documents under Rule

2 5-501.” [2 MIO 4]

3 {3} We decline to adopt the State’s proposed construction of LR 2-400 because

4 doing so would conflict with the plain language of the local rule. As our second notice

5 observed, pursuant to LR 2-400(D)(1), the State is required to make all initial

6 disclosures “described in Rule 5-501(A)(1)-(6) . . . at the arraignment or within five

7 (5) days of when a written waiver of arraignment is filed[.]” LR 2-400(D)(1). [2 CN

8 4–5] In addition to those disclosures, however, the State is also required to provide,

9 at the same time, “copies of documentary evidence, and audio, video, and audio-video

10 recordings made by law enforcement officers or otherwise in possession of the state.”

11 [2 CN 5 (quoting LR 2-400(D)(1)] The Rule provides that “[e]vidence in the

12 possession of a law enforcement agency or other government agency is deemed to be

13 in possession of the state for purposes of this rule.” LR 2-400(D)(3). Therefore, we

14 conclude that the plain language of LR 2-400 is broader than that of Rule 5-501(A)(3),

15 requiring the State to provide to the defense copies of documentary evidence

16 irrespective of a showing of materiality. Accordingly, we affirm.

17 Lack of Reasonable Opportunity for Disclosure
4

1 {4} We turn next to the State’s second argument that the State should have received

2 a reasonable opportunity to disclose the CADS evidence after the district court

3 determined that the evidence was subject to disclosure. [2 MIO 7] In support of its

4 contention, the State relies on State v. Harper, 2011-NMSC-044, ¶¶ 16–20, 150 N.M.

5 745, 266 P.3d 25, to argue that the district court’s dismissal without prejudice was an

6 inappropriate sanction because the State asserted in good faith that the CADS log was

7 not subject to disclosure. [2 MIO 7–8] The State argues that this Court should read LR

8 2-400 to allow the State to assert that the evidence is not discoverable, permit the

9 parties to litigate the issue, and then if the district court determines that the evidence

10 is discoverable, to treat the evidence as newly discovered evidence pursuant to Rule

11 5-505(A). [2 MIO 8–9] In short, the State argues that LR 2-400 mandates a different

12 result when read in conjunction with Harper. [2 MIO 7–9] 

13 {5} We disagree and conclude that Harper is not analogous to the present situation.

14 In Harper, the district court excluded two key witnesses on behalf of the State, which

15 precluded the State from making a prima facie case against the defendant. 2011-

16 NMSC-044, ¶ 1. Our Supreme Court emphasized the serious nature of this type of

17 sanction, explaining that the exclusion of these key witnesses was the functional

18 equivalent of a dismissal with prejudice. Id. ¶ 21. Given the extreme effect of this type
5

1 of sanction and its impact on the fairness of the judicial process, our Supreme Court

2 explained that “like outright dismissal of a case, the exclusion of witnesses should not

3 be imposed except in extreme cases, and only after an adequate hearing to determine

4 the reasons for the violation and the prejudicial effect on the opposing party.” Id. A

5 dismissal without prejudice, however, where nothing appears to bar the State from

6 reindicting a defendant, does not fall within the category of extreme sanctions

7 contemplated by Harper, and the State has not pointed us to any authority suggesting

8 otherwise. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482

9 (“Where a party cites no authority to support an argument, we may assume no such

10 authority exists.”).

11 {6} For the foregoing reasons, we affirm.

12 {7} IT IS SO ORDERED.

13 

14 J. MILES HANISEE, Judge

15 WE CONCUR:

16 

17 MICHAEL D. BUSTAMANTE, Judge 

18 
6

1 JONATHAN B. SUTIN, Judge