{1} The metropolitan court dismissed the case against Defendant after two mistrials were caused by the State’s witnesses and after a police officer, who was a key witness for both the State and Defendant, failed to appear for the third scheduled trial when the State failed to subpoena him after representing that it would do so. The State appealed to the district court, which reversed. Defendant then appealed to this Court. We reverse and remand for reinstatement of the metropolitan court order of dismissal.
BACKGROUND
{2} Officer Picchione of the Abuquerque Police Department filed a complaint in the metropolitan court on June 23, 2005, charging Defendant with battery of a household member (his father-in-law) following an incident that occurred when Defendant, who was separated from his wife, was in the process of removing some property from the former marital home. Officer Picchione wrote a report and filed the complaint after speaking with Defendant’s wife and father-in-law.
{3} A jury trial was set for November 1, 2005. The State filed a “Notice of Intent to Call Witnesses” stating it intended to call Defendant’s wife, Defendant’s father-in-law, and Officer Picchione as witnesses at the trial. The State was prepared to proceed with the trial, but Defendant moved for a continuance because a defense witness, who was not subpoenaed, was not present. The continuance was granted, and the trial was rescheduled.
{4} At the next trial setting on December 13, 2005, the State moved for a continuance because Officer Picchione was not present. Stating that he also required Officer Picchione’s presence, Defendant did not oppose the State’s motion. Upon inquiry from the metropolitan court as to whether the parties required subpoenas, Defendant said he would subpoena the defense witnesses and asked the prosecutor if he was going to have to subpoena Officer Picchione as well. The prosecutor stated, “We’ll go ahead and subpoena the officer.” The State never subpoenaed Officer Picchione.
{5} The first trial commenced on January 4, 2006. However, a mistrial was declared after the State’s first witness (Defendant’s father-in-law) violated a pretrial ruling on a motion in limine. The metropolitan court had cautioned the State to instruct its witnesses about its ruling and that a violation of the ruling would be grounds for a mistrial. The second trial commenced on January 25, 2006, and another mistrial was declared on the same basis when the State’s first witness
{6} On March 7, 2006, Defendant filed a motion to dismiss based on double jeopardy, prosecutorial misconduct, and speedy trial grounds. At the March 10, 2006 setting, the State requested a continuance, stating that Officer Picchione was not present due to a lung and throat infection and because it wanted additional time to respond to Defendant’s motion to dismiss. The metropolitan court granted the State’s request over Defendant’s objection and set a motion hearing for March 29, 2006.
{7} During the motion hearing on March 29, 2006, the metropolitan court expressed concern about the protracted course of the proceedings. There was also discussion about Officer Picehione’s illness that necessitated a continuance of the March 10, 2006 setting. The metropolitan court specifically asked, “Is he able to come to court now? Is this stale information?” In response, the prosecutor answered, “I believe that’s stale information. He couldn’t come to court on that day.” The metropolitan court said, “Alright, so this whole business of Officer Picchione — Everybody’s available for trial now?” The prosecutor represented, “Everyone’s available for trial, your honor. I’ve kept in regular contact with them and let them know, kept them informed of what’s going on.” The metropolitan court denied Defendant’s motion to dismiss. However, the court also warned, “I’m going to reset the ease for trial, and we’ll get to try it once and for all. If the State has another problem with its witnesses testifying to things they are directed not to, then I’ll dismiss it with prejudice and impose sanctions if necessary.”
{8} The ease was called for trial a third time on May 3, 2006. Officer Picchione was not present. Defense counsel asserted that Officer Picchione’s absence was damaging to the defense and made an offer of proof that aspects of his report had exculpatory value and that his testimony was required to impeach the State’s other witnesses. Defense counsel further stated that she had not subpoenaed Officer Picchione because the State had previously represented that it was going to insure his presence at the trial. Upon inquiry by the metropolitan court, the prosecutor acknowledged both the potential exculpatory value of Officer Picchione’s testimony and his prior assurances that he would procure Officer Picchione’s presence at the trial. The prosecutor then explained that he did not know until the morning of trial that Officer Picchione was at a doctor’s appointment and that efforts to contact Officer Picchione had been unsuccessful. The State asserted, nevertheless, that it was prepared to proceed to trial without Officer Picchione’s testimony.
{9} In light of Officer Picehione’s absence, Defendant moved to either suppress all evidence that might have been impeached by Officer Picchione’s testimony or to dismiss. After hearing the arguments of counsel, the metropolitan court granted Defendant’s motion and dismissed. In its final judgment, the court stated that the two prior mistrials combined with Officer Picchione’s failure to appear at the third scheduled trial, supplied the grounds for the dismissal of the proceedings.
{10} The State appealed the dismissal to the district court. See NMSA 1978, § 34-8A-6(C) (1993) (providing that in criminal actions involving “domestic violence” as defined, the metropolitan court is a court of record and that a party aggrieved by a judgment of the metropolitan court in such an action may appeal to the district court). Sitting as an appellate court, the district court concluded that the metropolitan court abused its discretion when it dismissed the State’s case and reversed. The district court gave three reasons for its conclusion: (1) it was Defendant’s duty to make sure Officer Picchione had been subpoenaed if his testimony was critical to his defense, (2) the proper remedy was to continue the trial to allow Defendant to subpoena Officer Picchione, and (3) Defendant would not have been prejudiced had the case proceeded to trial in Officer Picchione’s absence.
{11} Defendant appeals from the order of the district court. See Rule 7-703(R) NMRA (“An aggrieved party may appeal from a
STANDARD OF REVIEW
{12} The district court was sitting as an appellate court in this case. See State v. Foster,
{13} Our standard of review is identical-did the metropolitan court abuse its discretion in accordance with the foregoing standards when it ordered a dismissal of the criminal charge under its inherent authority to control the orderly and expeditious disposition of its cases?
DISCUSSION
{14} “Inherent judicial power is the power necessary to exercise the authority of the court.” In re Jade G.,
{15} As described at greater length in the background section of this opinion, the metropolitan court struggled to control the course of the proceedings in this case and to ensure the expeditious resolution of the pending charges. Only after the State repeatedly failed to control its witnesses, causing multiple mistrials and re-settings, did the metropolitan court conclude that sanctions were in order. This basic determination was not an abuse of discretion. The State also failed to abide by its representations to the metropolitan court and Defendant on Decernber
{16} The type of sanction to be imposed in any given case is essentially discretionary with the court. See United Nuclear Corp. v. Gen. Atomic Co.,
Alternative Sanctions
{17} In the course of its argument to the metropolitan court, the State suggested either that a continuance be granted or that the trial proceed in Officer Picchione’s absence. Courts are generally encouraged to consider lesser sanctions before electing dismissal. See Jackson,
{18} With respect to the requested continuance, it is noteworthy that the State’s previous failures to insure that its witnesses complied with evidentiary rulings had already caused significant delays. The metropolitan court clearly expressed its concern about this state of affairs and repeatedly warned that the trial would not be re-set to accommodate further misadventure. The State then sought a continuance because Officer Picchione, whom it said it was going to subpoena but did not, was not present for trial. Under these circumstances the metropolitan court was under no obligation to reward the State’s inaction with a continuance. See, e.g., State v. Peterson,
{19} The State’s offer to proceed to trial without Officer Piechione was likewise without merit. Defendant advised the State and the court in the course of the prior proceedings and again at the final trial setting that he needed Officer Picchione’s testimony for his defense. Defendant made an offer of proof, explaining that portions of Officer Picchione’s police report stated that he had observed no signs of domestic violence, and because Officer Picchione’s report differed in significant respects from the accounts of the State’s other witnesses, his testimony was crucial for impeachment. Even the State acknowledged the potential exculpatory value of Officer Picchione’s testimony to the defense. Therefore, proceeding to trial in Officer Picchione’s absence would have resulted in prejudice to the defense. See generally Mathis v. State,
Duty to Subpoena
{20} We conclude by addressing the State’s argument that “it was not the State’s duty to secure for the defense an apparently indispensable defense witness.” The State’s argument continues, “If Officer Piechione was a necessary defense witness, it was defense counsel’s duty to subpoena Officer Piechione regardless of the prosecutor’s assurances that Officer Piechione would be available on the date of trial.” These assertions are without merit. At the December 13, 2005 trial setting, the State moved for a continuance because Officer Piechione was not present, and Defendant did not oppose the motion because he also required Officer Picchione’s presence. The metropolitan court specifically inquired whether subpoenas were required, whereupon defense counsel stated that all witnesses required by the defense, including Officer Piechione, would be subpoenaed. However, the prosecutor specifically assured Defendant that the State would subpoena Officer Piechione, but it never did, and it apparently never told defense counsel that it did not. At the trial five months later on May 3, 2006, Officer Piechione was not present. The question is whether Defendant reasonably relied on the State’s representation. Well-settled, existing precedent provides the obvious answer.
{21} In 1953, our Supreme Court adopted the following general rule concerning stipulations:
The courts look upon stipulations with favor, and, as a rule, will enforce all stipulations of parties or their attorneys for the government of their conduct or the control of their rights in the trial of a cause or the conduct of litigation, if such stipulations are not unreasonable, not against good morals or sound public policy, are within the general scope of the case made by the pleadings, and are in such form as may be required by rule of court or statutory enactment. It is generally considered that stipulations which tend to expedite the trial should be enforced unless good cause is shown to the contrary.
S. Union Gas Co. v. Cantrell,
{22} The State’s actions and inactions resulted in protracted, unnecessary delay. The State’s actions also resulted in the unavailability of a material witness, and trial in his absence may have resulted in a denial of due process. With these concerns, the metropolitan court invoked its inherent authority to control its docket to insure that cases before it proceeded in a timely and orderly manner, and dismissed the prosecution. We conclude that the ruling of the metropolitan court was a reasonable course of action that was supported by the circumstances before it. Stated another way, the metropolitan court did not abuse its discretion. We further conclude that the district court did not correctly apply the standards to determine whether the metropolitan court abused its discretion, and it therefore erred in reversing the order of the metropolitan court. As a result of our conclusions, we need not address the remaining constitutional arguments that Defendant makes on appeal. The ruling of the district court is therefore reversed, and the case is remanded for reinstatement of the metropolitan court order of dismissal.
{23} IT IS SO ORDERED.