April 09, 2010 – State of New Mexico v. Robert Mitchell, No. 30,050

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	APRIL 9, 2010
NO. 30,050
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ROBERT MITCHELL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil Candelaria, District Judge
Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellee
Albright Law & Consulting
Jennifer R. Albright
Albuquerque, NM
for Appellant

OPINION
FRY, Chief Judge.
{1} 	Defendant appeals the district court’s judgment affirming his conviction in
metropolitan court for DWI. Defendant raises three arguments: (1) that an electronic
signature on a criminal complaint does not satisfy the requirements of the Rules of
Criminal Procedure, (2) that Officer Lopez could not continue the DWI investigation
begun by Officer Altman because the requirements of the police-team concept were
not satisfied, and (3) that the metropolitan court erred in permitting the State to present
evidence on Defendant’s alleged prior DWI arrest. 	We proposed to affirm on the
summary calendar. 	Defendant has responded to our proposal and, not being
persuaded, we affirm. We provide necessary factual and procedural background in
our discussion of each issue.
Electronic Signature
{2} 	Defendant contends that the metropolitan court erred in determining that the
arresting officer’s electronic signature on the criminal complaint was sufficient to
satisfy the requirements of the rules of criminal procedure. 	Rule 7-210(J) NMRA
defines “signed” as including “an original signature, a copy of an original signature,
a computer-generated signature or any other signature otherwise authorized by law”
(internal quotation marks omitted). Thus, anything that requires a signature under the

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rules of procedure for metropolitan court can be signed by a computer-generated
signature. 	A criminal complaint that commences an action in metropolitan court
consists of a sworn statement containing the facts, the common name of the offense
charged, and the specific section number of the statute or ordinance that contains the
offense. 	Rule 7-201(A) NMRA. 	The complaint in this case complied with these
requirements.
{3} 	Defendant argues that Rule 7-210(J) does not apply to this situation because it
is addressed solely to the filing and service of pleadings by facsimile. We agree that
the rule is not directly on point to the facts of this case. However, we believe that the
rule gives an indication of the acceptance of computer-generated signatures in the
filing of court documents.
{4} 	In our notice, we indicated that there did not appear to be a dispute that the
signature was the arresting officer’s computer-generated signature. 	Further, we
indicated that we did not see how Defendant was prejudiced by the electronic
signature. Defendant has not responded to either of these statements. He continues
to assert that there must be an original signature on the complaint. Without a showing
of prejudice, however, there is no reversible error. State v. Fernandez, 117 N.M. 673,
677, 875 P.2d 1104, 1108 (Ct. App. 1994). We conclude that under the circumstances
of this case, the electronic signature was sufficient to satisfy the requirements of the

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rules for filing a complaint.
Police-Team Concept
{5} 	Defendant contends that the metropolitan court erred in allowing police-team
concepts to apply to this case. This issue apparently arose at trial when Defendant
moved to suppress evidence obtained by Officer Lopez, who was called by Officer
Altman to complete the DWI investigation. This Court recognizes the police-team
exception to the requirement that a misdemeanor arrest cannot be made unless the
misdemeanor was committed in the presence of the arresting officer. State v. Lyon,
103 N.M. 305, 308-09, 706 P.2d 516, 519-20 (Ct. App. 1985). The exception allows
more than one police officer to work together to investigate a defendant’s criminal
activity and use their collective effort to support probable cause for the warrantless
misdemeanor arrest.
{6} 	Here, Officer Altman stopped Defendant for a traffic violation. 	When he
approached the vehicle he noticed an odor of alcohol coming from Defendant. He
also observed bloodshot, watery eyes, and Defendant admitted to drinking “a little
bit.” 	At that point, Officer Altman called another officer to complete the DWI
investigation, and Officer Lopez responded. Officer Altman reported what he had
observed to Officer Lopez. Officer Lopez then approached Defendant and noticed an
odor of alcohol coming from the vehicle, bloodshot, watery eyes, and slurred speech.

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Officer Lopez performed field sobriety tests and arrested Defendant on charges of
DWI.
{7} 	We proposed to conclude that the two officers’ investigations together
constituted a cooperative effort permitting Officer Lopez to investigate and arrest
Defendant for DWI. See State v. Warren, 103 N.M. 472, 477, 709 P.2d 194, 199 (Ct.
App. 1985) (discussing guidelines for applying the police-team exception). Defendant
responds by pointing out that there are two situations that allow for the police-team
concept to apply: 	(1) where an officer must call in assistance for reasons such as
inherent danger or criminal flight, and (2) where officers are working collectively. Id.
He argues that neither of these situations applies to this case. 	He makes much of
Officer Altman’s testimony that even though he is trained in investigating DWIs, he
called for a second officer because that is what he does. Defendant argues that there
was no need for cooperative work here.
{8} 	Our cases, however, do not say that the police-team concept will apply only if
there is a need for cooperative work. Rather, the concept will apply if there has been
cooperative work. Defendant argues that the two officers did not work collectively.
He appears to be arguing that where one officer passes the investigation onto another
simply because he did not want to finish it, there is not collective police work. That
may be so, but that is not what happened here. Officer Altman was on patrol as part

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of a tactical operation plan when he stopped Defendant. 	His primary duty was to
patrol the streets, not to perform DWI investigations. Thus, his observations could
properly be passed onto Officer Lopez to investigate the possibility of DWI. 	We
conclude that the police-team concept was appropriate here and there was no basis to
suppress the evidence obtained by Officer Lopez.
Evidence of Prior Arrest
{9} 	Defendant contends that the metropolitan court erred in allowing the State to
question him about an alleged prior DWI arrest history. He contends that the evidence
was inadmissible prior bad acts evidence. See Rule 11-404(B) NMRA (providing that
evidence of other crimes, wrongs, or bad acts is not admissible to prove action in
conformity therewith). 	It appears that the questioning here arose during cross-
examination when Defendant testified that he did not understand what the field
sobriety tests “were looking for.” There was also apparently a question about whether
Defendant understood Officer Lopez when he explained what Defendant was required
to do on the tests.
{10} 	Defendant acknowledged that he had trouble walking, but that he did not think
that would affect his performance on the tests. 	He also acknowledged that he had
performed field sobriety tests before, but that he did not remember what the particular
tests required him to do. 	Only when the prosecutor asked when Defendant had

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previously performed the field sobriety tests did counsel object to the line of
questioning, stating that it was not material to anything. 	The metropolitan court
determined that the evidence was material to whether Defendant understood the
instructions for each test. See State v. Allen, 91 N.M. 759, 760, 581 P.2d 22, 23 (Ct.
App. 1978) (stating that evidence of collateral offense may be admitted if relevant to
a “material element of the crime charged which is in issue and upon which there is
doubt” (internal quotation marks and citation omitted)).
{11} 	Defendant acknowledges that a general reference to whether or not Defendant
had taken a field sobriety test prior to the incident in question might be relevant and
material. He argues, however, that repeated evidence regarding numerous prior DWI
arrests is not relevant and is highly prejudicial. We disagree. First, it does not appear
that the State sought to introduce evidence of numerous prior DWI arrests. Instead,
it appears it was trying to establish how long ago the prior arrest was. That could be
relevant to whether Defendant could remember how to perform the tests and what was
required of him. 	Second, this was a bench trial, and the metropolitan court was
careful to make clear that the evidence regarding prior arrests was relevant only to
whether or not Defendant understood what he was required to do for the test. It was
not used as evidence that Defendant was guilty of DWI in the current incident.
{12} 	Defendant argues that the metropolitan court never engaged in the weighing

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required by Rule 11-403 NMRA. We are unpersuaded. First, it does not appear that
defense counsel objected on the ground that the evidence, while relevant, was unduly
prejudicial. 	Rather, his objection went to materiality. 	See State v. Elliott, 2001-
NMCA-108, ¶ 21, 131 N.M. 390, 37 P.3d 107 (requiring that for preservation
purposes objections to the admission of evidence specifically apprise the district court
of the nature of the objection). Counsel did not ask the metropolitan court to make a
determination regarding whether the evidence was more prejudicial than probative.
Second, although there is no formal weighing on the record, it appears that the
metropolitan court determined that the evidence was not unduly prejudicial because
the court stated that it did not care about earlier arrests. Ultimately, we assume that
the erroneous admission of evidence in a bench trial is harmless unless it appears that
the court must have relied on the improper evidence in rendering a decision. See State
v. Hernandez, 1999-NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156. We conclude
that it was not reversible error to allow the State to question Defendant about prior
DWI arrests in connection with his performance of field sobriety tests where the
metropolitan court did not rely on that evidence to support the conviction.
CONCLUSION
{13} 	For the reasons stated herein and in the notice of proposed disposition, we
affirm the judgment and sentence.

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{14} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
ROBERT E. ROBLES, Judge