State v. Rivera

2010 NMCA 109, 249 P.3d 944, 149 N.M. 406
CourtNew Mexico Court of Appeals
DecidedSeptember 30, 2010
Docket29,317
StatusPublished
Cited by4 cases

This text of 2010 NMCA 109 (State v. Rivera) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rivera, 2010 NMCA 109, 249 P.3d 944, 149 N.M. 406 (N.M. Ct. App. 2010).

Opinion

OPINION

FRY, Chief Judge.

{1} Following a bench trial, Defendant Zirachuen Rivera was convicted in metropolitan court on one count of driving while intoxicated (DWI). During the trial, Christopher Mills conducted the direct examination of one of the State’s witnesses, although Mills apparently was not licensed to practice law. Following his conviction, Defendant filed a motion for a mistrial and for a new trial, arguing the fact that an unlicensed person conducted the examination violated Defendant’s right to due process. Because the metropolitan court did not rule on Defendant’s motion, it was deemed denied, and Defendant appealed to the district court, arguing both that the metropolitan court erred in denying his motion and that the State had failed to prove the constitutionality of the roadblock where Defendant was arrested. The district court concluded that Defendant failed- to show that Mills’ participation in the trial prejudiced Defendant. The court also concluded that the State had established that the roadblock was constitutional. Defendant appeals the judgment of the district court and, for the following reasons, we affirm.

BACKGROUND

{2} Defendant was stopped at a DWI checkpoint in Albuquerque, New Mexico, by Officer Donovan Olvera, an officer with the Albuquerque Police Department. During the stop, Officer Olvera noticed that Defendant had bloodshot, watery eyes, slurred speech, and a strong odor of alcohol on his breath. Defendant advised the officer that he had consumed three beers. Defendant subsequently performed poorly on a number of field sobriety tests and was subjected to a breath alcohol test, which indicated that Defendant had a breath alcohol concentration of 0.12. Defendant was arrested and charged with DWI.

{3} Defendant’s subsequent bench trial in metropolitan court took place over the course of two days. On the first day of trial, two people entered appearances on behalf of the State: Assistant District Attorney Rachel Bayless and Christopher Mills. Mills called the first witness, Sergeant Pat Apodaca, to the stand. Mills conducted the direct and redirect examination of Sergeant Apodaca, asking questions to establish the constitutionality of the roadblock at which Defendant was arrested. On the second day of trial, Assistant District Attorney Bayless and Mills again entered their appearances on behalf of the State, but Mills does not appear to have participated in the examination of any witnesses during that stage of the trial. Defendant was convicted of the charges against him and sentenced to one year of supervised probation.

{4} Following his conviction, Defendant’s trial counsel discovered that Mills was not a licensed attorney. Counsel indicated that he believed that Mills was a law student at the time of trial. As a result of the discovery that Mills was not licensed, Defendant filed a motion for a mistrial and a new trial. Defendant contended that non-lawyers are only permitted to practice law in New Mexico under certain circumstances, none of which were present in his case. Defendant argued that public policy demands that unlicensed persons cannot represent the State, that allowing an unlicensed person to represent the State would give rise to a disorderly society and a disorderly system of justice, and that Defendant’s due process rights were violated as a result of Mills representing the State.

{5} The metropolitan court did not rule on Defendant’s motion within twenty days, and the motion was therefore deemed denied under Rule 7-611(B) NMRA. Defendant filed a timely appeal in district court, arguing that the State’s use of an unlicensed person violated metropolitan court rules and that Defendant’s conviction should be reversed. Defendant also argued that the metropolitan court erred in admitting evidence obtained at the roadblock because the State had failed to establish the constitutionality of the roadblock. Specifically, Defendant argued that the officers at the roadblock had unconstitutionally broad discretion to question and detain the drivers they encountered.

{6} The district court affirmed Defendant’s conviction, concluding that while Mills’ participation in the trial appeared impermissible, or at the least not explicitly provided for, Defendant failed to show that he suffered any actual prejudice as a result. The court noted that Mills’ participation was limited to the examination of Sergeant Apodaca, that Mills was supervised by a licensed attorney at all times, that Mills did not commence the prosecution of Defendant, and that he did not exert control over the prosecution. The court also concluded that the officers at the roadblock did not have broad discretion to ask whatever they wanted of the drivers they encountered, the officers were limited to two minutes of questioning, and the record did not indicate that Defendant or any other driver stopped at the roadblock was questioned in an intimidating or unreasonable manner.

DISCUSSION

Examination of a Witness by an Unlicensed Individual Was Permissible

{7} Defendant contends that we must address two questions regarding the State’s use of an unlicensed individual during the course of a trial in metropolitan court: (1) whether the examination of a witness constitutes the practice of law and (2) whether the State’s representation by an unlicensed person requires reversal of Defendant’s conviction. For purposes of this appeal, we assume without deciding that conducting the examination of a witness during trial constitutes the practice of law. Thus, we address only the legal question of whether our rules and statutes permit an unlicensed person to practice law in metropolitan court. Our review is de novo. State v. Nevarez, 2010-NMCA-049, ¶ 10, 148 N.M. 820, 242 P.3d 387 (noting that we review questions of law de novo), cert. granted, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182.

{8} Defendant argues that unlicensed persons are only permitted to practice law in metropolitan court under two circumstances, both of which are found in Rule 7-108 NMRA. Rule 7-108 provides that “[p]eace officers may file criminal complaints against persons in the metropolitan court that has jurisdiction over the alleged offense” and that “[a] governmental entity may appear and prosecute any misdemeanor proceeding if the appearance is by an employee of the governmental entity authorized by the governmental entity to institute or cause to be instituted an action on behalf of the governmental entity.” Rule 7-108(A), (B). The Rule also provides that “[p]eace officers and government employees ... shall be authorized to testify and present evidence to the court” and that, “[i]n the court’s discretion, such parties may also ask questions of witnesses, either directly or through the court, and may make statements bringing pertinent facts and legal authorities to the court’s attention.” Rule 7-108(C). The version of the rule in effect at the time of Defendant’s trial also allowed “individual^] acting in their own behalf’ to do everything that peace officers are permitted to do under the rule. Rule 7-108 NMRA (1988). According to Defendant, because Mills was neither a peace officer nor a governmental employee, he was not permitted to prosecute Defendant.

{9} We disagree with Defendant’s assertion that non-lawyers are only permitted to practice law in metropolitan court under these two circumstances.

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Related

State v. Gonzalez
New Mexico Court of Appeals, 2017
State v. Mirabal
New Mexico Court of Appeals, 2012
State v. Rivera
2012 NMSC 003 (New Mexico Supreme Court, 2012)
State v. Rivera
2010 NMCA 109 (New Mexico Court of Appeals, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2010 NMCA 109, 249 P.3d 944, 149 N.M. 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rivera-nmctapp-2010.