September 30, 2010 – State of New Mexico v. Zirachuen Rivera, No. 29,317

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	September 30, 2010
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 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

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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

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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 “appear[ed] impermissible, or at the least not explictly

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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,

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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 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.

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{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

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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

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not only in district court, but also before other courts and administrative agencies
throughout the State. Because Defendant contends that there is no 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
unconstititional. 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.

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{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

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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 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

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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-18, ¶ 11.
CONCLUSION

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{19} 	For the foregoing reasons, we affirm Defendant’s conviction.
{20} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
ROBERT E. ROBLES, Judge