State v. Klempt

910 P.2d 326, 121 N.M. 250
CourtNew Mexico Court of Appeals
DecidedDecember 6, 1995
Docket16149
StatusPublished
Cited by4 cases

This text of 910 P.2d 326 (State v. Klempt) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Klempt, 910 P.2d 326, 121 N.M. 250 (N.M. Ct. App. 1995).

Opinion

OPINION

HARTZ, Judge.

1. Kyle Hinkle appeals an order holding him in criminal contempt of court for failing to comply with a subpoena. Hinkle contends that the evidence is insufficient to support the order. To resolve this contention we must consider an issue of first impression in New Mexico — the propriety of an on-call subpoena. We affirm.

FACTS

2. On July 28, 1994 Hinkle, who at the time was a sergeant detective with the Lovington Police Department, was personally served with a subpoena to testify at the trial of Michael Edward Klempt on criminal charges. The subpoena commanded him to appear on September 6, 1994 at 8:30 a.m. at the Lea County Courthouse. At the bottom of the subpoena was a directive to call the district attorney’s office after 5:00 p.m. on the day before the setting to confirm that the hearing was still set.

3. On August 31 assistant district attorney Nelson Spear informed Hinkle that the case was going to trial and would be first or second on the court’s trailing docket. On September 7 Spear called the police department shortly after 3:00 p.m. to advise Hinkle that the trial would be starting the next day and that his attendance was required. Spear was told that Hinkle had left at approximately 3:00 p.m. to go on a vacation. Nevertheless, with the assistance of the police dispatcher, Hinkle’s supervisor was able to reach him by telephone by 3:25 p.m. and request Hinkle to call Spear. Sometime before 3:45 p.m. Spear spoke to Hinkle to inform him that he was needed for trial the next day. Although he seemed upset, Hinkle agreed to be present. Within an hour, however, Hinkle had another telephone conversation with Spear in which Hinkle stated that he was going to continue on his trip and would not be attending the trial.

4. When the trial commenced on September 8, Hinkle failed to appear. The district court dismissed the charges against Klempt for reasons unrelated to Hinkle’s failure to appear.

5. On sworn motion by Spear, the district court issued an order requiring Hinkle to show cause why he should not be held in contempt for his failure to appear. Following an evidentiary hearing the district court held Hinkle in contempt and fined him $350.

DISCUSSION

6. To begin with, we discuss the legal consequences of a subpoena. For the reasons that follow, we reject Hinkle’s contention “that a Subpoena for attendance at 8:30 a.m. on September 6, 1994 does not support a finding that such subpoena is effective for attendance on September 8, 1994.” This contention constituted essentially all of Defendant’s argument at the contempt hearing.

7. Hinkle was subpoenaed to testify in a criminal trial. The New Mexico Rules of Criminal Procedure for the District Courts state that in general “[t]he Rules of Civil Procedure for the District Courts ... govern the compelling of attendance of witnesses in criminal cases.” SCRA 1986, 5 — 613(A) (Repl. 1992). The pertinent provisions of the civil rules are as follows:

Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

SCRA 1986,1-045(A) (Repl.1992).

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

SCRA 1986,1-045(F).

8. Rule 5-613(A) says nothing about a continuing duty to attend court or keeping witnesses “on call.” Nonetheless, the rules governing subpoenas must be given a common-sense, practical construction. Many trials last several days or longer. Given the contingencies of trial practice, it is almost impossible to predict precisely when a witness will be needed to testify. Thus, when a subpoena is issued, it will ordinarily state the time at which trial is scheduled to commence rather than the time at which the witness will actually testify. Yet, no purpose would be served by requiring every witness scheduled for a trial to appear at the courthouse at the time trial is scheduled to commence and then remain at the courthouse until the witness is called to testify in the courtroom. Such a requirement would waste time and money as well as antagonize witnesses and discourage them from cooperating with litigants.

9. Consequently, it is frequent practice for a party who subpoenas a witness to advise the witness that it is not necessary to appear at the precise time stated on the subpoena, to provide the witness with an approximate time at which the witness’s testimony will be needed, and to arrange a means by which the witness can be kept informed about developments. This practice is particularly useful when the trial court uses a trailing docket, which sets several cases to begin at the same time so that if the first case scheduled does not proceed to trial (because, for example, of a settlement or plea agreement), the next case is ready to go. The effect of the on-call procedure is to ensure the attendance of the witness while excusing the witness from having to stay at the courthouse from the commencement of trial until testifying. As stated by one court:

The on-call subpoena minimizes the burden by not requiring the witness to be in court when his appearance is not needed. Instead, he is allowed to remain at home or work, subject to the requirement of keeping in touch with the [party issuing the subpoena] to determine when the case has been rescheduled and/or when his testimony is needed.

Reiman v. Breslin, 175 N.J.Super. 353, 418 A.2d 1293, 1299 (App.Div.1980). In short, common practice — a practice that is essential if the courts are to avoid undue burdens on witnesses and counsel — is based on the understanding that a subpoena imposes a continuing duty on the witness to attend court at the direction of the party who obtained the subpoena.

10. Not surprisingly, this understanding reflects the law. The United States Supreme Court has held that when a trial is continued from April 2 to April 9, a subpoena to attend on April 2 compels attendance on April 9. Blackmer v. United States, 284 U.S. 421, 443, 52 S.Ct. 252, 257, 76 L.Ed. 375 (1932). The Court wrote that “[i]t was the duty of the petitioner to respond to the subpoena and to remain in attendance until excused by the court or by the government’s representatives.” Id. Although Blackmer was interpreting a statute that specifically required a person served with a subpoena to attend “ ‘and not to depart the court without leave thereof, or of the district attorney,’ ” United States v. Snyder, 413 F.2d 288, 289 (9th Cir.), cert. denied, 396 U.S. 907, 90 S.Ct.

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Related

State v. Elliott
2001 NMCA 108 (New Mexico Court of Appeals, 2001)
State v. Lucero
2001 NMSC 024 (New Mexico Supreme Court, 2001)
Attorney General v. Montoya
1998 NMCA 149 (New Mexico Court of Appeals, 1998)

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Bluebook (online)
910 P.2d 326, 121 N.M. 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-klempt-nmctapp-1995.