State v. Rivera
| Decision Date | 27 December 1990 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 168 Ariz. 102,811 P.2d 354 |
| Parties | The STATE of Arizona, Appellee, v. Angel Rivas RIVERA, Appellant. 90-0266. |
| Court | Arizona Court of Appeals |
Appellant was charged with first-degree murder for a prison homicide. A jury found him guilty, and the trial court imposed a sentence of life imprisonment.
Appellant and his codefendant, both members of the Mexican Mafia prison gang, were cellmates. According to an inmate who testified for the state, appellant admitted to him that they killed the victim in retaliation for an assault the victim had previously committed on one of the bosses of the Mexican Mafia.
The victim had 47 stab wounds, six of which could have been fatal. Investigators found two prison-made shanks, one where the body was found and a second in the cellblock about 40 feet from appellant's cell. There was a trail of blood from the area where the body lay right into the cell where the two codefendants lived. Appellant had blood on him, the codefendant had blood on him, and numerous bloody items were found in their cell.
Various guards saw appellant in the area where the stabbing took place. One guard had issued appellant a rake which was found 10 feet from where the stabbing took place.
Appellant raises two issues on appeal: (1) the charges against him should have been dismissed because of pre-indictment delay; and, (2) the testimony of the witness should have been suppressed. We affirm.
The murder took place on May 18, 1987. Charges were brought before the grand jury in March 1989. Appellant argues that he is entitled to dismissal of the charges by reason of pre-indictment delay because the prosecution intentionally or recklessly delayed seeking an indictment in order to gain a tactical advantage, and that he has suffered actual prejudice as a result of the delay. State v. Broughton, 156 Ariz. 394, 752 P.2d 483 (1988).
A hearing was held on appellant's motion to dismiss the indictment. The trial court heard sworn testimony before denying the motion. The transcript of that hearing is not part of the record on appeal. It is within the defendant's control as to what the record on appeal will contain, and it is the defendant's duty to prepare the record in such a manner as to enable an appellate court to pass upon the questions sought to be raised in the appeal. State v. Cutting, 15 Ariz.App. 311, 488 P.2d 667 (1971). Where matters are not included in the record on appeal, the missing portion of the record will be presumed to support the decision of the trial court. State v. Zuck, 134 Ariz. 509, 658 P.2d 162 (1982); State v. Miller, 120 Ariz. 224, 585 P.2d 244 (1978); State v. Anzivino, 148 Ariz. 593, 716 P.2d 50 (App.1985). An appellate court will not speculate about the contents of anything not in the appellate record. State v. Kerr, 142 Ariz. 426, 690 P.2d 145 (App.1984). In the absence of a record to the contrary, we must presume that the trial court acted properly in denying...
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State v. Enriquez
...for ensuring the record on appeal contains all necessary transcripts to review the issues he raises. State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990). When a defendant fails to provide a transcript of in limine proceedings, we "presume that the record supports the decision......
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State v. Henry
...has not been established, and we find the record insufficient to allow appellate review of the issue. See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App.1990) (appellant has duty to ensure record contains any document necessary to argument; court will not speculate on content n......
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State v. Watson
...has not been identified by Watson, and we will not speculate about the contents of anything not in the appellate record. State v. Rivera, 168 Ariz. 102, 103 (App. 1990). Nevertheless, we presume the contents of the exhibit support the court's decision not to take other remedial measures, in......
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State v. Ortiz-Padilla
...and how to remedy any error that may have occurred due to the state's use of an incorrect translation.4 See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990) (appellant controls contents of record on appeal and must submit transcripts necessary for review of issues); see al......