State v. Kerr
| Decision Date | 16 October 1984 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 690 P.2d 145,142 Ariz. 426 |
| Parties | STATE of Arizona, Appellee, v. James Daniel KERR, Appellant. 7281. |
| Court | Arizona Court of Appeals |
(Substituted for Opinion filed August 14, 1984 and vacated on September 26, 1984)
Defendant was charged with two counts of aggravated assault (Counts One and Two), class 3 dangerous felonies, three counts of possession of prohibited weapons (Counts Three, Four and Five), class 6 felonies, two counts of theft (Counts Seven and Eight), one a class 3 felony and the other a class 6 felony, and one count of possession of marijuana (Count Six), a class 6 felony. Defendant pled not guilty to all charges and the matter was set for trial. A trial began on April 29, 1983, but ended in a mistrial on May 2, 1983. Trial again commenced on May 17, 1983. On May 19, 1983, the trial court granted defendant's motion for judgment of acquittal on Count Five, possession of a prohibited weapon. A motion for a judgment of acquittal on Counts Three and Four was denied. On that same day, the jury returned their verdict, finding defendant guilty of both counts of the aggravated assault (Counts One and Two), guilty on one count of possession of a prohibited weapon (Count Three), and guilty of possession of marijuana (Count Six). The jury found defendant not guilty of Counts Four, Seven and Eight. On June 22, 1983, the trial court sentenced the defendant to an aggravated term of 10 years on both Counts One and Two, and to an aggravated term of 1.9 years on both Counts Three and Six. All sentences were to run concurrently.
On appeal, defendant raises the following issues:
1. Did the trial court abuse its discretion in denying the motion to suppress?
2. Did the trial court err in denying the motion in limine?
3. Did the trial court err in denying the motion to dismiss Counts Three and Four of the information?
4. Can a person be indicted and convicted of possession of a prohibited weapon in violation of A.R.S. §§ 13-3101 and 13-3102 when the weapon has been registered in the National Firearms Registry?
5. Did the trial court err in denying defendant's requested jury instructions relating to Counts Three and Four?
We affirm the conviction.
The factual background in the light most favorable to sustaining the result in the trial court is as follows: on February 2, 1983, five police officers went to defendant's residence in order to serve a search warrant. The officers had reasonable suspicion to believe that stolen automobile parts were present at the home and had secured a search warrant to search for such items. At defendant's residence, the officers were confronted by his wife. She told the officers that her son was the only person home and that defendant was not there. Defendant's wife further instructed their son not to allow the officers into the house. The officers entered the house by breaking a window and began to search the residence.
One officer located a trap door to the basement in a closet. Two officers opened the trap door and began looking into the dark basement with flashlights. They observed a bed and a machine gun in the basement. The gun appeared to be loaded and ready to fire. Two of the officers descended into the unlighted basement using their flashlights. The defendant came out from behind the bed and pointed a different machine gun at the officers. He demanded to know why the officers were in his house and threatened to shoot them. One officer explained to the defendant that they had a search warrant and they were searching the basement for stolen auto parts. The defendant was told to put his gun down and he refused. The officers decided to leave the basement. They went to the head of the stairs, threw a copy of the search warrant into the basement and told defendant to read it. Defendant apparently read the search warrant and came out of the basement voluntarily. He was placed under arrest and the officers executed the search warrant.
The search uncovered the engine parts for which the warrant had been issued, an Arizona Public Service electrical transformer, a bag of marijuana, drug paraphernalia, a sawed-off shotgun, and two machine guns.
On April 25, 1983, defendant filed a motion to suppress. He contended that the search warrant was insufficient on its face because a supposed list attached to the affidavit, which described items to be sought, was never attached. At the hearing, the court was asked to make part of the record the transcript of a previous hearing in a related case. At that previous hearing, defendant's wife, who was being charged with offenses similar to defendant, had apparently brought a motion to suppress. At that motion hearing, copies of the search warrant and affidavits were admitted, but no copy of the "attached list" was produced. The court granted the request to have defense counsel join in the motion made the day before and to consider testimony taken previously in the related case. Counsel for defendant continued to argue that the warrant lacked specificity because the "attached list", which had not been part of the motion argued the day before, was never attached to the warrant. At the time of the hearing, the judge noted that the list that counsel for defendant was arguing about had not been attached to any of the copies at the prior related hearing. The trial judge made arrangements to secure the original warrant from the justice court, reviewed it, and denied the motion to suppress by order on April 27, 1983.
Neither the copies of the warrant without the attached list from the related case hearing nor the original warrant and list were ever received into evidence and are not contained in the record on appeal. Defendant now contends that the motion to suppress should have been granted because the warrant lacked specificity, relying upon State v. Dragos, 20 Ariz.App. 14, 509 P.2d 1051 (1973).
We do not accept defendant's argument. A presumption exists in favor of the validity of search warrants. State v. Superior Court, 129 Ariz. 156, 629 P.2d 992 (1981). A trial court's ruling on a motion to suppress will not be disturbed absent a clear abuse of discretion. State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178 (1983). Further, the defendant has the burden of proving that the warrant was not valid. State v. Warren, 121 Ariz. 306, 589 P.2d 1338 (App.1978). See also Search Warrants C-419847 and C-419848 v. State, 136 Ariz. 175, 665 P.2d 57 (1983). Our problem here is that neither the search warrants, affidavits nor the attached list became part of the record on appeal. While the record on appeal is composed of all documents, papers, pleadings and other items introduced into evidence, counsel for the defendant never formally moved for their introduction into evidence, particularly the original warrant with the attached list.
It is the responsibility of defense counsel to ensure that any document necessary to defendant's argument is in the record on appeal. State v. Jessen, 130 Ariz. 1, 633 P.2d 410 (1981), appeal after remand, 134 Ariz. 458, 657 P.2d 871 (1982). It is also the duty of defendant to see that the record contains the material to which he takes exception. State v. Miller, 120 Ariz. 224, 585 P.2d 244 (1978). Where the record is incomplete, a reviewing court must assume any evidence not available on appeal supported the trial court's actions. Bliss v. Treece, 134 Ariz. 516, 658 P.2d 169 (1983). Here, not only did counsel fail to include the necessary items but also made no reply to the state's argument in its answering brief that the record was incomplete and further failed to supplement the record after becoming aware of these arguments. As defendant has not carried his burden of proof by presenting the necessary evidence, we cannot find that the trial court erred in this matter.
Immediately prior to the second trial, defendant brought a motion in limine to attempt to prohibit any evidence on the two counts of possessing prohibited weapons from being introduced at trial. Defendant argued that this information should be excluded from Counts One and Two because of the prejudicial effect.
Defendant's claim is frivolous. A motion in limine is a procedural device for the suppression of evidence. State v Superior Court, 128 Ariz. 583, 627 P.2d 1081 (1981), cert. denied, Gretzler v. Arizona, --- U.S. ----, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). It cannot be used to attempt to have charges dismissed or to sever counts of an indictment to prevent prejudice to the defendant. See Rule 13.4, Arizona Rules of Criminal Procedure. Further, there would be no basis for a proper motion to sever for prejudice. The state would have to introduce evidence of a weapon as one of the elements of the aggravated assault charges (Counts One and Two). As the weapon which formed the basis for Count Three is the same weapon that was used in the aggravated assaults in Counts One and Two, evidence of this automatic weapon would be admissible in evidence on both assault counts. As the jury would be shown at least one automatic weapon at any separate trial on Counts One and Two, there is no prejudice here.
Prior to the second trial, defendant filed a motion to dismiss Counts Three and Four of the information. This motion was made pursuant to Rule 16.5(b), Arizona Rules of Criminal Procedure. The basis of the motion to dismiss was that as to the charge of possession of prohibited weapons, the defendant would raise a defense that because these two weapons were registered with the National Firearms Registry pursuant to 26 U.S.C. § 5841 (1982),...
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