Office of the
New Mexico
Director Compilation
Commission
2024.08.12
'00'06- 09:47:44
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2024-NMCA-060
Filing Date: May 31, 2024
No. A-1-CA-40209
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JOHN MARLOWE DAVIDSON,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
R. David Pederson, District Court Judge
Margaret McLean, Special Counsel
Santa Fe, NM
for Appellant
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellee
OPINION
YOHALEM, Judge.
{1} The State of New Mexico appeals the district court’s dismissal with prejudice of
second degree murder charges against Defendant John Marlowe Davidson as a
sanction for multiple violations of the district court’s discovery orders, rules, and the
State’s constitutional pretrial obligations. The State focuses its appeal exclusively on the
final violation by the State: what the district court found was the intentional, reckless, or
grossly negligent “loss” of a surveillance video that would have provided irreplaceable
material evidence in support of Defendant’s claim that he acted in self-defense. The
State argues that its loss of this evidence must be addressed by one of the two
remedies suggested by our Supreme Court in State v. Chouinard when evidence is
inadvertently lost prior to trial. 1981-NMSC-096, ¶¶ 22-23,
96 N.M. 658,
634 P.2d 680.
We do not agree with the State that Chouinard limits the sanctions available to the
district court for the repeated, intentional and highly prejudicial violations of court orders,
rules, and constitutional pretrial duties by the State in this case. We, therefore, conclude
that the district court did not abuse its discretion in relying on its inherent authority to
dismiss with prejudice as a sanction in response to the prosecution’s repeated violation
of the court’s discovery orders; the prosecution’s eavesdropping on Defendant’s
privileged communications with his counsel and then failing to disclose its recordings of
these conversations; the prosecution’s failure to disclose exculpatory information, as
required by Brady v. Maryland,
373 U.S. 83 (1963); and the prosecution’s dishonesty in
an attempt to cover up this misconduct. Because the district court’s order was an
appropriate exercise of the court’s discretionary authority, we affirm.
BACKGROUND
{2} The State charged Defendant in this case with second degree murder, contrary
to NMSA 1978, Section 30-2-1(B) (1994); and shooting at or from a motor vehicle (great
bodily harm), contrary to NMSA 1978, Section 30-3-8(B) (1993). The charges arose
from an incident on August 20, 2020, which ended with Defendant fatally shooting
Justin Tapaha (Victim).
{3} Defendant claimed that he shot Victim in self-defense. In a recorded 911 call
Defendant made seconds after the shooting, Defendant told the dispatcher he had
stopped to talk to a man who he thought he knew. The man, who it turned out he did not
know, reached into Defendant’s car through the open window and tried to open the
door. Defendant told the police when they arrived that Victim had almost grabbed
Defendant’s gun scaring “the hell” out of him, and that Defendant fired in self-defense.
{4} There were at least two businesses along Airport Drive, where the shooting
occurred, that had surveillance cameras that filmed the encounter. The police collected
a surveillance video from one of the businesses, Airport Auto, the day after the
shooting. The video was taken from a distance and some of the events were partly
shielded by parked cars along the curb, limiting its value. Victim’s movements could be
seen, as well as the movements of Defendant’s car, but not the faces of either
Defendant or Victim. The video shows Defendant’s car driving on Airport Drive,
Defendant slowing and stopping near where Victim was walking on the sidewalk, Victim
approaching Defendant’s car, the car darting forward and stopping, Victim approaching
the car window, and then Victim falling to the ground as the car again lurches forward a
few feet. Defendant is then shown getting out of his car and approaching Victim, who
remains on the ground, and immediately making the call to 911. Defendant paces as he
talks to the 911 dispatcher until police arrive.
{5} The video from another business, the Sundowner Mobile Home & RV Park
(Sundowner), was of much higher quality than the Airport Auto video. It was collected by
the police about a week after the shooting. The Sundowner video allowed the viewer to
zoom in on the faces of Defendant and Victim and showed a clear view of the
encounter.
{6} The police interviewed a mother and son who had driven by just before the
shooting. They told police that they heard Victim angrily and loudly yelling at Defendant.
The mother heard Victim using “angry words” despite having a hearing impairment. The
son heard Victim shouting that he was going to kill Defendant and Defendant’s mother.
{7} Following the shooting, Defendant was taken to the police station and put in an
interview room with a hidden video camera and audio recorder. Defendant, who had
been asking to be permitted to call his attorney since police arrived at the scene of the
shooting, was then given a cell phone and a number to make that call. Defendant called
his attorney multiple times. On one occasion, an officer specifically assured Defendant
and his attorney that they were not being monitored or recorded. The police, however,
had in fact monitored all of the calls and recorded most of them. A number of officers
listened to Defendant’s discussion with his attorney from the room next door.
{8} On August 27, 2020, a week after the shooting, a pretrial detention hearing was
held. The only recording given to Defendant’s counsel prior to that hearing was the
Airport Auto video. No transcript or recording of Defendant’s 911 call was provided,
although it is undisputed that the prosecution was aware of the call before the hearing.
No lapel video recording of Defendant’s statement to the police when they arrived on
the scene was provided, nor were the lapel videos of the interviews conducted by the
police with the mother and son who had witnessed the interchange between Defendant
and Victim just prior to the shooting disclosed, although the district attorney admitted
that these were in the hands of the police prior to the pretrial detention hearing.
{9} The State argued at the pretrial detention hearing that the Airport Auto video
showed that Defendant had been looking for someone to shoot; that the person shot
was a stranger to Defendant; and that the video showed Defendant could have driven
away, but chose to stay and shoot a stranger without any provocation. None of the
information from the 911 call and the interviews that was supportive of Defendant’s self-defense claim was brought forward at that hearing. The district court ordered that
Defendant remain in pretrial custody based on the State’s interpretation of the events on
the Airport Auto video.
{10} On December 1, 2020, new counsel for Defendant filed a motion to reconsider
Defendant’s pretrial detention, as well as a motion to compel discovery and certification
of disclosure. The defense argued that the State had intentionally failed to disclose the
contents of Defendant’s 911 call, in which Defendant explained that he had tried to get
away and his car had stalled, and that Victim was reaching for Defendant’s gun when
Defendant shot him; the police interview with the witnesses who reported that they
heard Victim loudly threatening Defendant prior to the shooting; or the lapel videos of
the twelve or more officers involved in the case, which would have included the lapel
video of Defendant’s statement to police. Defendant also alleged that they had become
aware that police had improperly listened to and recorded Defendant’s conversations
with his counsel; that the prosecutor was aware that this had happened; and that the
prosecution had failed to disclose the existence of those recordings to defense counsel.
The motion to compel discovery alleged that much of this exculpatory material and other
discoverable information in the hands of the police and the prosecutor had not been
turned over to the defense, in violation of the rules of criminal procedure, Rule 5-501(A)
NMRA, and Brady.
{11} On December 30, 2020, the district court granted Defendant’s motion to compel
discovery, ordering the production of responses to defense counsel’s discovery
requests, and reminding the prosecution that they not only have a duty to turn over all
exculpatory material, but to actively search to determine whether there is exculpatory
evidence in the State’s possession. The district court ordered all discoverable materials
turned over to the defense within seven days, and reminded the prosecution that failure
to comply with the court’s order would subject the State to sanctions including “witness
exclusion, dismissal of the case, and/or other sanctions as justice so requires.”
{12} Discovery provided following the entry of the district court’s order compelling
discovery included the police recordings of Defendant’s phone calls with his first
attorney. Depositions taken of Farmington Police Department (FPD) officers by the
defense revealed that seven or eight officers had listened to all or parts of Defendant’s
telephone calls with his counsel. The district attorney admitted in deposition testimony
that he had been present at the police station and had done nothing about the officers
eavesdropping on what Defendant had been told was a confidential telephone call with
his attorney, other than to tell the officers to stop recording. He admitted that he did not
intervene or check to ensure that the recording stopped, nor did he do anything to
prevent officers from listening to the conversations.
{13} The district attorney testified that he had not played the recordings, but admitted
he could not be sure no one in his office had listened to them. Citing extensive case law
condemning violation of a defendant’s attorney-client privilege by the prosecution, and
arguing that such misconduct impaired Defendant’s Sixth Amendment right to counsel
and to a fair trial, the defense sought dismissal of the charges.
{14} After an evidentiary hearing, the district court found that “[m]ultiple [police]
officers eavesdropped on the phone conversations Defendant . . . had with his original
attorney.” The court also found that the FPD had an official policy of recording suspects
in their interview room, “including the recording of conversations between criminal
defendants/suspects [for years].” The district court concluded that the eavesdropping by
the officers on attorney-client privileged conversations violated Defendant’s rights under
the Fourth, Fifth, and Sixth Amendments of the United States Constitution and Article II,
Sections 10, 14, 15, and 18 of the New Mexico Constitution and jeopardized
Defendant’s right to a fair trial. The district court further found that “[s]evere sanctions
[were] warranted against the State for the above[-]referenced constitutional violations of
Defendant’s [r]ights.” The court also found that information that could only have come
from Defendant’s conversations with counsel appeared in multiple police reports and
the affidavits for search warrants, and that Defendant “suffered actual prejudice by
extensive pretrial incarceration, which would have been avoided if the local [district
attorney] had promptly disclosed to the [d]efense the eavesdropping scenario.”
{15} Finding that there was no way to determine what illegally obtained information
about legal strategies and defenses may have been shared within the prosecutor’s
office, the district court considered dismissing the case with prejudice, the remedy
sought by the defense. Finding dismissal too harsh a sanction given the serious nature
of the charges, the court instead required the district attorney to withdraw from the case,
and ordered that the case would proceed with a different district attorney’s office or the
appointment of a special prosecutor. The court also suppressed the recordings of the
attorney-client conversations, and the material improperly seized from Defendant’s cell
phone, as well as all related evidence. Defendant’s motion to suppress the Airport Auto
video as a sanction was denied by the district court.
{16} Following an article about the case in the Farmington Daily Times, defense
counsel represented that he was told by two individuals, Jonathan and Cameron
Tankersley, employees at the Sundowner, that they had provided the police with video
from the Sundowner’s surveillance cameras a week after the shooting. The Sundowner
video had not been disclosed by the prosecution to Defendant, nor had the prosecution
disclosed that Jonathan Tankersley had watched the video before turning it over to
police, and was therefore a potential witness. It was undisputed that the Sundowner
video, with its zoom capabilities and better vantage point, was far superior to the Airport
Auto video, and that it revealed information about the encounter helpful to Defendant’s
claim of self-defense. 1
{17} After speaking to the Tankersleys, defense counsel filed a second motion to
dismiss the charges. In this motion, Defendant notified the district court that the defense
had discovered the existence of the Sundowner video, and alleged that the FPD had
collected the video approximately one week after the shooting incident. Defendant also
argued that the video had never been disclosed to the defense. The video had since
been recorded over by the Sundowner surveillance system and was no longer available
from the Sundowner.
{18} Defendant argued that the State had intentionally violated both the district court’s
December 30, 2020, order compelling discovery and the requirement of due process to
disclose exculpatory evidence under Brady by failing to turn over the video to the
defense. Defendant’s renewed request for the sanction of dismissal with prejudice also
relied on the previous prosecutorial misconduct in eavesdropping on Defendant’s
telephone conversations with his counsel, and failing to disclose the recordings of these
telephone calls. In response, the State claimed that the police department had never
collected the Sundowner video from the Tankersleys.
{19} The district court held an evidentiary hearing on Defendant’s second motion to
dismiss on December 14, 2021. The court first heard the testimony of Officer Gensen,
an FPD officer who testified to discovering the existence of the Sundowner video in a
conversation with the Tankersleys; to a text exchange she had with Detective Adegite,
1Jonathan Tankersley testified that he had watched the video, which was in high definition, and that he
was able to see Victim’s demeanor, mannerisms, and body movements in the moments prior to the
shooting. Mr. Tankersley stated that he could not clearly see any facial features without zooming in.
the lead detective on the case, about whether he wanted her to collect a copy of the
Sundowner video; to the detective’s positive response by text; and to the actions she
took to get the Sundowner video downloaded onto a thumb drive and bring it to the
FPD. Officer Gensen’s testimony was supported by her body camera footage, and by
screen shots of her text exchange with Detective Adegite. These texts were not
included in the police report written by Detective Adegite denying that the FPD ever had
possession of the Sundowner video.
{20} The district court next heard the testimony of the Tankersleys, who confirmed
that they had told Officer Gensen about the Sundowner video, that she had asked them
to make a copy on a thumb drive she provided, that they had done so, and that she
picked up the thumb drive and turned it over to the FPD the next day.
{21} The district court also heard the testimony of Detective Adegite, who testified that
he could not recall whether he had been contacted by Officer Gensen, or whether he
received the video. He also testified that Officer Gensen had told him that she had
never collected the Sundowner video because it did not provide “a clear vantage of the
incident.”
{22} The district court entered an order granting Defendant’s second motion to
dismiss on January 14, 2022. The court found that Detective Adegite’s claims that he
did not recall being contacted by Officer Gensen and did not receive the thumb drive
were not as credible as Officer Gensen’s testimony to the contrary. The court also found
that Detective Adegite’s supplemental police report, in which he represented that Officer
Gensen told him the Sundowner video was not from a clear vantage point and that she
did not collect it, was “seriously flawed.” The district court found that the police
department had in fact collected the Sundowner video, and the FPD had “either
intentionally disposed of the thumb drive or at a minimum recklessly or grossly
negligently lost it.”
{23} Noting that this was the third time the district court had been asked to sanction
the State for Brady or discovery violations, the court applied the framework set out in
our Supreme Court’s decision in State v. Le Mier, 2017-NMSC-017, ¶ 15,
394 P.3d 959,
and State v. Harper,
2011-NMSC-044, ¶ 19,
150 N.M. 745,
266 P.3d 25, and concluded
that the culpability of the prosecution, the prejudice to Defendant, and the absence of
effective lesser sanctions required dismissal with prejudice. The State appeals.
DISCUSSION
{24} The State argues that the district court abused its discretion in relying on its
inherent authority to dismiss this case with prejudice.
I. The District Court Was Not Restricted by Chouinard to Lesser Sanctions
{25} The State contends that, because the misconduct that immediately precipitated
the dismissal was the loss or destruction of the Sundowner video, the district court was
limited to imposing one of the two remedies for lost evidence adopted by our Supreme
Court in its decision in Chouinard, 1981-NMSC-096, ¶ 23. Those two remedies were (1)
excluding all of the evidence that the lost video might have impeached; or (2) admitting
the contents of the lost evidence through a witness, with full disclosure of the
circumstances of its loss to the jury. See
id.
{26} We do not agree with the State’s claim that the district court was restricted to
imposing one of the two Chouinard remedies for the lost evidence in this case. First,
Chouinard involved the inadvertent loss of evidence, not an intentional or bad faith loss
or destruction of evidence or a circumstance where the prejudice to the defendant
arising from the absence of the evidence denies them a fair trial. 1981-NMSC-096, ¶¶
14, 15 (finding federal court decisions refusing “to impose sanctions where the loss was
inadvertent and not deliberate or in bad faith, and there was not such prejudice to the
defendant as to deny [them] a fair trial” well-reasoned and persuasive (internal quotation
marks and citation omitted)).
{27} Our Supreme Court in Chouinard does not attempt to limit the use of sanctions,
including the sanction of dismissal with prejudice, when “[t]he [s]tate either breached
some duty or intentionally deprived the defendant of evidence,” or where material
evidence has been suppressed and “[t]he suppression of this evidence prejudiced the
defendant.” Id. ¶ 16 (internal quotation marks and citation omitted); see also id. ¶ 14
(noting that our Supreme Court “indicated that . . . sanctions should be imposed on the
[g]overnment for bad faith suppression of evidence” (internal quotation marks and
citation omitted)). The question addressed by our Supreme Court in Chouinard is posed
by the Court as follows: “Even with the best of procedures, evidence may sometimes be
lost as it was here. In such instances, what should be done?” Id. ¶ 22.
{28} The district court found the FPD and the State “profoundly culpable for the ‘loss’
of crucial objective evidence favorable to the [d]efense.” The district court also found
that the evidence is material to the defense, that “the prejudice to . . . Defendant [from
its loss] is significant,” and that “[n]o other sanction would protect the [d]ue [p]rocess
and [f]air [t]rial [r]ights of . . . Defendant.” Therefore, the remedies identified by our
Supreme Court in Chouinard are not controlling.
{29} Perhaps more importantly, the district court’s dismissal of this case is based on
repeated, intentional violations of the district court’s plain and unambiguous discovery
orders, of the disclosure requirements in our rules of criminal procedure, and of the
disclosure required by both the state and federal constitutions. The loss or destruction
of the Sundowner video was merely the final straw in the district court’s analysis of the
repeated, intentional violations by the State. The district court noted at the outset of its
order granting Defendant’s second motion to dismiss that “[t]his is the third time the
[c]ourt has been asked to sanction the State for Brady or [d]iscovery violations.” Under
these circumstances, the district court correctly applied the standards set by our
Supreme Court in Harper, 2011-NMSC-044, as modified by Le Mier,
2017-NMSC-017,
for sanctioning intentional and prejudicial violations of discovery rules and orders.
{30} The question for our review, therefore, is whether the district court abused its
discretion under Harper, 2011-NMSC-044 and Le Mier,
2017-NMSC-017, when it
dismissed this case with prejudice.
II. The Standard of Review
{31} We review a district court’s imposition of any sanction, including the ultimate
sanction of dismissal with prejudice, for an abuse of discretion. See Le Mier, 2017-
NMSC-017, ¶ 22. “An abuse of discretion occurs when the ruling is clearly against the
logic and effect of the facts and circumstances of the case.” Id. (internal quotation marks
and citation omitted). When reviewing for an abuse of discretion, we view “the
evidence—and all inferences to be draw from the evidence—in the light most favorable
to the district court’s decision.”
Id. Our Supreme Court, in Le Mier, reminds us that “the
task of a reviewing court considering a trial court’s discretionary determination is not to
second-guess the decision, but only to ensure that the trial court made a principled
exercise of its discretion.” Id. ¶ 17 (internal quotation marks and citation omitted).
III. The District Court Did Not Abuse Its Discretion in Dismissing This Case
With Prejudice
{32} Our Supreme Court addressed in Harper the circumstances under which a
district court can resort to the extreme sanction of dismissal. 2011-NMSC-044, ¶ 16.
Holding that “[e]xtreme sanctions such as dismissal are to be used only in exceptional
cases,” our Supreme Court provided three factors, which a district court must consider
before imposing such a severe sanction: (1) the culpability of the offending party, (2) the
prejudice to the opposing party, and (3) lesser sanctions. Id. ¶¶ 16, 19 (internal
quotation marks and citation omitted). Harper notes that “the refusal to comply with a
district court’s discovery order only rises to the level of exclusion [of witnesses] or
dismissal where the [s]tate’s conduct is especially culpable, such as where evidence is
unilaterally withheld by the [s]tate in bad faith, or all access to the evidence is precluded
by [s]tate intransigence.” Id. ¶ 17. Even when the State “has acted with a high degree of
culpability,” dismissal is an appropriate sanction only “where the opposing party suffered
tangible prejudice,” from missing evidence that is “important and critical to the case.” Id.
¶ 19 (internal quotation marks and citation omitted). Finally, Harper directs the district
court to consider whether a lesser sanction can be effective, urging our district courts “to
apply sanctions that affect the evidence at trial and the merits of the case as little as
possible.” Id. ¶ 16 (internal quotation marks and citation omitted).
{33} After Harper, our Supreme Court provided in Le Mier that the district court “must
evaluate the considerations identified in Harper—culpability, prejudice, and lesser
sanctions—when deciding whether to exclude a witness [or dismiss a case with
prejudice,] and must explain [its] decision . . . within the framework articulated in
Harper.” Le Mier, 2017-NMSC-017, ¶ 20. While Le Mier clarified that Harper does not
stand for the proposition that “witness exclusion [or dismissal with prejudice are] justified
only if all of the Harper considerations weigh in favor of exclusion,” Le Mier is
unequivocal in its requirement that a district court consider and address the Harper
factors on the record. Le Mier,
2017-NMSC-017, ¶ 20; see also State v. Lewis, 2018-
NMCA-019, ¶ 12,
413 P.3d 484 (“Le Mier requires the district court to not only weigh the
degree of culpability and extent of prejudice, but also explain its decision regarding
applicability of lesser sanctions on the record.”).
{34} We, therefore, review the district court’s decision dismissing this case, discussing
each of the Harper factors—as modified by Le Mier—and considering the district court’s
assessment of each, beginning with culpability. See Harper, 2011-NMSC-044, ¶ 19.
A. Culpability
{35} In Le Mier, our Supreme Court emphasized the mandatory nature of court orders,
stating that “[p]arties must obey discovery orders” and explaining that “[o]ur system of
justice would be neither orderly nor efficient” if parties were not held to comply with
those orders. 2017-NMSC-017, ¶ 24. Although a failure to obey a discovery order
always involves some culpability on the part of the disobeying party, “[t]he degree of
culpability, however, is a fact-specific inquiry for the district court to consider in
assessing sanctions against a party. It is through this consideration of degree that bad
faith or intransigence now factors into a district court’s calculation of appropriate
sanctions.” Lewis,
2018-NMCA-019, ¶ 13.
{36} This case, like Le Mier, involves multiple violations of the district court’s discovery
orders. The district court noted at the outset of its order granting Defendant’s second
motion to dismiss that the court had already been asked twice before to sanction the
State for Brady and discovery violations, and had twice imposed lesser sanctions. The
district court held on December 30, 2020, that the State had failed to comply with the
court’s discovery order and with the discovery requirements of the rules of criminal
procedure. The court entered an order compelling production of the withheld documents
within seven days, and warned the State that further violations of its discovery
obligations would result in sanctions, including, if necessary, dismissal with prejudice.
{37} When the documents were produced, Defendant discovered that the officers,
under the eye of the district attorney, had eavesdropped on confidential attorney-client
communications, and that the State had relied on those communications to obtain an
order improperly holding Defendant in pretrial detention. The State had done so without
disclosing the recordings it had made of these conversations to the defense. Although
the district court found violations of its discovery orders and of Defendant’s
constitutional right to counsel by the State, and concluded that “[s]evere sanctions are
warranted against the State for the above[-]referenced constitutional violations of
Defendant’s [r]ights,” the court hesitated to impose the ultimate sanction of dismissal.
The district court instead required the district attorney’s office to withdraw, and ordered
that the prosecution continue with substitute counsel to avoid the use of tainted
evidence derived from the eavesdropping that may have been reviewed by prosecutors.
{38} The circumstances surrounding the Sundowner video was the third time the
district court would sanction the State. The court found that the FPD had known about
the existence of the Sundowner video, and that the FPD had possession of it “from the
moment Officer Gensen got the thumb drive” of the Sundowner video a week after
Defendant’s arrest. Apart from the alleged “loss” of the thumb drive, the State failed to
disclose the Sundowner video’s existence at any time in discovery, and failed, as well,
to disclose Officer Gensen’s conversations with the Tankersleys, conversations that
would have revealed the existence of the video.
{39} As to the loss itself, the court found that “[t]he [FPD] either intentionally disposed
of the thumb drive [of the Sundowner video] or at a minimum recklessly or grossly
negligently lost it.” The district court, moreover, found that the lead detective provided a
“flawed” police report that claimed the FPD never collected the Sundowner video
because it did not contain a clear vantage of the shooting; the court noted that this
indicated either that the lead detective himself had viewed the Sundowner video or that
he was being untruthful in light of the contrary testimony of Officer Gensen, who testified
she had never looked at the video, and Jonathan Tankersley, who testified that the
Sundowner video provided an unobstructed view of the shooting.
{40} Applying the Harper factors to the entire pattern of violations of its discovery
orders, the district court characterized the violations as “continuing and egregious
[d]iscovery and Brady violations” by the State. The court found a high degree of
culpability by the State, even though the court fell short of labelling it as “bad faith.”
B. Prejudice to Defendant
{41} The district court next considered prejudice to Defendant. The court found that
the evidence on the missing thumb drive was material to Defendant’s self-defense
argument. The court found that the video evidence was material both to the subjective
fear and objective reasonable person standard for using deadly force elements of
Defendant’s self-defense claim. The district court found that, in a case where
Defendant’s guilt “is highly equivocal,” the Sundowner video “would have strengthened
tremendously his self-defense argument.”
C. Lesser Sanctions
{42} Last, the district court considered lesser sanctions. The district court had twice
imposed lesser sanctions: First in its December 30, 2020, order compelling discovery
and warning of greater sanctions if the State continued to fail to disclose relevant
evidence in its possession. Next, the district court ordered the replacement of the entire
prosecution team and suppressed evidence that had been wrongly obtained. Having
found intentional and prejudicial violations of the court’s discovery orders for the third
time in the order on appeal, the district court considered whether admitting the contents
of the thumb drive through witness testimony, and disclosing to the jury the State’s
culpable conduct in losing it, or merely excluding the Airport Auto video, the two
remedies suggested in Chouinard for lost evidence, would be a sufficient sanction. The
district court concluded that “[n]o other sanction would protect the [d]ue [p]rocess and
[f]air [t]rial [r]ights of . . . Defendant” given the highly material nature of the Sundowner
video and the inability to recover it for trial.
{43} We find the court’s assessment of each of the Harper and Le Mier factors to be
eminently reasonable and to be supported by substantial evidence in the record. We,
therefore, find no abuse of discretion in imposing the ultimate sanction of dismissal with
prejudice.
CONCLUSION
{44} We affirm the dismissal of this case with prejudice.
{45} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
MEGAN P. DUFFY, Judge
GERALD E. BACA, Judge
