{ "id": 1217187, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Charlie ALLISON, Defendant-Appellant", "name_abbreviation": "State v. Allison", "decision_date": "2000-09-05", "docket_number": "No. 25,726", "first_page": "566", "last_page": "578", "citations": [ { "type": "official", "cite": "129 N.M. 566" }, { "type": "parallel", "cite": "11 P.3d 141" }, { "type": "parallel", "cite": "2000-NMSC-027" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "1998-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827374 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 39" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0338-01" ] }, { "cite": "117 N.M. 508", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552724 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "513", "parenthetical": "citations omitted" }, { "page": "259", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0508-01" ] }, { "cite": "115 N.M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725424 ], "weight": 2, "pin_cites": [ { "page": "429" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0424-01" ] }, { "cite": "118 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563591 ], "weight": 6, "pin_cites": [ { "page": "197" }, { "page": "1216" }, { "page": "197" }, { "page": "1216" }, { "page": "197" }, { "page": "1216", "parenthetical": "upholding the admission of a past recollection recorded and noting that the witnesses \"testified that they once had knowledge they no longer possessed but which they had accurately conveyed to [a detective] at the time of the incident\"" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0189-01" ] }, { "cite": "112 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720248 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "487" }, { "page": "1109" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0485-01" ] }, { "cite": "57 F.3d 993", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7414132 ], "opinion_index": 0, "case_paths": [ "/f3d/57/0993-01" ] }, { "cite": "639 S.W.2d 563", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9949566 ], "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/sw2d/639/0563-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "107 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597096 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "371", "parenthetical": "quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)" }, { "page": "785", "parenthetical": "quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0369-01" ] }, { "cite": "406 F.2d 560", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2117093 ], "weight": 2, "pin_cites": [ { "page": "687-88", "parenthetical": "concluding that there was no abuse of discretion because the defendant received the statement before he would have taken the stand and he avoided impeachment by not testifying" } ], "opinion_index": 0, "case_paths": [ "/f2d/406/0560-01" ] }, { "cite": "511 F.2d 798", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 152961, 3689158 ], "weight": 2, "pin_cites": [ { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/f2d/511/0798-01", "/us-app-dc/167/0232-01" ] }, { "cite": "610 F.2d 685", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11208 ], "weight": 2, "pin_cites": [ { "page": "688" } ], "opinion_index": 0, "case_paths": [ "/f2d/610/0685-01" ] }, { "cite": "751 So.2d 271", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11467576 ], "weight": 5, "pin_cites": [ { "page": "277-78" }, { "page": "277" }, { "page": "277-78" }, { "page": "278" }, { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/so2d/751/0271-01" ] }, { "cite": "105 N.M. 10", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599031 ], "weight": 24, "pin_cites": [ { "page": "11-12" }, { "page": "950-51" }, { "page": "14" }, { "page": "953" }, { "page": "15" }, { "page": "954" }, { "page": "15" }, { "page": "954" }, { "page": "15" }, { "page": "954" }, { "page": "15-16" }, { "page": "954-55" }, { "page": "16" }, { "page": "955" }, { "page": "16" }, { "page": "955", "parenthetical": "\"The process is far too important and the goal too dear to allow this kind of trial maneuvering.\"" }, { "page": "16" }, { "page": "955" }, { "page": "16" }, { "page": "955", "parenthetical": "concluding that the defendant did not show prejudice, and thus affirming the trial court's denial of a mistrial" }, { "page": "16" }, { "page": "955", "parenthetical": "\"The [Supreme Court of New Mexico] criticized, however, as we do today, the 'gamesmanship' inherent in this type of litigation tactic.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0010-01" ] }, { "cite": "644 So.2d 745", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7464890 ], "weight": 2, "pin_cites": [ { "page": "750" }, { "page": "750", "parenthetical": "\"We agree with the trial court that, by testifying, a defendant subjects himself [or herself] to being questioned about previous convictions. However, a discovery violation by the state presents a separate issue regarding the admissibility of the evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/644/0745-01" ] }, { "cite": "93 N.M. 95", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568662 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "103" }, { "page": "288" }, { "page": "103" }, { "page": "288", "parenthetical": "quotation marks and quoted authority omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0095-01" ] }, { "cite": "1997-NMSC-060", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18088 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 43" }, { "page": "\u00b6 44" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0346-01" ] } ], "analysis": { "cardinality": 1385, "char_count": 40522, "ocr_confidence": 0.708, "pagerank": { "raw": 9.227006132601005e-08, "percentile": 0.5103496381449266 }, "sha256": "66dcfa2a7305bd06e319f85cdc4236bd023fc25c9e3830990c3299dd0623e872", "simhash": "1:96a0d2fa5b0fd465", "word_count": 6607 }, "last_updated": "2023-07-14T18:00:16.735179+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MINZNER, C.J., BACA, FRANCHINI, and MAES, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Charlie ALLISON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSERNA, Justice.\n{1} Defendant Charlie Allison appeals his convictions for willful and deliberate first degree murder, aggravated battery, aggravated assault, conspiracy, and tampering with evidence. See Rule 12-102(A)(1) NMRA 2000 (appeals from sentence of life imprisonment taken to the Supreme Court). Defendant asserts six errors on appeal: (1) whether the trial court abused its discretion by denying his motion to grant a continuance; (2) whether the trial court erred in allowing the prosecutor to impeach him -with an unrelated arrest without first disclosing the information to the defense; (3) whether the trial court erred by admitting a tape and transcript of a witness\u2019s out-of-court statement; (4) whether prosecutorial misconduct deprived him of his right to due process and a fair trial; (5) whether Defendant\u2019s trial counsel\u2019s performance constituted ineffective assistance of counsel; and (6) whether the errors constitute cumulative error. We conclude that the prosecutor\u2019s failure to disclose Defendant\u2019s unrelated arrest and the failure of the trial court to cure the error were prejudicial, and we must therefore reverse Defendant\u2019s convictions and remand for a new trial. For guidance upon remand, we address whether the trial court erred by admitting a witness\u2019s out-of-court statement. Because we reverse on the issue of disclosure, we do not review Defendant\u2019s other contentions.\nI. Facts and Background\n{2} On July 3,1997, Defendant and Chris Trujillo drove in Defendant\u2019s ear to apartments located in Albuquerque. Defendant and Trujillo were standing on a first-floor balcony of one of these apartments when they became involved in an argument with four young men located at ground level in front of the balcony: Joseph Ortiz, Juan Ortega, Jesus Canas, and Javier Mendez. Shots were fired from the balcony at a downward angle, all from the same gun. Mendez was killed, and Canas was wounded. Defendant and Trujillo departed in Defendant\u2019s car*. Defendant admitted to changing the distinctive rims on the car in order to make the ear less recognizable after he viewed a news report which included a description of the car.\n{3} Trujillo was a member of the Barelas gang. The State introduced evidence that Defendant was also a member of the Barelas gang. Ortega testified that he, Canas, and Mendez were all members of the Juaritos gang; Mendez stated, \u201cJuaritos,\u201d prior to being shot. Ortega stated that he, Mendez, and Canas walked together to the apartments, unarmed, and he identified Defendant as one of the men standing on the balcony. He testified that he heard Defendant tell Mendez to leave the area and that Defendant pulled out a gun and fired two or three times at Mendez. Ortega testified that Trujillo took the gun and shot at Ortega and Canas. He stated that Trujillo and Defendant drove away in Defendant\u2019s car.\n{4} Ortiz, Defendant\u2019s cousin, was a former member of the Barelas gang; he was expelled from the gang several years prior to the shooting and warned that he was unwelcome in the area. He testified that he planned to meet Mendez at the apartments on the day of the shooting. The State claims that the record supports an inference that the argument began when the Barelas gang members on the balcony challenged Ortiz\u2019s right to be in the neighborhood. Ortiz stated that he heard an argument and gunshots, and then he saw Mendez on the ground. He could not recall various details regarding the incident; as a result, the prosecutor played a tape of an interview between Ortiz and Detective Shawn. Ortiz told the detective that he saw \u201ctwo guys,\u201d that \u201cthey looked straight at me, and they told me, \u2018What are you doing here,\u2019 \u201d and, \u201c Tou don\u2019t belong here.\u2019 \u201d During the interview, Ortiz said that he and Mendez exchanged a few words with the men on the balcony, and then described the shooting. Ortiz said that he didn\u2019t recognize them, but he did describe a \u201cbig guy\u201d wearing black jeans and a black t-shirt, presumably Defendant, and a shorter \u201cskinny guy\u201d wearing jeans and a striped shirt, presumably Trujillo.. According to Ortiz, the smaller man had the gun. Although the larger man asked for the gun, the smaller man did not want to give it to him. Ortiz recounted that the smaller man said, \u201c \u2018Oh, you guys think I\u2019m joking,\u2019 \u201d and then began shooting. Ortiz told the detective that Mendez saw the gun and said, \u201cWell no, no, you don\u2019t have to do that, you don\u2019t have to do that.\u201d\n{5} Defendant admitted that he was standing next to Trujillo on the balcony when the shooting occurred, that he drove both to and from the apartments with Trujillo, and that he changed the appearance of the ear in order to make it less recognizable. However, Defendant claimed at trial that he was not a gang member, that he was not involved with the shooting, and that he altered the appearance of the car because he feared gang retaliation.\nII. Discussion\nA. Failure to Disclose Defendant\u2019s Unrelated Arrest\n{6} Defendant argues that the prosecutor intentionally failed to disclose an arrest report regarding Defendant which occurred almost one year before trial and approximately six months after the shooting. Defendant was arrested in January of 1998 for using a false name during a traffic stop. The prosecutor conceded that he received the report before Defendant began testifying, yet chose not to disclose it to defense counsel or bring it to the attention of the trial court because he believed that he was under no duty to do so.\nWhen evidence is disclosed for the first time during trial, this Court must consider the following factors to determine whether the error is reversible: (1) whether the State breached some duty or intentionally deprived the defendant of evidence; (2) whether the improperly non-disclosed evidence was material; (3) whether the nondisclosure of the evidence prejudiced the defendant; and (4) whether the trial court cured the failure to timely disclose the evidence.\nState v. Mora, 1997-NMSC-060, \u00b6 43, 124 N.M. 346, 950 P.2d 789.\n1. Duty to Disclose\n{7} The first question is whether the State breached a duty or intentionally deprived Defendant of evidence. Defendant argues that the State was required to disclose any statement by Defendant known to it as well as any prior criminal record under Rule 5-501 (A) NMRA 2000. Rule 5-50RA) provides that\nthe state shall disclose or make available to the defendant:\n(1) any statement made by the defendant ... within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney;\n(2) the defendant\u2019s prior criminal record, if any, as is then available to the state;\n(3) any books, papers, documents ... 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;\nRule 5-505(A) NMRA 2000 provides:\nIf, subsequent to compliance with Rule 5-501 ... and prior to or during trial, a party discovers additional material or witnesses which he [or she] would have been under a duty to produce or disclose at the time of such previous compliance if it were then known to the party, he [or she] shall promptly give written notice to the other party or the party\u2019s attorney of the existence of the additional material or witnesses.\n{8} The State argues that the context of Rule 5-501(A)(2), which requires the State to disclose a defendant\u2019s prior criminal record, supports the notion that \u201cprior\u201d refers to the time preceding the arrest on the particular charge at issue; thus, because Defendant\u2019s undisclosed arrest occurred after his arrest for the crimes in the present case, the State believes it is under no obligation to inform defense counsel. The State argues that any continuing duty only relates back to events occurring prior to the time of the initial disclosure but not known to the prosecutor at that time. We disagree. To limit the duty to a criminal record prior to the arrest on the charge at issue arbitrarily restricts Rule 5-501(A)(2). Cf. Standards for Crim. Just.: Discovery and Trial by Jury \u00a7 11-2.1(a) commentary at 29 (1993) (commentary completed 1995) (noting that disclosure of prior convictions or pending charges \u201cenables defense counsel effectively to advise the defendant whether to plead guilty, and whether to testify at any trial\u201d and \u201cputs the defense on notice of any need to move to restrict the use of prior convictions for impeachment purposes\u201d).\n{9} \u201cThe purpose of discovery in a criminal case, indeed the purpose of a trial itself, is to ascertain the truth.\u201d State v. Manus, 93 N.M. 95, 103, 597 P.2d 280, 288 (1979).\nThe articles regulating discovery are intended to eliminate unwarranted prejudice which could arise from surprise testimony. Discovery procedures enable the defendant to properly assess the strength of the state\u2019s ease against him [or her] in order to prepare his [or her] defense. If a defendant is lulled into a misapprehension of the strength of the state\u2019s case by the failure to fully disclose, such prejudice may constitute reversible error.\nState v. Selvage, 644 So.2d 745, 750 (La.Ct.App.1994) (concluding that, because defense counsel was aware of the possibility of the defendant\u2019s prior convictions, defense counsel\u2019s advice regarding the defendant testifying would not have been different even if fully informed by the prosecution). This rationale would logically apply whenever the arrest occurred if the prosecutor actually possessed the information, as is the situation in the case before the Court.\n{10} Further, the State does not address Defendant\u2019s contention that the prosecution must disclose any statement by a defendant which is known to the district attorney under Rule 5-501(A)(l). The allegation that Defendant lied to a police officer regarding his identity was a statement known by the district attorney, contained in the arrest report. We conclude that the statement was subject to disclosure.\n{11} Additionally, Rule 5-501(A)(3) requires the prosecutor to disclose any documents which the prosecutor intends to use as evidence at trial. We believe that the record supports an inference that the prosecutor intended to use the arrest report to impeach Defendant regardless of his testimony on direct examination concerning the lack of any other arrests. On direct examination, Defendant\u2019s attorney asked him if he had \u201cever been arrested prior to this,\u201d to which Defendant responded, \u201cI have never been arrested, not in juvenile offenses, not for adult offenses.\u201d On cross-examination, the prosecutor followed up on the questions on direct regarding other arrests. The prosecutor asked whether the arrest for the present ease was \u201cthe only time [Defendant had] ever been arrested,\u201d to which Defendant answered affirmatively. The prosecutor then raised a new topic by asking Defendant the following series of questions:\nQ. Have you ever lied about your name?\nA. No.\nQ. Never once?\nA. No, none that I remember.\nQ. You never lied about who you are?\nA. No.\nQ. Charlie Allison never said I\u2019m somebody else?\nA. No.\nRegardless of Defendant\u2019s lies at trial regarding other arrests, the allegation that Defendant lied to a police officer about his identity would have been admissible under Rule 11 \u2014 608(B) NMRA 2000 as a specific instance of conduct which demonstrates untruthfulness. We believe that this line of questioning concerning Defendant\u2019s lie to the police officer about his identity, which went beyond the issue of whether Defendant had other arrests, demonstrates an intent on the part of the prosecutor to use the evidence at the time the prosecutor became aware of the arrest report.\n{12} In State v. Clark, 105 N.M. 10, 11-12, 727 P.2d 949, 950-51 (Ct.App.1986), a defendant appealed his conviction of receipt of stolen property. Following a hearing, the trial court allowed the prosecutor to cross-examine the defendant regarding the fact of the defendant\u2019s prior forgery conviction pursuant to Rule 11-609 NMRA 2000 (impeachment by evidence of conviction of a crime), if the defendant testified. Clark, 105 N.M. at 14, 727 P.2d at 953. During direct examination, defense counsel elicited the fact of the forgery conviction from the defendant; during cross-examination, the prosecutor questioned the defendant as to whether he altered a driver\u2019s license in order to carry out the forgeries. Id. Defense counsel moved for a mistrial because of the prosecutor\u2019s intentional failure to disclose the information about the altered license to the defendant, but the trial court denied the motion. Id. at 15, 727 P.2d at 954. The prosecutor obtained the license alteration information from the investigatory report of the prior forgery arrest, which had been attached to the judgment and sentence for the prior forgery conviction; the prosecutor disclosed the judgment and sentence to defense counsel but withheld the investigatory report. Id. The Court of Appeals noted,\nNotwithstanding that the facts surrounding the altered license would be inadmissible as an underlying circumstance of a prior conviction, those same facts are admissible under [Rule 11-608(B) ], as a specific instance of conduct which is probative of truthfulness.\nClark, 105 N.M. at 15, 727 P.2d at 954. The defendant argued that the prosecutor had a duty to disclose the license alteration information based on Rule 5-501(A). Clark, 105 N.M. at 15, 727 P.2d at 954. In Ciarle, the State argued \u201cthat because the prosecutor intended to use the information to impeach defendant\u2019s credibility, the [investigatory] report is somehow not a statement or document required to be disclosed by the rule.\u201d Id. at 15-16, 727 P.2d at 954-55. The Court of Appeals rejected this argument and held that \u201c[e]vidence which the state intends to use at trial must be disclosed,\u201d and that \u201c[t]he state must also disclose items which are material to the preparation of the defense.\u201d Id. at 16, 727 P.2d at 955. We agree. \u201c[T]he primary function of the disclosure of the criminal record relates to potential impeachment.\u201d 4 Wayne R. LaFave et al., Criminal Procedure \u00a7 20.3(e), at 860 (2d.ed.1999).\n{13} In State v. Milto, 751 So.2d 271, 277-78 (La.Ct.App.1999), the prosecutor gave the defense counsel a copy of the defendant\u2019s rap sheet which included numerous arrests but did not include the defendant\u2019s arrest or conviction for resisting arrest. Id. at 277. The Louisiana court rejected the state\u2019s arguments that defense counsel had access to the records and that the defendant was clearly aware of the conviction himself. Id. at 277-78. In the present case, the State also emphatically relates that Defendant was aware of his arrest. \u201cThese arguments do not address the fact that the prosecutor was clearly in possession of the information prior to his cross-examination of the defendant and had a [continuing] duty to disclose the conviction as soon as he became aware of it.\u201d Id. at 278. Indeed, the State\u2019s argument that Defendant\u2019s awareness of the arrest relieves any discovery violation would frustrate the purposes of Rule 5-501(A)(2). A criminal defendant, having been personally subjected to police custody, will always be aware of prior arrests. A defendant, however, might not recall a particular arrest or be aware of the significance of an arrest to impeachment through cross-examination.\n{14} Defendant analogizes his situation with cases in which a defendant is impeached with his oi\u2019 her own statement regarding the matter upon which the defendant is accused. Although the State distinguishes these cases without discussion or authority, we believe that they are similar to the present one in that the defendants are aware of their own statements. The actions of the prosecutor and trial court are at issue, not whether Defendant knew or should have known of his own arrest or statement. The discussion in United States v. Sukumolachan, 610 F.2d 685 (9th Cir.1980), is instructive:\n[Defendant] argues that the appropriate remedy for such a discovery violation is a new trial, citing United States v. Lewis, 511 F.2d 798 (D.C.Cir.1975), and United States v. Padrone, 406 F.2d 560 (2d Cir.1969). In these eases convictions were reversed and remanded for new trials where incriminating statements were not disclosed until after defendants had taken the stand, and were then used for impeachment. Had the defendants in those cases known of the statements, they might have chosen not to testify and thus to avoid impeachment. A new trial was required because there was no other way to correct the prejudice resulting from the failure to disclose until after the defendants had taken the stand and exposed themselves to impeachment.\nId. at 687-88 (concluding that there was no abuse of discretion because the defendant received the statement before he would have taken the stand and he avoided impeachment by not testifying).\n{15} The trial court also believed that the prosecutor intentionally kept the information from defense counsel, stating, \u201cYou held onto this because you knew it would be thunder, right?\u201d \u201cIn a criminal case, the district attorney should not hesitate to show his [or her] entire file to the defendant. It is not the primary duty of the district attorney to convict a defendant. It is his [or her] primary duty to see that the defendant has a fair trial, that justice is done.\u201d Manus, 93 N.M. at 103, 597 P.2d at 288 (quotation marks and quoted authority omitted); Clark, 105 N.M. at 16, 727 P.2d at 955 (\u201cThe process is far too important and the goal too dear to allow this kind of trial maneuvering.\u201d).\n{16} We conclude that the prosecutor had a duty to disclose the arrest report to defense counsel before Defendant testified. Rule 5-501(A) creates a duty on the part of the prosecutor to disclose any statement by Defendant, his prior criminal record, and any document which is material to the defense or that the State intends to use as evidence at trial. Rule 5-505(A), as a continuing duty to disclose, obligated the prosecutor to disclose the arrest report to defense counsel when he became aware of it and intended to use it at trial.\n2. Materiality of the Arrest Report\n{17} The second Mora factor is whether the improperly non-diselosed evidence was material. \u201cWhether evidence is material depends on \u2018if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A \u2018reasonable probability\u2019 is a probability sufficient to undermine confidence in the outcome.\u2019\u201d State v. Fero, 107 N.M. 369, 371, 758 P.2d 783, 785 (1988) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The State argues that \u201cproof that Defendant lied on the stand tended to resolve, not create, doubts about his guilt. Because it bolstered rather than undermined confidence in the outcome of Defendant\u2019s trial, it was not material in the operative sense of that word.\u201d However, this assertion supports the importance of the information to Defendant, and the impact of the prosecutor\u2019s tactic on the jury, even though the evidence is not exculpatory. In Clark, the Court of Appeals rejected a similar prosecution argument that this type of information is not material:\nAs to the assertion that the [investigatory] report was not material to the defense, the state offers no authority for the proposition that information that would certainly impact a defense counsel\u2019s tactical trial decisions is not material to the defense. Receipt of the report would clearly affect counsel\u2019s decisions on further suppression motions; on whether defendant should testify; on the preparation of defendant for cross-examination; and on the extent of information elicited by defense counsel on direct.\nClark, 105 N.M. at 16, 727 P.2d at 955. We agree. We conclude that the information regarding Defendant\u2019s prior arrest was material to the defense.\n3. Prejudice\n{18} The third factor is whether Defendant was prejudiced by the prosecutor\u2019s failure to disclose his arrest. In both Clark and Milto, the appellate courts, although concluding that there was a discovery violation, affirmed the convictions at issue because the discovery violation did not cause prejudice to the defendants. See Clark, 105 N.M. at 16, 727 P.2d at 955 (concluding that the defendant did not show prejudice, and thus affirming the trial court\u2019s denial of a mistrial); Milto, 751 So.2d at 278 (concluding that because of the defendant\u2019s extensive criminal record and defense counsel\u2019s awareness of it, no actual prejudice resulted, stating that \u201cthere is little support for the concept that the advice of counsel as to whether or not to testify would have been different had he been aware of one additional misdemeanor conviction\u201d). Here, however, defense counsel was attempting to portray Defendant as an individual without any criminal record, and had counsel been aware of Defendant\u2019s arrest, he may have altered his strategy. Defendant argues that the disclosure of his prior arrest prejudiced him greatly because his credibility was critical to his defense. He asserts that the disclosure was devastating both at the time of cross-examination and when the prosecutor referred to it in closing arguments. The State argues that \u201c[t]he question before this Court is whether loss of the ability to lie on the stand without having one\u2019s lies exposed constitutes prejudice for purposes of the Mora test.\u201d We reject this characterization; had defense counsel been aware of the arrest, he may have chosen not to have Defendant testify or may have questioned him differently on direct, and the prosecutor\u2019s intentional actions prevented that opportunity. Cf. State v. Wells, 639 S.W.2d 563, 566 (Mo.1982) (en banc) (\u201cThe state cannot logically contend that it was unaware this information [regarding contradictory statements by a state witness] would be meaningful to appellant\u2019s counsel. By withholding disclosure until its opening statement at trial, the state achieved the very result the discovery rules were designed to prevent \u2014 surprise and deception. The discovery rules seek to foster informed pleas, expedited trials, a minimum of surprise, and the opportunity for effective cross-examination.\u201d); Sukumolachan, 610 F.2d at 688 (noting that \u201cthe court denied appellant the opportunity to testify without impeachment\u201d because the evidence, although excluded from the government\u2019s ease in chief, would have been admissible for impeachment had the defendant taken the stand).\n{19} The prosecutor used the arrest both in cross-examination in order to impeach Defendant and in closing in order to characterize Defendant as a \u201cliar,\u201d supporting Defendant\u2019s claim that he was prejudiced by the prosecutor\u2019s failure to disclose the arrest. The prosecutor, in closing argument, stated:\nThis is a man that would lie about his own name in January of 1998, a man who would lie about his own name and say my name is Michael Barns when he was stopped driving a car that didn\u2019t have a license plate on it. If you think that he\u2019ll lie about his name because of a stop with no license plate, do you think he would lie about what happened on July 3d in front of 1200 Coal, Southwest? You bet, you bet you he would lie, big time.\nCf. United States v. Camargo-Vergara, 57 F.3d 993, 999 & n. 5 (11th Cir.1995) (concluding that the prejudicial impact of the government\u2019s failure to disclose defendant\u2019s statement was emphasized by prosecutor\u2019s reference to it in closing argument). Thus, the prosecutor was using the undisclosed evidence not merely to counter Defendant\u2019s testimony regarding other arrests, but instead as a specific instance of conduct to demonstrate untruthfulness, to assert that Defendant would lie regarding the murder as he lied to the police officer. We conclude that Defendant was prejudiced by the prosecutor\u2019s failure to disclose the arrest report.\n4. Trial Court\u2019s Duty to Cure\n{20} \u201cIn determining prejudice to a defendant where the state initially deprives defendant of the evidence but later produces the evidence, the reviewing court should consider whether the failure to timely disclose the evidence was cured by the trial court.\u201d Mora, 124 N.M. 346, 950 P.2d 789, 1997-NMSC-060, \u00b6 44 (quotation marks and quoted authority omitted). The trial court granted defense counsel\u2019s motion to continue the case until the following morning, but denied Defendant\u2019s motion for a mistrial. The trial court judge noted that the prosecutor\u2019s actions were \u201cinappropriate:\u201d\nThis is cross-examination material of the Defendant in a murder trial and it\u2019s my belief that you should not walk the ethical edge in something as important as a murder trial; that you should be as clean and above board as you possibly can in fear that you are going to lose a good solid conviction based upon something you didn\u2019t have to do.\nThe judge believed that he had \u201cfashioned what [he] perceived to be a fair remedy at the time.\u201d However, merely continuing the case and excluding the circumstances surrounding the arrest is an inadequate cure for the prosecutor\u2019s failure to disclose the evidence to Defendant, especially considering the manner in which the prosecutor used the information in closing.\n{21} The trial judge could have cured the error but did not do so, apparently because of his feelings regarding Defendant\u2019s testimony. Both the trial court and the State focused on Defendant\u2019s possible lie during direct, and his further lies on cross-examination, asserting that he opened the door to the subject of his prior arrests. As discussed above, the prosecutor\u2019s use of the information went beyond Defendant\u2019s testimony on direct examination by inquiring into the allegation that Defendant lied about his identity. But even assuming Defendant lied regarding his other arrest, the question is not whether the other arrest and allegation about Defendant\u2019s identity were otherwise admissible; the proper question is, instead, whether the prosecutor should have disclosed the arrest report to defense counsel as soon as he was aware of it and planned to use the information at trial. See Selvage, 644 So.2d at 750 (\u201cWe agree with the trial court that, by testifying, a defendant subjects himself [or herself] to being questioned about previous convictions. However, a discovery violation by the state presents a separate issue regarding the admissibility of the evidence.\u201d) (citation omitted).\n{22} After the prosecutor questioned Defendant about whether he had other arrests and whether Defendant ever lied to another about his identity, the prosecutor asked to approach and show the arrest report to Defendant in order to refresh his recollection, asking him to identify himself in the photograph and to state when the photograph was taken. Defendant responded, \u201cI believe it was ... when they booked me into the jail.\u201d The prosecutor continued with some questions regarding when the picture was taken and how his hair appeared in the photograph. During a bench conference regarding the length of Defendant\u2019s hair, the trial court finally asked, \u2018Was he arrested in 1998 for something?\u201d The prosecutor responded, \u201cFor concealing ID.\u201d Defense counsel objected, and the court asked if the report had been disclosed to defense counsel. After the bench conference ended, the court continued the case until the following morning.\n{23} At this stage in the case, little information regarding the arrest had gotten before the jury. It seems that the extreme remedy of a mistrial was not needed to cure the failure to disclose. In order to cure the error, the trial court could have excluded any further information or reference to the arrest. Instead, the court concluded that the prosecutor should have disclosed the information \u201cas a matter of form\u201d but was not under any duty to do so. The court, mistakenly referring to \u201c[Rule 5-] 505,\u201d apparently distinguished between a duty to disclose \u201cpriors\u201d and a duty to disclose \u201ca subsequent arrest that happened after the alleged incident;\u201d however, as previously mentioned, Rule 5-505 implicates a contim\u00f1ng duty to disclose. The judge stated that Defendant, who \u201ctook the stand yesterday and lied,\u201d did something much more \u201csevere\u201d than the prosecutor and that he would \u201cnot do anything at this point to protect him from his lies.\u201d The trial court judge appears to have assumed that defense counsel was not aware of the arrest, stating that \u201c[cjertainly if you had known about this, you would have asked the question more carefully I think, but your client went way out on a limb,\u201d and that \u201cit\u2019s also poor form for your client not to tell you about that stuff before he takes the stand.\u201d The court then decided that the circumstances surrounding the stop and arrest would not be allowed in, but that the prosecutor would be allowed to ask Defendant about the arrest and about giving a false name.\n{24} The prosecutor again asked about the other arrest:\nQ. Now, you testified yesterday that you had never ever been arrested other than in connection with this case, this shooting; is that right?\nA. I thought that you were talking about\u2014\nQ. Could you answer that question? You did say that, didn\u2019t you?\nA. Yes.\nThe prosecutor questioned Defendant as to whether he gave a false name to the police officer, the details of the actual arrest, and whether he told the officer that he had a driver\u2019s license under the false name.\n{25} Under the Mora test, we conclude that Defendant is entitled to a new trial. The prosecutor has a duty to disclose this type of information to the defense; the prosecutor intentionally kept this information from defense counsel in order to impeach Defendant. See Clark, 105 N.M. at 16, 727 P.2d at 955 (\u201cThe [Supreme Court of New Mexico] criticized, however, as we do today, the \u2018gamesmanship\u2019 inherent in this type of litigation tactic.\u201d). The information was material to Defendant\u2019s case. The knowledge of the arrest may very well have affected defense counsel\u2019s decision to question Defendant regarding his criminal record or even to advise Defendant to testify. Finally, the trial court did not adequately cure the error.\n{26} The State\u2019s ease centered on the issue of credibility. The State presented eyewitness testimony regarding the incident, but the testimony differed as to whether Defendant or Trujillo fired the gun. Ortega testified that Defendant fired shots towards them and then Trujillo took the gun and continued firing, while Ortiz stated that Trujillo fired shots and Defendant attempted and failed to get the gun from Trujillo. Either scenario supports Defendant\u2019s liability, whether as the principal or the accomplice. However, given the inconsistent versions of the incident by the State\u2019s witnesses and Defendant\u2019s denial of involvement in the shooting, the jury\u2019s assessment of Defendant\u2019s credibility was critical to this ease. Cf. Lewis, 511 F.2d at 803 (\u201cAlthough the government presented a strong case even without the use of the statement, we cannot say that the error was harmless or did not prejudice Lewis, as use of the statement not only impeached Lewis\u2019s credibility in general, but undermined a significant element in his defense \u2014 namely that he had not been addicted at the time of his arrest.\u201d). The State was able to undermine Defendant\u2019s credibility through the use of non-disclosed information. We conclude that there is a reasonable possibility that the State\u2019s impeachment of Defendant and use of the undisclosed arrest in closing argument contributed to the jury\u2019s verdict. Cf. Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991).\nB. Admission of the Tape and Transcript\n{27} The State called Ortiz as a witness to the shooting, and after Ortiz stated that he could not recall particular details of the crime, the prosecutor played an audio tape of Ortiz\u2019s July 3rd statement for the jury and placed the transcript of the tape into evidence. The prosecutor offered the tape as a prior recollection recorded under Rule 11-803(E) NMRA 2000, to which defense counsel properly objected. Noting that defense counsel did not object to the tape as a prior consistent statement, Defendant argues on appeal that Ortiz\u2019s earlier statement was inconsistent with his in-court testimony and thus inadmissible as a prior consistent statement under Rule ll-801(D)(l)(b) NMRA 2000. However, the trial court did not admit the evidence under Rule 11-801. The court admitted the evidence under Rule 11-803(E) and under Rule 11-803(X) (providing an exception to the hearsay rule for \u201c[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness\u201d). The court found \u201cthat the circumstances of the original statement, the proximity in time to the shooting itself, all are indicia of reliability in that statement.\u201d\n{28} As the State notes, Defendant\u2019s argument regarding whether he may assert on appeal that Rule 11-801 prohibits admission of this evidence in spite of the fact that it was admitted by the trial court under Rule 11-803 was addressed in State v. Padilla, 118 N.M. 189, 197, 879 P.2d 1208, 1216 (Ct.App.1994). In Padilla, the Court of Appeals held that the prior statements were properly admitted under Rule 11-803(E) and stated:\nDefendants argue on appeal that [the witness\u2019s] testimony is not covered by [Rule] 11 \u2014 801(D)(1)(b). We see no error in the admission of this testimony since, as we have discussed, the evidence is admissible under [Rule] 11-803(E). See State v. Mata Y Rivera, 115 N.M. 424, 429, 853 P.2d 126, 131 (Ct.App.[1993]) (\u201c[Evidence admissible for one purpose is not to be excluded because it is inadmissible for another purpose.\u201d).\nPadilla, 118 N.M. at 197, 879 P.2d at 1216. Further, the trial court judge did not admit the evidence under Rule 11 \u2014 801(D)(1), noting that \u201cI\u2019m not admitting it as a prior inconsistent statement.\u201d Thus, Defendant\u2019s argument regarding Rule 11 \u2014 801(D)(1)(b) is both misplaced and unpersuasive.\n{29} The State asserts that Defendant has waived any argument regarding Rule 11-803. Although Defendant argues in his reply brief that he \u201cclearly established in his opening brief that the trial court erred in admitting Mr. Ortiz\u2019s prior statement as a recorded recollection because it lacked an adequate foundation,\u201d Defendant, in his brief in chief, merely stated that the evidence was inadmissible under Rule 11-803(E), without argument or citation to any ease law. However, Defendant makes a cursory argument in his reply brief, relying on Padilla.\n{30} Under Rule 11-803(E),\nA memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him [or her] to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness\u2019s memory and to reflect that knowledge correctly.\nOrtiz appeared to deny that the information in his statement to Detective Shawn regarding people on the balcony was correct: \u201cYes, I read the statement and I said I did see two guys, but I don\u2019t know why I said it. I guess I said it out of scaredness [sic] or something. But I didn\u2019t see nobody.\u201d Ortiz, when confronted with his earlier statements regarding descriptions of the individuals on the balcony, stated that he didn\u2019t recall them and repeatedly said, \u201cI must have said it because it\u2019s on the tape, but I don\u2019t remember.\u201d Because it appears that the witness was denying the information from the tape, the trial court erred in admitting the evidence under Rule 11-803(E). See Padilla, 118 N.M. at 197, 879 P.2d at 1216 (upholding the admission of a past recollection recorded and noting that the witnesses \u201ctestified that they once had knowledge they no longer possessed but which they had accurately conveyed to [a detective] at the time of the incident\u201d) (emphasis added); see also 5 Jack B. Weinstein & Margaret A. Berger, Weinstein\u2019s Federal Evidence \u00a7 803.10[4][c], at 803-52 to -53 (Joseph M. McLaughlin ed., 2d ed. 2000) (\u201c[T]he witness must testify either that the witness recalls having made an accurate memorandum or that, though the witness now does not recollect his or her state of mind when making the record, the witness would not have made it unless it were correct.\u201d). However, the trial court also found the evidence admissible under Rule 11-803(X) and Defendant fails to challenge this basis of the trial court\u2019s ruling.\nWe remind counsel that we are not required to do their research, and that this Court will not review issues raised in appellate briefs that are unsupported by cited authority. When a criminal conviction is being challenged, counsel should properly present this [C]ourt with the issues, arguments, and proper authority. Mere reference in a eonclusory statement will not suffice and is in violation of our rules of appellate procedure.\nState v. Clifford, 117 N.M. 508, 513, 873 P.2d 254, 259 (1994) (citations omitted).\n{31} The trial court has discretion regarding the admissibility of evidence, and this Court will not disturb the trial court\u2019s ruling absent an abuse of that discretion. See State v. Brown, 1998-NMSC-037, \u00b6 32, 126 N.M. 338, 969 P.2d 313. We must conclude that the trial court\u2019s decision to admit testimony was obviously erroneous, arbitrary, or unwarranted in order to find an abuse of discretion. Brown, 126 N.M. 338, 969 P.2d 313, 1998-NMSC-037, \u00b6 39. Because Defendant has not advanced persuasive arguments on this issue, and in fact failed to address all grounds upon which the trial court admitted the evidence, he has not demonstrated that the trial court abused its discretion by admitting the audio tape and transcript.\nIII. Conclusion\n{32} We conclude that the trial court did not abuse its discretion by admitting the audio tape and transcript of Ortiz\u2019s statement. We conclude that Rule 5-501(A) creates a duty for the prosecutor to disclose any statement by Defendant, Defendant\u2019s prior criminal record, and material which the State intends to use as evidence at trial. Defendant\u2019s arguments that this information would have affected his decisions regarding trial strategy are persuasive. Further, the prosecutor\u2019s use of this information during closing to reason that a person who \u201cwould lie about his name because of a stop with no license plate\u201d would lie regarding the crimes at issue supports Defendant\u2019s assertion that he suffered prejudice as a result of the prosecutor\u2019s failure to disclose the evidence. Finally, the trial court\u2019s grant of a continuance was an inadequate cure under the facts of this case. For these reasons, we reverse Defendant\u2019s convictions and remand to the trial court for further proceedings consistent with this opinion.\n{33} IT IS SO ORDERED.\nMINZNER, C.J., BACA, FRANCHINI, and MAES, JJ., concur.\n. The State asserts that Defendant relies on cases involving exculpatory Brady material, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by which a duty to disclose arises from the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Rule 5 \u2014 501 (A)(6) specifically addresses a prosecutor\u2019s duty to disclose \"material evidence favorable to the defendant,\u201d see State v. Brown, 1998-NMSC-037, V 14, 126 N.M. 338, 969 P.2d 313 (discussing Rule 5-501(A)(6) in relation to a Brady claim); thus, Rule 5 \u2014 501(A)(1) to (3) create disclosure obligations beyond those required by the Due Process Clause. See Rule 5-501 committee commentary.\n. For purposes of this opinion, we need not define the exact parameters of what constitutes a \"statement\u201d which the prosecutor must disclose under Rule 5 \u2014 501(A)(1). See generally Fed. R.Crim.P. 16(a)(1)(A) (requiring disclosure of \"any relevant written or recorded statements made by the defendant,\u201d oral statements, recorded in writing, by the defendant made in response to official interrogation, and oral statements by the defendant made during an interrogation that the government intends to use at trial).", "type": "majority", "author": "SERNA, Justice." } ], "attorneys": [ "Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Enfield, LLP, Peter Sehoenburg, Albuquerque, NM, for Appellant.", "Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "11 P.3d 141\n2000-NMSC-027\nSTATE of New Mexico, Plaintiff-Appellee, v. Charlie ALLISON, Defendant-Appellant.\nNo. 25,726.\nSupreme Court of New Mexico.\nSept. 5, 2000.\nRothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Enfield, LLP, Peter Sehoenburg, Albuquerque, NM, for Appellant.\nPatricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee." }, "file_name": "0566-01", "first_page_order": 600, "last_page_order": 612 }