STATE V. KLEMPT, 1996-NMCA-004, 121 N.M.
250, 910 P.2d 326 (Ct. App. 1995)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
MICHAEL EDWARD KLEMPT, Defendant. IN THE MATTER OF KYLE
HINKLE, Appellant.
COURT OF APPEALS OF NEW MEXICO
1996-NMCA-004, 121 N.M. 250, 910 P.2d 326
APPEAL FROM THE DISTRICT COURT OF LEA
COUNTY. LARRY JOHNSON, District Judge.
Certiorari not Applied for. Released
for Publication January 24, 1996. As Corrected January 31, 1996.
TOM UDALL, Attorney General, JOEL
JACOBSEN, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
C. BARRY CRUTCHFIELD, TEMPLEMAN AND
CRUTCHFIELD, Lovington, New Mexico, Attorneys for Appellant.
HARRIS L HARTZ, Judge. RUDY S. APODACA,
Chief Judge, A. JOSEPH ALARID, Judge, concur.
{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.
{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.
{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 "the 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 {*252} him may be
deemed a contempt of the court from which the subpoena issued.
{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 (N.J. Super. Ct. 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, 76 L. Ed. 375, 52 S. Ct. 252 (1932). The Court wrote that
"it 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, 24 L. Ed. 2d 183, 90 S. Ct. 223 (1969) (quoting
former 28 U.S.C. § 655), the deletion of that statutory language has not
changed federal law, which still recognizes that in a criminal trial, "a
subpoena to appear on a particular date imposes on the witness a continuing
duty to remain in attendance until excused by the court or by the government's
attorney." 2 Charles A. Wright,
Federal Practice and Procedure,
Criminal § 273, at 148 (2d ed. 1982).
{11} Our decision in
Armijo
v. Armijo, 98 N.M. 518,
650 P.2d 40 (Ct. App. 1982), supports the same
proposition. A hearing was interrupted after a witness had testified on direct
examination but had not been cross-examined. The witness was not present when
the hearing resumed several weeks later. Although the holding could be
construed narrowly to apply only to a witness who is in the course of
testifying when the proceeding is suspended, the opinion is properly read as
stating that a subpoena imposes
{*253} a
continuing duty to appear. We wrote: "Since the trial court did not excuse
the witness after the first hearing, the witness should have been present at
the later hearings . . . . The witness was still subject to the subpoena served
by plaintiff."
Id. at 520, 650 P.2d at 42.
{12} This compulsion to
attend continues even if the party obtaining the subpoena relieves the witness
from remaining at the courthouse, thus placing the witness on call.
See
Snyder; In re Ragland, 343 A.2d 558 (D.C. 1975) (construing District of
Columbia Superior Court Rules of Criminal Procedure, Rule 17(g));
see also
In re Grand Jury Witness, 835 F.2d 437 (2d Cir. 1987),
cert. denied,
485 U.S. 1039, 99 L. Ed. 2d 917, 108 S. Ct. 1602 (1988). In
Snyder the
subpoena told the witness to appear on February 20. The United States Attorney
agreed that the witness could remain on call. The witness received a telegram
directing him to appear in court on April 9, but he failed to appear. The
appeals court affirmed a ruling that the witness was guilty of contempt.
Ragland
similarly involved an on-call subpoena. Fiecause our Rule 1-045(A) tracks the
language of Federal Rule of Criminal Procedure, Rule 17(g), judicial
interpretation of the federal rule has strong persuasive force.
{13} The common-sense,
practical concerns that support recognition of on-call subpoenas have also led
state jurisdictions to adopt the same view.
See In re Tarpley, 293 Ala.
137, 300 So. 2d 409, 410-12 (Ala. 1974);
In re Grand Jury Subpoenas, 363
So. 2d 651 (La. 1978);
Reiman v. Breslin; State v. Tatum, 74 Wash. App.
81, 871 P.2d 1123 (Wash. Ct. App.),
review denied, 125 Wash. 2d 1002,
886 P.2d 1134 (1994). We note that if the arrangement for an on-call subpoena
becomes unreasonable or oppressive, the witness may seek a protective order.
See
Snyder, 413 F.2d at 290;
cf. SCRA 1-045(B) (protective order for
subpoena duces tecum).
{14} The only case to
come to our attention that states a contrary view is
O'Brien v. Walker,
49 Ill. App. 3d 940, 364 N.E.2d 533, 539, 7 Ill. Dec. 372 (Ill. App. Ct. 1977).
Without reference to any of the decisions in other jurisdictions upon which we
rely, the opinion baldly asserts that a court order is necessary to compel the
appearance of a subpoenaed witness if the trial date is continued.
Id.
We find
O'Brien unpersuasive.
{15} The sole remaining
issue is whether the evidence was sufficient for the district court to find
beyond a reasonable doubt that Hinkle's failure to appear was "without
adequate excuse." SCRA 1-045(F). We hold that it was. The evidence would
support a determination that Hinkle received adequate notice that he should be
available for trial on September 8 and that his only reason for not appearing
was that he preferred to go on vacation rather than comply with his obligation
under the law. Such conduct is totally unacceptable from a law enforcement
officer. We affirm.
RUDY S. APODACA, Chief Judge