State v. Mathis

808 P.2d 972, 111 N.M. 687

• Court: New Mexico Court of Appeals
• Decided: March 20, 1991
• Docket: 11799
• Status: Published

Opinions

OPINION

BIVINS, Judge.

The state appeals an order dismissing with prejudice criminal charges against defendants based on the state’s failure to comply with the district court’s discovery order. It claims: (1) abuse of discretion in ordering the prosecution, to produce a list that did not exist and which was not material or relevant; and (2) assuming no error in no. 1, abuse of discretion in utilizing the most severe sanction in lieu of lesser sanctions. We discuss these issues in somewhat different order. We first address the effect of the supreme court’s writ of prohibition issued to the district court during the discovery proceedings. Second, we generally address the applicable discovery rule and the duties and obligations of the respective parties. Third, we discuss whether the district court abused its discretion in imposing the sanction of dismissal, and conclude that it did. Finally, we provide guidelines for the district court on remand. Because we conclude the district court abused its discretion in dismissing the criminal charges, we set aside its order and remand for further proceedings.

BACKGROUND

The following, other than the recitation of the charges, is taken from findings in the district court’s order of dismissal. The state charged defendants with various counts of trafficking controlled substances, based on information supplied to the state police by an informant, Owen Bradley. Bradley had arranged and personally transacted the alleged drug deals.

Defendants filed a motion for discovery in district court in February 1988. On July 25,1988, the district court entered an order granting some of defendants’ requests for discovery. Pertinent to this appeal, that order required the state to produce:

A complete list by style to include but not limited to Defendants’ names, courts, court numbers, dates of filing, and summary of charges of every case filed by the State of New Mexico in any court in the State of New Mexico which was based upon information supplied by Owen Bradley.

The list was to contain only cases “now public in which Owen Bradley’s identity was disclosed.” The July 25 order also required the state to disclose Bradley’s “rap sheet” and any documents reflecting payment of funds related to the pending case against defendants.

On November 18, 1988, the district court heard and denied defendants’ motion to dismiss for failure to comply with the discovery order of July 25, 1988. In its later order dismissing the case, the district court recited “unrebutted evidence” received at the November 1988 hearing that Bradley had worked for several law enforcement agencies throughout New Mexico as a paid informant; that agent Mike French of the New Mexico State Police, who had filed the criminal complaint in this case, wrote every police and sheriff’s department in New Mexico requesting information on Bradley and had received fifty-seven responses, all of which were made available to the defense; that Bradley had worked for the state police in other New Mexico communities; that John Templeman, assistant counsel for the Department of Public Safety (Department), had written Agent French, in response to a request for information on Bradley, advising that he had checked with the Narcotics Bureau but was unable to supply information because the files were not indexed by reference to the informant, and that it would not be feasible to contact the many officers who had served in the Bureau over the past years; and that Bradley’s role in drug-related cases has been made public in the Sixth Judicial District (the district which encompasses the county in which defendants’ case was filed), and that those cases have been disclosed to the defense.

The dismissal order also stated that the district court, at the conclusion of the November 1988 hearing, had been satisfied that the district attorney’s office and Agent French had made a good faith effort to obtain the Bradley material, “but that the Department of Public Safety had not.” As a result, the district court, on November 18, 1988, ordered the secretary of the Department and other officials with the Department to deliver the Bradley material.

The order of dismissal further recites that between November 18, 1988, and February 23, 1989, the Department did nothing either to obtain the discovery material or to further explain why it was unable to do so, but instead moved to set aside the November 18 order on jurisdictional grounds. That motion, made on December 1, 1988, was denied on January 5, 1989, and the Department was given until March 1, 1989, to deliver the material.

On February 23, 1989, the Department filed a petition with the state supreme court asking for a writ of prohibition. The supreme court made permanent its alternative v/rit of prohibition and set aside the November 18 and January 5¹ orders. Its order required the district court to desist from entering further orders to the Department or its officials without prior notice and an opportunity to be heard. The supreme court did allow the district court to proceed under its prior order of July 25, 1988, “in a manner not inconsistent with this Order.”

On June 15, 1989, the district court issued its order directing the secretary of the Department to show cause why he should not immediately provide the discovery material ordered on July 25, 1988. The Department challenged the order on jurisdictional grounds. That challenge was denied.

On June 30, 1989, the district court held a hearing and gave the Department until July 10, 1989, to produce the discovery material. On July 10, the state filed the affidavit of Major A.P. Wickard, head of the Narcotics Bureau, stating that he had searched the records with respect to compiling a list as required by the July 25, 1988, order; that the records showed Bradley was used by several New Mexico State Police narcotics agents, some of whom were active and others retired; that he had contacted the currently employed agents but that none had any memory of the informant’s name ever being made public; that he had made several unsuccessful attempts to contact retired officers; and that the records did not indicate Bradley’s name being made public.

The district court found Major Wickard’s affidavit did not establish the Department acted in good faith or show good cause why defendants’ motion to dismiss should not be granted. The order recites three extensions of the six-month rule (SCRA 1986, 5-604) granted the state, resulting in a delay of approximately eighteen months, which the court found attributable to the Department’s reluctance to provide the discovery material. The district court found this delay had prejudiced defendants “by continuing limited conditions of release and impairing their freedom.”

The district court found the state had complied, with the requirements of the July 25, 1988, order, with the exception of the Bradley material set forth above. Based on that failure, the district court dismissed the case against defendants with prejudice. This appeal followed. See NMSA 1978, § 39-3-3(B)(1) (state given appeal from dismissal of criminal complaint, indictment, or information).

Other facts taken from the pleadings, hearings, and the supreme court proceedings will be noted in the discussion portion of the opinion.

DISCUSSION

1. The Effect of the Supreme Court’s Writ of Prohibition

Before addressing the merits of the state’s appeal, we answer defendants’ contention that the supreme court’s permanent writ, by allowing the district court to proceed with its July 25, 1988, order conditioned on the Department being given notice and an opportunity to be heard, foreclosed any challenge to the authority of the district court to order the discovery in question. We reject this argument.

The supreme court’s order specifically set aside the district court’s orders of November 18, 1988, and January 5, 1989, which directed the Department, its secretary, the chief of the state police, and Major Wickard to deliver the Bradley discovery material by a date certain. The supreme court order further ordered the district court to desist from entering further orders directed to the Department or its officials without prior notice and an opportunity to be heard. By further allowing the district court to proceed with its prior order of July 25, 1988, “in a manner not inconsistent with this Order,” it can hardly be said that the supreme court intended to bar the Department or its officials from challenging the July 25, 1988, order as it might affect them after they were afforded notice and an opportunity to be heard. To read the supreme court order as defendants suggest would render the right to notice and a hearing superfluous. If the Department and its officials have the right to notice and a hearing, they have a right to be heard at that hearing. The right to be heard includes the right to object insofar as the order affects the Department or its officials.

The dissent interprets the supreme court’s order differently. Relying on State v. Wisniewski, 103 N.M. 430, 708 P.2d 1031 (1985) (requirement for disclosure applies to all members of prosecutorial team), the dissent would hold that the Department did not have a right to separate notice and a hearing before being required to produce discovery material. While this argument has a certain facial appeal, we believe it runs counter to the clear wording of the supreme court order, which expressly nullified the two orders (November 18, 1988, and January 5, 1989) that directed the Department to produce the list. Given the sensitive nature of the Department’s drug-related files, the supreme court could have considered notice and a hearing essential. This would not offend the prosecutorial team concept announced in Wisniewski.

This court is free to consider whether the trial court’s order dismissing the criminal charges constituted an abuse of discretion.

2. Rule 5-501(A)(3)

Because defendants concede that SCRA 1986, 5-501(A)(6) (requiring production of material evidence favorable to the defendant, production of which is required by constitutional due process) did not provide the basis for the discovery order, we address only Rule 5-501(A)(3), the rule defendants contend does apply. Rule 5-501(A)(3) states,

[T]he state shall disclose or make available to the defendant:

(3) any books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defense or are intended for use by the state as evidence at the trial, or were obtained from or belong to the defendant * * * * [Emphasis added.]

Under this rule, defendants requested that the state provide them with a complete list of all cases filed by the state based on information supplied by Bradley, but only in those cases in which Bradley’s identity was disclosed.

The state argues that since it did not have within its possession, custody, or control a list of cases filed in the state of New Mexico in which Bradley had supplied information and in which his identity had been disclosed, it had no obligation to compile such a list. While a literal reading of the rule might support the state’s position, we conclude that if the state has within its possession, custody, or control documentary information from which a list could be compiled, the rule permits ordering disclosure. This does not mean, however, that the state can be compelled to produce additional information not under its control, nor is it required to conduct an in-depth investigation. See State v. Clark, 568 P.2d 406 (Alaska 1977) (state has no obligation to perform independent investigation to determine what aliases informant had used, other than to check what was already within its possession or control). Thus, the Department had no obligation to conduct an investigation going beyond a summary of information contained in the documents within the Department’s possession, custody, or control. In particular, the Department had no obligation to call officers to check their memories.

We simply hold that, subject to such safeguards as may be necessary to protect the sensitive nature of its files and records, the Department can be ordered to supply such information as may be needed by defendants in order to effectively present their defense. It may be necessary for the district court to hold in camera proceedings to determine whether and to what extent the Department can be compelled to disclose information within its files and records. The district court suggested this procedure at the November 18 hearing; however, as previously noted, the Department was not given notice of that hearing or subpoenaed, and, further, that suggestion was not carried forth into the order of November 18.

The state also argues that the material requested does not meet the requirement of Rule 5-501(A)(3) that it be material to the preparation of the defense. We disagree. The information defendants sought may be material. See R. 5-501(A)(3); State v. Lovato, 91 N.M. 712, 580 P.2d 138 (Ct.App.1978). Bradley had been listed in the criminal information as a witness. Defendants contend he is a paid informant who is also a drug addict and alcoholic. Consequently, they wanted the names of cases filed in any court in New Mexico based on information supplied by Bradley in which his identity was disclosed. With this information, defendants hoped to impeach Bradley’s credibility by showing that he supported his habits by informing. Thus, the discovery information was material to establish Bradley's motive. See State v. Lovato.

Nevertheless, the state is not required to do defendants’ work for them. See State v. Clark; see also United States v. Shoher, 555 F.Supp. 346 (S.D.N.Y.1983). The record before us indicates that Agent French has already disclosed to the defense the names of some cases in the Sixth Judicial District in which Bradley provided information. At the final hearing before imposition of the sanction, defense counsel stated that they had knowledge of additional cases within that district. If so, then it would be up to defendants to pursue the discovery of that information. The state does not have to prepare their defense.

We note that the discovery order requires disclosure of the Bradley material in every case filed in the state of New Mexico. At some point, the use of such material on cross-examination would become cumulative. See State v. Baldizan, 99 N.M. 106, 654 P.2d 559 (Ct.App.1982). This should be kept in mind in further discovery proceedings.

3. The District Court Abused Its Discretion in Dismissing the Charges

The district court’s order finding lack of good faith by the Department (as well as good faith on the part of the district attorney and Agent French) was based on what the court referred to as “unrebutted evidence” offered at the November 18, 1988, hearing. As previously discussed, this consisted, according to the findings, of evidence that Bradley had previously testified he worked for several law enforcement agencies throughout the state as a paid informant and of Agent French’s efforts to obtain this information and make it available to defendants. The district court then recited the orders of November 18, 1988, and January 5, 1989, directed to the Department and the proceedings following the supreme court order which we have previously mentioned. Having reviewed the tapes of the November 18, 1988, hearing and interpreting the supreme court order as the district court apparently did, we can readily understand the district court’s frustration. By November 18, it had been nine months since defendants had requested the Bradley material, and there had not been full compliance, at least to the court’s satisfaction. By the time Major Wickard filed his affidavit on July 10, 1989, it had been seventeen months. Moreover, at the November 18 hearing, the district attorney fueled doubts concerning the Department’s intentions to comply by statements made. This frustration resulted, however, from several misunderstandings.

In finding bad faith, we believe that the district court misapprehended the scope of the supreme court’s writ of prohibition and misconceived what could be ordered pursuant to Rule 5-501(A)(3). First, by reciting the orders of November 18,1988, and January 5, 1989, and finding that the Department did nothing to either obtain the discovery material or explain why it was unable to do so, the district court failed to appreciate the significance of the supreme court’s writ setting aside those orders of November 18 and January 5 and giving the Department or its officials the right to prior notice and an opportunity to be heard before entering further orders. The district court’s finding 24 states that compliance with the discovery order of July 25, 1988, with the exception of the Bradley material, “does not mitigate the State’s conduct in this matter in light of the Department of Public Safety’s continuing refusal or reluctance to provide timely discovery.” This finding indicates that the district court thought that the Department had been under an obligation to comply since November 18, 1988. This is not correct. At the earliest, the Department had been ordered to provide the material on June 30, 1989. Up until that time, and since the issuance of the supreme court writ, the district court had issued only one order requiring the Department to show cause why it had not complied, when there had been no order requiring it to comply. Thus, the finding of lengthy delay — which no doubt prompted the severe sanction— was based upon an erroneous belief that the Department had been under order to comply since the prior November 18 order.

Second, insofar as the district court relied on matters presented to it at the November 18 hearing (although it is not apparent what, if any, reliance the district court placed on such matters), it was an abuse of discretion by the district court to rely on that information without notifying the Department of its intent to rely and then providing the Department with an opportunity to rebut or respond to anything presented at the November 18 hearing.

There is no evidence to suggest that the Department failed to completely comply with its duties under the rule. The affidavit asserts that Major Wickard checked all documents that might provide the necessary information. As explained in our discussion of Rule 5-501(A)(3), the failure of Major Wickard to make verbal contact with former state police officers did not violate the order, as properly construed. When examined in light of the supreme court’s writ, Major Wickard’s affidavit does not establish bad faith. Further, that affidavit was never discredited by defendants.

The dissent states the affidavit was inconsistent with earlier representations made to the trial court. We cannot agree. The only thing the Department had represented was that its files were not indexed by informants and that it would not be feasible to contact the many officers who had served the Bureau over the past years. Major Wickard’s affidavit merely reflects an effort to comply, notwithstanding the problem noted earlier.

4. Proceedings on Remand

To ensure that compliance is met, and without interfering with the district court’s proper discretion, we set forth the following guidelines. On remand, the following steps should lead to a prompt and satisfactory resolution of the discovery problem:

a. The district court should ascertain the number of cases in which Bradley has provided information known already by defense counsel or their clients, together with the cases in the Sixth Judicial District as provided by Agent French or others.

b. The court should then determine whether that number will adequately allow for cross-examination. If so, any need for further discovery may be outweighed by the burden that would be imposed by compelling it.

c. If not adequate, the district court could hold a hearing to work out the details for obtaining the additional information. The court can then determine how best to balance defendants’ need for the information against the state’s interest in the confidentiality of its files and other legitimate concerns. The district court may want Bradley available to testify or to examine him in camera. The court may also wish to utilize in camera examination to ascertain the Department’s difficulties, if any, in producing additional information. The district court should bear in mind that under Rule 5-501(A)(3) the state (including the Department) is under no obligation to acquire additional information not within documents under its control or to prepare defendants’ case for them. United States v. Shoher; State v. Clark.

d. The district attorney or the Department may at any juncture move the district court for an in camera hearing or inspection or other orders necessary to otherwise safeguard and protect confidential or sensitive information.

e.The parties, counsel, and the Department shall cooperate with the district court to the end that the above can be completed forty-five days after mandate issues.

If there is failure to comply, then the court should consider a sanction. Rule 5-501(G) provides, “If the state fails to comply with any of the provisions of this rule, the court may enter an order pursuant to [SCRA 1986,] 5-505 or hold the prosecutor in contempt or take other disciplinary action pursuant to [SCRA 1986,] 5-112.” Rule 5-505 contains a list of sanctions available when a party fails to comply. Only one could be viewed as contemplating the extreme sanction of dismissal. The rule authorizes the district court, among other sanctions, to “enter such other order as it deems appropriate under the circumstances.”

Our appellate courts have not heretofore directly addressed the question of whether or under what circumstances criminal charges may be dismissed for failure by the state to comply with a discovery order entered under Rule 5-501.² Federal authority interpreting Federal Rule of Criminal Procedure 16(d)(2), which contains similar language to our Rule 5-501(G), indicates the extreme sanction should be used only under extreme circumstances. As a general rule, the district court should fashion the least severe sanction that will accomplish the desired result. United States v. Euceda-Hernandez, 768 F.2d 1307 (11th Cir.1985) (court abused discretion in suppressing statements as sanction for prosecutor’s violation of discovery requirement); United States v. Gee, 695 F.2d 1165 (9th Cir.1983); United States v. Sarcinelli, 667 F.2d 5 (5th Cir.1982) (suppression of evidence was abuse of discretion even when prosecutor engaged in contumacious conduct). 8 J. Moore, Moore’s Federal Practice 1126.03[3], at 16-51 to -52 (2d ed. 1990) says, “In an unusual case the court might be justified in taking the extreme measure of ordering the prosecution dismissed” (citing Harris v. Young, 607 F.2d 1081 (4th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980)).

CONCLUSION

The order of dismissal is set aside and the case remanded with directions to reinstate the complaint and to proceed consistent with this opinion.³

IT IS SO ORDERED.

HARTZ, J., concurs. APODACA, J., dissents and files opinion.

1 . The supreme court’s order refers to "January 6"; however, since no order was entered on January 6, the correct date is January 5.

2 . The supreme court recently affirmed a dismissal of criminal charges where the state inadvertently lost evidence. See Scoggins v. State, 111 N.M. 122, 802 P.2d 631 (1990) (supreme court held loss of original fingerprints crucial since it prejudicially limited defendant's ability to impeach determinative evidence linking him to methamphetamine lab). While the evidence in question here may be material to defendants’ ability to effectively cross-examine a lay witness, it is by no means determinative of defendants’ guilt or innocence. Scoggins does not require affirmance.

3 . We note that, although we disagree with several of the dissent's assertions concerning what is in the record, we have not answered them specifically because they are not necessary to the result.