State v. Haas

• Decision Date: 05 November 1980
• Docket Number: No. 40232,40232
• Citation: 610 S.W.2d 68
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ervin Albert HAAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 68

610 S.W.2d 68

STATE of Missouri, Plaintiff-Respondent, v. Ervin Albert HAAS, Defendant-Appellant.

No. 40232.

Missouri Court of Appeals, Eastern District, Division Two.

Nov. 5, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 12, 1980.

Application to Transfer Denied Feb. 9, 1981.

Terry Burnet, Asst. Public Defender, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

KELLY, Chief Judge.

Ervin Albert Haas, the appellant, was convicted by a jury in the Circuit Court of the City of St. Louis of three counts of Assault with Intent to Kill with Malice Aforethought, § 559.180 RSMo. 1969, Armed Criminal Action, § 556.140 RSMo. 1969, and Attempted Robbery, §§ 556.150(2) and 560.120 RSMo. 1969. He was sentenced to 40 years imprisonment on each of the Assault Counts, said sentences to be served concurrently; to 3 years imprisonment on the Armed Criminal Action Count and to 10 years imprisonment on the Attempted Robbery Count; the latter two sentences to be served consecutively to the sentences imposed on his convictions for the assault charges. He has perfected this appeal from those convictions.

On appeal, appellant presents four Points Relied On as grounds for the reversal of his convictions and remand of this cause to the Circuit Court for a new trial.

Appellant does not challenge the sufficiency of the evidence to sustain the jury's findings, so a short statement of the facts the jury could find from the evidence will be sufficient, with a more detailed recitation of the evidence where necessary for disposition of appellant's Points.

The state's evidence was that on November 17, 1976, at approximately 11:00 p. m. two men entered Bogart's Tavern in the City of St. Louis. One of these men wore a mask covering his face; the other was carrying a shotgun. The masked man approached Debbie Wren, a bartender in the Tavern, and demanded that she give him the money. As Ms. Wren turned towards the cash register she heard a shot and felt something "flick" off of her shirt. Gina Forman, who was also in the Tavern, in the meantime and after observing both of these men, ran to Bogart's back room where she informed Walter Serb, an off-duty police officer, of what had occurred in the front bar. Officer Serb drew his service revolver and started to run towards the front of the tavern, and as he did so, the man armed with the shotgun shot Officer Serb, causing him to black-out.

Robert Schaefer, another off-duty police officer who had been standing near Ms. Wren when the shot was fired at her, testified that it was the masked man who shot at Ms. Wren, missed her and hit a cooler. He also saw a third person outside the tavern pacing back and forth in front of the establishment. He also testified that he heard a second shot fired and a few seconds later saw his fellow officer, Officer Serb, collapse to the floor.

The masked man and his cohort fled the scene with Officer Schaefer in pursuit. The man with the shotgun ran directly west from the tavern and Officer Schaefer fired once at him before pursuing the masked man who ran down an alley and through a parking lot adjacent to the tavern, exchanging fire as they both ran. The masked man made good his escape, diving over a cyclone fence. Officer Schaefer found a ski mask, a dark coat, a pair of gloves and a revolver. Witnesses at trial testified that these articles were similar to those used by the masked man on the night of the attempted robbery, and also described the masked man as a black male in his middle twenties.

The morning following this occurrence, November 18, 1976, Ed Coleman, a resident of Magdala House, a half-way house, informed the police that he had overheard Haas plan the robbery of Bogart's and had asked him to aid in carrying out the robbery but that he declined to take part in it. He also testified that Haas told him he had "pulled the job."

Haas was arrested at his place of employment at approximately 1:45 p. m. the same day after Ed Coleman had informed the police. The arresting officers,-Green, Hollacher and Schwartz-read Haas his Miranda rights and after their arrival at the police station, questioned him. He agreed to make a statement and later to appear on video tape. He admitted his participation in the incident.

Appellant's first ground for reversal of his conviction is that the trial court erred in overruling his counsel's objections to the Assistant Circuit Attorney, in closing argument, mentioning his prior convictions as substantive evidence of the crimes charged.

Appellant testified in his own behalf during trial and in the course of his testimony he testified that in 1956 and again in 1964 he had been convicted of robbing a bank, and that he was on "mandatory release." In his closing argument the Assistant Circuit Attorney argued:

"Who is Ervin Haas? On his credibility whether he is a truth teller to you, 1956 conviction for robbing a bank; in 1964, conviction for bank robbery.

Then he told you he is out on parole and he is convicted here for robbery and then he calls it mandatory release, a type of parole, when this happens.

He is 43 years old. He has been around. He has got some experience."

The Assistant Circuit Attorney then argued that appellant was the more experienced of the triumvirate who took part in this robbery, emphasizing that Haas was the man behind the mask-that there was something special about the one man putting on the mask which made him different than the other two men who participated with him in the commission of these crimes. The prosecutor then directed his argument to the manner in which the attempted robbery took place: the two men enter the bar, one goes to the radiator between a "brick pillar-type thing that is three feet high" from an angle so he can cover the room and his masked friend at the bar while the third man was outside acting as a lookout. This, he argued, showed planning, that the culprits knew what they were doing and not just kids pulling their first job. At this point defense counsel objected as follows:

"Your Honor, I will object to this as being improper argument."

To preserve any error in a ruling on an objection to the admissibility of evidence or the propriety of argument it is fundamental that the objection be specific and give a valid reason so that the trial court is afforded an opportunity to rule on the point. State v. Williams, 575 S.W.2d 838, 840(8) (Mo.App.1978). The objection in this case does not satisfy this requirement because it did not inform the trial court that the basis for the objection was that the prosecutor was arguing appellant's prior convictions as substantive evidence of the guilt of the defendant in the crimes for which he was then on trial.

While this argument may come close to the line, we conclude that the argument was not prejudicial in the context where the prosecutor argued that the manner in which the crimes were committed showed evidence of planning and that the culprits were not inexperienced. We hold that the trial court did not commit error in overruling appellant's counsel's objection.

Appellant's next Point Relied On is that the trial court erred in overruling his Motion to Suppress Statements because the state failed to present sufficient evidence to support a finding that said statements were voluntary.

As might be expected, there was conflicting evidence on this question. The state's witnesses testified that appellant was given his Miranda rights when taken into custody and prior to any interrogation. He was not interrogated until his arrival at the police station and indicated that he understood his rights and made a statement of approximately one hour's length, agreed to make a videotaped statement, and was placed in a lineup. Sergeant Green, one of the arresting officers, testified that no one struck and no one threatened appellant in his presence; on cross-examination he testified that appellant made no complaints to him about any injuries and had no difficulty walking but admitted he did not look at appellant's hands. He did arrange for the appellant to be taken to the hospital when appellant complained of pain after his videotape session.

James Pentz, program director of closed circuit television for the St. Louis Police Department, testified that he taped a question and answer session with appellant with Detective Riley on November 18, 1976, and at that time observed no obvious injuries to appellant. Detective Riley testified and he too saw no injuries to appellant nor observe him show any trouble walking. He admitted that after the videotape session had concluded appellant complained of an injury to his hand and noticed that it was swollen. He informed Sergeant Green of this condition.

In appellant's behalf, Mrs. Del C. Hardy, an employee of the purchasing department of St. Louis University, testified that on November 18, 1976, appellant came to work and had a bruised second finger on his right hand. Appellant was not limping at this time. Mrs. Hardy testified that police officers arrested appellant that day at approximately 1:00 o'clock. Mrs. Hardy stated she believed appellant called a cut in his leg to Mr. Porter's attention, but not to hers. Mr. Jack Porter, also an employee for St. Louis University, testified that on November 18, appellant had a swollen finger and went to a doctor on campus for x-rays. Appellant stated that he had slipped on a bunk bed and injured the finger. Appellant did not mention an injured leg to him, but one of the girls in the office mentioned it to him. Mr. Thomas Motley testified that he saw appellant on November 19th at police headquarters and that appellant walked with a limp, his fingers looked funny, there were slight abrasions on his face, which was puffy, and appellant's rib cage showed discoloration and puffiness. Ms. Carol...