State v. Ambus
| Decision Date | 08 April 1975 |
| Docket Number | No. 35763,35763 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary AMBUS, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, Edwin H. Steinmann, Jr., Henry J. Rieke, Asst. Public Defenders, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant-appellant, Gary Ambus, was charged with assault with intent to rob with malice aforethought, found guilty by the jury and sentenced by the court to thirteen years in the department of corrections. He appeals. For reasons hereinafter stated, we affirm.
Since appellant does not question the sufficiency of the evidence, only those facts pertinent to resolve the points on appeal need be stated.
On the morning of September 25, 1972, Walter Westerhold, the manager of Bonified Oil Station located at 454 North Skinker Boulevard in the City of St. Louis opened the service station for the day's business. He opened the station about 8:00 a.m. At about 8:25 a.m., when he was at the gas pumps, he noticed a person, later identified as the appellant-Ambus, outside the station by the soda machines. He also noticed another person, identified as Robert Young, inside the station. He approached Ambus and asked what he could do for him. Ambus stated that 'he wanted a pack of cigarettes.' Westerhold walked into the station to the 'back room door where the cigarette rack was hanging on the door.' Ambus followed him into the station. Westerhold then asked Young what 'I could do for him.' He stated that 'he needed a can for gasoline.' Westerhold noticed that Young had a gun in his belt under his jacket. Westerhold then decided to go inside the store room and 'try and slam the door behind me. . . .' As he did so, the two men 'burst through the doorway' and 'both had weapons in their hands.' Ambus had a 'blue steel automatic.'
Westerhold tried to slam the door and 'they both kind of threw the door back open and they fired.' They said, "Let's have the money' or something to that nature.' Ambus fired a shot. Westerhold jumped to the back of the store room where 'I had a gun laying on the oil' cans, and fired back five shots. Both men ran from the station. They went halfway across the lot and then turned around and came 'right straight back.' Westerhold at that time was trying to call the police. When the men started coming back, he fired a shot through the window and shot Ambus. Both men then continued to go south on Skinker Boulevard. Westerhold called the police. Within minutes, Officers McLaughlin and Sexton came to the station. McLaughlin observed blood on the ground and followed the trail. About 45 feet away on the sidewalk, he found a pistol (.32 automatic) which was identified as the one Ambus carried. Officer McLaughlin examined it and could 'faintly smell what appeared or what I sensed to be a recently fired weapon and there was a bit of heat on it which would indicate that it was, indicate possibly was just recently fired.' 'It was a strong smell.'
Officers Dember Bonds and Jack Billings also came to the service station. When Bonds arrived, he observed Officer McLaughlin holding the .32 caliber automatic. Bonds and Billings followed the trail of blood, which led to 6145 Waterman, about two blocks away. Other officers also came upon the scene. Officer Robert Wencewicz followed the trail of blood to the Waterman address. When Wencewicz reached that address, he went in with gun drawn and found the defendant partially under a bed. Officers Bonds and Billings also entered the room. They found the defendant was injured. He 'might have been in a state of shock . . ..' His hand was wrapped in a towel, and when uncovered his thumb was 'almost off, it was just hanging.' Officer Wencewicz did not remember 'the man saying anything.' In the room also there was Officer Richards with a police dog.
Officer Billings advised Ambus of his Miranda rights; Ambus responded and said 'he knew his rights.' Billings then asked him what happened, and Ambus said he 'hurt his thumb when we hit the place up the street.' Ambus was quiet and spoke in a low tone of voice. A cruiser was called for, and Ambus was taken to the hospital. He had been shot several times--in the right front chest area and in the upper right back area.
In due time, the defendant was tried on August 27, 28 and 29, 1973. In that trial, the jury could not reach a verdict. Trial was then reset for September 24, 1973. On the preceding Friday, September 21, counsel for the defendant filed a motion to produce a transcript of the previous trial, alleging that the defendant was indigent and that he needed the transcript to 'properly retry said cause.' Failure to provide the transcript, it was alleged, would result in 'fundamental unfairness. . . .' In an affidavit filed with the motion, counsel stated that on the previous day the defendant expressed his intention to maintain his plea of not guilty, although earlier he had indicated he would plead guilty. The motion was denied by the judge in the assignment division. 1
The trial judge below adopted the ruling of the assignment judge and also overruled the renewed motion to produce a transcript of the previous trial.
Prior to the first trial, defendant moved to suppress any statements made by him on the ground that they were not voluntarily and intelligently made. A hearing was held on the motion and was overruled. The trial judge below at the beginning of the second trial also adopted the ruling and denied th motion to suppress statements made by the defendant.
Trial was then held on September 24--26, 1973, and the facts as stated above were adduced.
During the defendant's case, counsel called the court reporter in the first trial. She testified as to certain differences in the testimony of Officer Wencewicz from the first trial. Counsel also called Officer Bonds, who wrote the police report, as his witness. He testified that although Ambus had made a statement to Officer Billings concerning how his thumb was hurt the statement was not in the report because of an error.
When the evidence was completed, the court gave several instructions including a 'flight' instruction. 2
On this appeal, defendant contends that the trial court erred (1) in denying the defendant's motion to produce the transcript of the first trial for the reason that defendant was thus deprived of his right to adequate cross-examination, equal protection and effective assistance of counsel during the second trial; (2) in overruling the motion to suppress statements because they were not made voluntarily or after an intelligent waiver of his right to remain silent; and (3) in giving the flight instruction because there was no evidentiary support for the giving of the instruction.
As to the first point, appellant argues (1) that his attempts to impeach the state's witnesses were impeded because of the absence of the transcript of the first trial, hence the transcript was valuable to him; and (2) that alternative devices were not available. Appellant relies on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), and its progeny as authority for the proposition that he is entitled to the first trial transcript.
In Britt, supra, petitioner was tried for murder. The first trial ended in a 'hopeless deadlock.' A retrial was then scheduled for the following month. In the interim, petitioner filed a motion alleging he was indigent and requested a free transcript of the first trial. The North Carolina appeals court affirmed the denial of the motion, stating that the record did not reveal a sufficient need for the transcript. The Supreme Court of the United States granted certiorari. The court held that, while the principle of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955), is applicable, no violation of that rule has been shown 'in the narrow circumstances of this case.' The court stated that (Emphasis added). 404 U.S. at 227, 92 S.Ct. at 433.
There are two relevant factors, the court stated, to determine need: (1) the value of the transcript to the defendant and (2) the availability of alternative devices that would fulfill the same function as a transcript. As to value, the court agreed that there would be serious doubts of the North Carolina decision if it rested on the failure to specify 'how the transcript might have been useful to him.' The cases recognize value to a defendant 'without requiring a showing of need tailored to the facts of the particular case.' Value exists either as a discovery device in preparation for trial or for the impeachment of witnesses. The Supreme Court affirmed the denial of the transcript, because the North Carolina court rested its decision on the 'availability of adequate alternatives to a transcript.' The second trial was before the same judge, with same counsel, the same court reporter, and the two trials were only a month apart. The trial court suggested that the memory of petitioner and his counsel should have furnished an adequate substitute for the transcript, and in addition the petitioner could have called the court reporter to read to the jury the testimony of the previous trial. While the court rejected the suggestion that counsel must keep...
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State v. Russell
...waiver of constitutional rights. Two opinions from the Missouri Court of Appeals graphically underscore this view. In State v. Ambus, Mo.App., 522 S.W.2d 306, 311, 312, defendant had been shot several times, his hand had been severely injured and his thumb had been nearly torn off. Defendan......
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State v. Tomlinson
...also require that a motion for the transcript be timely made. State v. Sanchez, 86 N.M. 68, 519 P.2d 304 (App.1974); State v. Ambus, 522 S.W.2d 306 (Mo.App.1975); State v. Johnson, 261 La. 620, 260 So.2d 645 (1972), cert. den., 409 U.S. 1085, 93 S.Ct. 691, 34 L.Ed.2d The State of Kansas has......
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Harris v. State
...mere fact that the defendant had been injured prior to his statement does not proscribe the use of such statements."); State v. Ambus, 522 S.W.2d 306, 311 (Mo.App. 1975) ("The fact that the defendant was wounded does not preclude a waiver or make the statement involuntary. We know of no con......
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State v. Jones
...added.) There is no equal protection issue here. Appellant was not denied the transcript because he was indigent. See State v. Ambus, 522 S.W.2d 306, 310 (Mo.App.1975). He was furnished portions of the transcript for which he had expressed a particular interest, but was not furnished those ......