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State v. Weiss
Citations: 105 N.M. 283; 731 P.2d 979Docket: No. 9496
Court: New Mexico Court of Appeals; December 16, 1986; New Mexico; State Appellate Court
Defendant sought an interlocutory appeal after his motion to quash an eighty-three-count indictment was denied. The appeal addressed whether the grand jury violated NMSA 1978, Section 31-6-4(A) by conducting its hearing outside of standard court hours, which would necessitate dismissal of the indictment. The court affirmed that there was no violation in this case. Dr. James I. Weiss, an Albuquerque dentist, faced numerous charges, including fraud and racketeering. The grand jury session, which began at 8:30 a.m. on August 7, 1986, included deliberations that extended into the early hours of August 8, with a true bill returned at 2:12 a.m. After Judge Rebecca Sitterly left for vacation at 5:00 p.m., Weiss's counsel raised concerns about the timing. Judge Rozier Sanchez advised the grand jury that they could choose to continue or adjourn the hearing. The grand jury ultimately decided to proceed, believing it could fairly render a decision without a recess. They concluded that their session remained within 'usual business hours' and that the foreman had the authority to convene them. Weiss argued that the extended session violated his rights under Section 31-6-4(A), which mandates hearings occur during usual court hours. The court noted a distinction between the judge's business hours and the court's hours, indicating that the grand jury's actions were permissible under the circumstances. A judge's unavailability after 5:00 p.m. does not preclude court access, as judges often extend hours for urgent matters. Despite the grand jury's inability to contact Judge Sitterly, assistance was provided by Judge Sanchez via phone. Although Judge Sanchez noted a conflict between UJI Crim. 60.00 and Section 31-6-4(A), the focus is on whether this conflict caused prejudice to the defendant, Weiss. The court emphasized that non-compliance with statutory directions is not typically considered mandatory unless it results in prejudice. Weiss argued that an extended grand jury session beyond typical hours violated his due process rights, asserting that a lengthy session constitutes a substantial violation. However, the court ruled that the extended session did not amount to a substantial violation, and Weiss needed to demonstrate actual prejudice for the indictment to be dismissed. The court referenced prior cases establishing that unauthorized presence in the grand jury room constitutes per se prejudice, but this standard does not apply to Weiss's situation. The court maintained that actual prejudice must be shown in cases of procedural violations. Weiss failed to prove such prejudice, and the court found no due process violation despite the grand jury's lengthy meeting. The trial court's denial of Weiss's motion to quash the indictment was upheld.