Certiorari Denied, No. 32,384, June 3, 2010
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-059
Filing Date: April 9, 2010
Docket 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
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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 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 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
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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. 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 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.
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{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 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 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
Topic Index for State v. Mitchell, Docket No. 30,050
CL CRIMINAL LAW
CL-DG Driving While Intoxicated
CA CRIMINAL PROCEDURE
CA-MD Misdemeanor Arrest Rule
CA-PJ Prejudice
CA-WA Warrantless Arrest
EV EVIDENCE
EV-PA Prior Acts or Statements
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