Certiorari Granted, December 3, 2010, No. 32,677

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-109

Filing Date: September 30, 2010

Docket No. 29,317

STATE OF NEW MEXICO

       Plaintiff-Appellee,

v.

ZIRACHUEN RIVERA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross Sanchez, District Judge

Gary K. King, Attorney General
Santa Fe, NM

James W. Grayson, Assistant Attorney General
Albuquerque, NM

for Appellee

Lisa A. Torraco
Albuquerque, NM

for Appellant

                                       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

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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

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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, ___ N.M. ___, ___
P.3d ___ (noting that we review questions of law de novo), cert. granted, 2010-NMCERT-
006, ___ N.M. ___, ___ P.3d ___.

{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

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Defendant’s trial also allowed “individual[s] 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. NMSA 1978, Section 36-
2-27 (1999) provides that “[n]o person shall practice law in a court of this state, except a
magistrate court . . . unless he has been granted a certificate of admission to the bar under
the provision of Chapter 36 NMSA 1978.” Under the plain language of this section, it is
clear that a person who has not been admitted to the bar is permitted to practice law in a
magistrate court in New Mexico. NMSA 1978, Section 34-8A-2 (1980) provides that “the
metropolitan court shall constitute a state magistrate court which is inferior to the district
courts.” Because the metropolitan court is a magistrate court, and because non-lawyers are
permitted to practice law in magistrate courts, our Legislature has expressly granted non-
lawyers the ability to practice law in metropolitan court.

{10}      We note that our “Supreme Court is vested with the exclusive power to regulate
pleading, practice, and procedure in the courts” and that “when a statute conflicts with a
Supreme Court rule on a matter of procedure, the Supreme Court rule prevails, and the
statute is not binding.” State v. Valles, 2004-NMCA-118, ¶ 14, 140 N.M. 458, 143 P.3d 496.
Where a statute involves substantive law and there is a conflict between a rule and a statute,
“the statute prevails, and the Supreme Court rule is not binding.” Id. Thus, if Section 36-2-
27 conflicts with Rule 7-108, and if Section 36-2-27 involves pleading, practice, and
procedure, then the limitations imposed by Rule 7-108 would prevail over the broader
authority to practice law in metropolitan court conveyed by Section 36-2-27. While Rule 7-
108 limits who may initiate a prosecution against persons in metropolitan court, it does not
bar unlicensed persons from participating in a trial. Thus, while Mills would not have been
permitted to initiate the prosecution of Defendant in metropolitan court, he was not barred
by the rule from participating in the prosecution initiated and controlled by the State. There
is therefore no conflict between the statute and the rule under the facts of this case, and we
do not address whether Section 36-2-27 involves a substantive right or pleading, practice,
and procedure.

{11} We note that Rules 5-110 NMRA, 5-110.1 NMRA, 1-094 NMRA, and 1-094.1
NMRA, also provide a mechanism for unlicensed persons to practice law in New Mexico.
Specifically, those rules permit law students participating in clinical education programs to
participate in criminal and civil proceedings when certain requirements, such as obtaining
written approval of the presiding judge, have been met. See id. While the rules are contained
in the rules of procedure for the district court, they authorize law students who meet the
requirements of the rule “to appear before the courts and administrative agencies of th[e]
state.” Rule 1-094(B). Thus, the rules appear to permit and provide a mechanism for law
students to practice law not only in district court, but also before other courts and
administrative agencies throughout the State. Because Defendant contends that there is no

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evidence that Mills was a law student, we do not address the relationship between Rule 5-
110 and Section 36-2-27.

{12} Because we conclude that Mills’ participation in Defendant’s case was expressly
authorized by Section 36-2-27, we affirm the denial of Defendant’s motion for mistrial and
for a new trial.

Roadblock was Constitutional

{13} Defendant next contends that the roadblock where he was stopped was
unconstitutional. Specifically, Defendant argues that the roadblock’s guidelines did not
properly restrict the officers’ discretion to talk to motorists. Sergeant Apodaca, the
supervising officer that set up the roadblock, testified that he set guidelines limiting the field
officers’ discretion to discuss certain topics with motorists and provided those instructions
to the officers at a briefing prior to the roadblock. Sergeant Apodaca indicated that officers
were limited to no more than two minutes of conversation with motorists, and that they were
not permitted to ask questions unrelated to a driver’s sobriety, such as whether a driver had
any warrants or a driver’s license. Despite this testimony, Defendant contends that the field
officers were not actually limited in their discretion to detain drivers and discuss certain
topics.

{14} Defendant points to the testimony of Officer Olvera, the officer who stopped
Defendant at the roadblock. According to Defendant, Officer Olvera testified that he
“believed [he] could take two to three minutes” to talk to each driver. The citation
Defendant provides for that testimony, however, does not exist in the record. Officer Olvera
did testify that while he tried to keep his contact with drivers to two minutes, his contact was
limited to “two or three minutes.” This was in response to defense counsel’s questioning
regarding roadblocks in general, not the specific roadblock where Defendant was stopped.

{15} Defendant also points to the fact that Officer Olvera indicated that he thought he
could ask questions such as whether a driver had any warrants or whether a driver had a
license, although that he had never asked such questions, and he limited his questioning to
whether a driver had been drinking. Defendant contends that there is a wide disagreement
between what Sergeant Apodaca told the field officers to do and what Officer Olvera
actually believed he was able to do. As a result, Defendant argues that the metropolitan
court erred by considering the circumstances of Defendant’s stop rather than the restrictions
that the stopping officer perceived as applying to the roadblock. We disagree and, for the
following reasons, affirm the court’s conclusion that the roadblock was constitutionally
reasonable.

{16} “Whether a search and seizure was constitutional is a mixed question of law and
fact.” State v. Duran, 2005-NMSC-034, ¶ 19, 138 N.M. 414, 120 P.3d 836. We therefore
“review factual determinations by the trial court under a substantial evidence standard” and
the trial court’s “determination of legal questions de novo.” Id. In doing so, we will indulge

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all reasonable inferences in support of the trial court’s decision and “all inferences or
evidence to the contrary will be disregarded.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129
N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). “Conflicts in the
evidence, even within the testimony of a witness, are to be resolved by the fact finder at
trial.” Id.

{17} Our primary concern in analyzing the constitutionality of a roadblock is the
determination that “an individual’s reasonable expectation of privacy is not subject to
arbitrary invasions solely at the unfettered discretion of officers in the field.” City of Las
Cruces v. Betancourt, 105 N.M. 655, 658, 735 P.2d 1161, 1164 (Ct. App. 1987). One factor
that we consider in making this determination is whether the discretion of the field officers
is limited by the creation of uniform restrictions to be utilized when stopping motorists. Id.
at 659, 735 P.2d at 1165. “Automobiles should not be stopped randomly,” and officers
should be provided with “uniform procedures to be utilized when stopping motorists” so that
“[a]s nearly as possible, each motorist [will] be dealt with in precisely the same manner.”
Id. This factor is dispositive, and if the “police fail to establish uniform procedures for
dealing with motorists who come through a roadblock, the roadblock will not pass
constitutional muster and the stops will be invalid.” State v. Villas, 2002-NMCA-104, ¶ 7,
132 N.M. 741, 55 P.3d 437.

{18} Here, the metropolitan court heard testimony that Sergeant Apodaca created uniform
restrictions limiting the amount of time field officers could question drivers and the content
of the questions field officers could ask drivers. Defendant contends that because Officer
Olvera indicated that he believed he had slightly more discretion than Sergeant Apodaca had
provided to the field officers, the metropolitan court erred in concluding that the officers’
discretion was appropriately limited. In so arguing, Defendant asks this court to reweigh the
evidence and conclude that the metropolitan court should have relied on Officer Olvera’s
testimony rather than Sergeant Apodaca’s testimony. Because resolution of any conflicts
in the testimony of witnesses is exclusively the province of the metropolitan court, the
metropolitan court was free to reject Officer Olvera’s testimony and rely on Sergeant
Apodaca’s testimony regarding the limits placed on the field officers’ discretion. Defendant
does not argue that the limits Sergeant Apodaca placed on the field officers’ discretion were
insufficient, nor does he attack any other aspects of the roadblock. We therefore conclude
that the metropolitan court properly denied Defendant’s motion to suppress the evidence
obtained as a result of the roadblock. See Jason L., 2000-NMSC-018, ¶ 11.

CONCLUSION

{19}   For the foregoing reasons, we affirm Defendant’s conviction.

{20}   IT IS SO ORDERED.

                                              ______________________________________
                                              CYNTHIA A. FRY, Chief Judge

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WE CONCUR:

______________________________________
MICHAEL D. BUSTAMANTE, Judge

______________________________________
ROBERT E. ROBLES, Judge

Topic Index for State v. Rivera, Docket No. 29,317

AT                   ATTORNEYS
AT-UP                Unauthorized Practice

CL                   CRIMINAL LAW
CL-DG                Driving While Intoxicated

CA                   CRIMINAL PROCEDURE
CA-CX                Cross-examination
CA-PJ                Prejudice
CA-RK                Roadblocks
CA-SZ                Search and Seizure

CT                   CONSTITUTIONAL LAW
CT-FA                Fourth Amendment




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