STATE of Minnesota, Respondent, v. Larry Larue CLARK, Appellant.
No. A06-1476.
Supreme Court of Minnesota.
Aug. 28, 2008.
755 N.W.2d 241
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, Saint Paul, MN, for respondent.
OPINION
PAUL H. ANDERSON, Justice.
A Ramsey County jury found Larry Larue Clark guilty of first-degree premeditated murder while aiding and abetting or being aided and abetted by another in violation of
Just after midnight on Friday, May 22, 1970, the Saint Paul police received an emergency telephone call requesting assistance for a woman in labor at 859 Hague Avenue in the Selby-Dale neighborhood. Officer Sackett and his partner, Officer Glen Kothe, responded to the call, parked their police car in front of 859 Hague, went to the front door, and knocked. When no one in the house came to the door, Kothe walked to the back door and knocked. Hearing a dog bark inside, Kothe started to warn Sackett about the dog, and, as he did so, he saw a bright flash, heard a loud bang, and heard a scream. Running to the front of the house, Kothe found Sackett lying on the ground, bleeding. Kothe realized that Sackett had been shot and radioed for assistance. At some point, a crowd, including Reed and other members of the United Black Front, gathered at the scene. Clark was not identified as having been present in the crowd. Sackett later died as a result of a gunshot wound to the chest.
In the ensuing investigation, the police determined that no one at the 859 Hague
Through voice-print analysis, the police were eventually able to identify Constance Trimble as the person who made the May 22nd telephone call. Trimble was Reed‘s girlfriend and the mother of his child. Trimble was arrested in October 1970 and, after a 1972 jury trial, she was acquitted of Sackett‘s murder. At her trial, Trimble testified that she had been told the telephone call was being made as a ruse to set up Gerald Starling for a drug bust in retaliation for Starling having allegedly threatened Trimble‘s family. Trimble refused, both during and after her trial, to identify the person who asked her to make the call. As a result, she was held in contempt of court and remained in jail for a period of time after her acquittal.
Further investigation revealed that just after midnight two nights before the shooting, Saint Paul police went to 867 Hague as a result of a similar medical emergency call. On that occasion, officers arriving at the 867 Hague address parked at the rear of the house, and, when there was no response to the officers’ knocking, the call was written off as unfounded.
In October 1970, Reed and Clark, along with Horace Myles, were involved in an attempted armed bank robbery in Omaha, Nebraska. An off-duty police officer, working as a security guard at the bank, was shot by Myles when the officer tried to thwart the robbery. Reed and Clark also fired weapons during the robbery attempt. Clark was arrested for the attempted robbery 10 days later. Reed was arrested roughly two weeks after Clark at an acquaintance‘s apartment in Minneapolis. The police found Reed lying on a bed, with a handgun under the bed within his reach. In Reed‘s pants pocket the police found a note suggesting that Reed was planning to hijack an airplane and a to-do list for the hijacking. Reed hoped to use the hijacking as a means to gain the release of Trimble, Clark, and Gary Hogan, a friend of Reed‘s who was in jail on unrelated charges. The note demanded publicity for the Black Panther Party and $50,000 in gold. A search of the apartment produced a handgun, a flare, a sawed-off shotgun, and a duffel bag holding walkie-talkies. In 1971, Reed and Clark were convicted of the attempted bank robbery in Omaha. State v. Reed, 188 Neb. 815, 199 N.W.2d 707 (1972); State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972). But neither Reed, Clark, nor anyone else was arrested in connection with Sackett‘s murder, and the investigation stalled.
In 1994, a television reporter interviewed Trimble about Officer Sackett‘s murder. Trimble refused to disclose who had asked her to make the false emergency telephone call. In 1995, the Saint Paul police contacted Trimble, at which time she admitted that Reed was with her when she made the call, but she refused to pro-
Following this subsequent investigation, a grand jury was convened to determine whether there was probable cause to indict Reed and Clark. Two witnesses who ultimately testified at Clark‘s trial also testified before the grand jury. In 2005, Reed and Clark were indicted for aiding and abetting each other (count 1) and for conspiring with each other (count 2) to kill Officer Sackett. A warrant upon indictment was issued for Clark‘s arrest, and Clark was taken into custody two days after the indictment. As noted earlier, Reed was tried first and was found guilty on both counts. We affirmed Reed‘s conviction on direct appeal. See State v. Reed, 737 N.W.2d 572, 590 (Minn.2007).
Clark went to trial on April 10, 2006. At Clark‘s trial, Donald Walker testified that he frequented the Inner City Youth League in the late 1960s and early 1970s. He also attended “so-called Black Panther Party meetings” at a neighborhood church, at which Reed and Clark would make intense, motivational statements of hatred toward white people, the government, and the police. Walker did not recall any times when the discussions turned to plans of violence or to killing police officers, but he did testify that he “transported” a single-shot, bolt-action rifle for Reed and Clark on at least two occasions when he gave them a ride. At times, Walker‘s trial testimony conflicted with his grand jury testimony regarding the number of “Black Panther Party meetings” he attended and the number of times he gave Reed and Clark a ride when they were carrying a rifle.
Anthony Foster also testified that he attended the United Black Front meetings. Foster stated that at the meetings Reed talked about killing a police officer to attract national attention in order to get permission to start a Black Panther chapter in Saint Paul. He further testified that Reed, Arthur Harper, and Arling Reese came to his apartment a few days after Officer Sackett was shot and that Reed would not respond to his attempts to discuss the shooting. The defense asserted that Foster‘s testimony may not have been entirely accurate, as both Reese‘s trial testimony and records introduced at trial indicate that Reese was incarcerated in Moorhead, Minnesota, from April through August 1970, and, therefore, Reese could not have been present at Foster‘s apartment a few days after the shooting.
Trimble‘s account of events differed in some respects from her statements to investigators, her testimony at her trial, her testimony to the grand jury, and her testimony at Reed‘s and Clark‘s trials. At Clark‘s trial, she testified that Reed drove her directly to Clark‘s house after she placed the false emergency telephone call, that Clark was waiting outside the back door of his house when they arrived, and that she and Reed remained there for five to seven minutes before driving home. At her own trial, Trimble testified that she went to buy cigarettes after making the call and that Reed was home asleep when she returned. At both Reed‘s and Clark‘s trials, she testified that neither Reed nor Clark left Clark‘s house while she was there. During her grand jury testimony, however, Trimble testified as follows:
Q: [A]fter you met up with Larry Clark who was standing in the back of his house, where did you go?
A: I went into the house . . . I went into the restroom.
. . . .
Q: Could [Clark and Reed] have left?
A: They could have, you know. Now that I think about it, they could have, you know.
Trimble did not provide any explanation for the inconsistencies in her statements.
Joseph Garrett, the “minister of information” for the United Black Front, also testified at Clark‘s trial. Garrett testified that Reed and others at the United Black Front meetings advocated protecting themselves from the police “by any means necessary.” Garrett further testified that he, together with Clark and others, agreed with that proposition. According to Garrett, members of the United Black Front “tended to be armed.” He testified that he had access to several bolt-action, 30-caliber rifles that he had stolen and later sold, but, as far as he knows, none of the stolen rifles went to anyone else in the group. Garrett testified that Reed had approached him a few weeks before Sackett‘s murder about being involved in “bring[ing] down the first pig.” Garrett understood this to mean killing a police officer. He testified that Reed knew of Garrett‘s combat experience in Vietnam and expert marksmanship. He also testified that he did not answer Reed at the time and never spoke with Reed about it after that.
Garrett also testified that a week before the Sackett shooting he felt he was being harassed by the police during a traffic stop and told the officers involved to “watch the rooftops.” There was testimony from other witnesses that the officers took the comment to mean “beware of snipers.” At least two police officers saw Garrett in the crowd that gathered after the shooting. The officers placed him in a squad car and asked about his “watch the rooftops” remark. Garrett said the rooftop comment was made in anger and that he knew nothing about the shooting. Garrett testified, however, that he also told the police about out-of-state Black Panther sympathizers in an effort to “throw [the police] off track.” According to Garrett, after he got out of the squad car, the “sergeant in arms” of the United Black Front, Kelly Day, who also was in the crowd, told Garrett to keep his mouth closed.
Arthur Harper testified that he, Day, Reed, and Clark often socialized at Day‘s apartment, located at 844 Dayton Avenue. The apartment was less than two blocks from where Officer Sackett was shot. According to Harper, Reed often made statements, with which Clark agreed, that the police were the oppressors and needed to be taught a lesson. Harper further testified that he was with Reese when he saw Reed and Clark leave Day‘s apartment at about 11:30 p.m. the night of Sackett‘s murder and that, at the time, Reed appeared to be carrying a bolt-action rifle. As noted earlier, it appears Reese was in jail at that time. Harper also testified that he heard a gunshot 15 to 20 minutes later and that a few minutes later he walked south on Selby, in the direction the police cars were heading. Harper further testified that he joined Day, who was standing in front of the Inner City Youth League, and they were joined by Reed sometime later.
The State also presented evidence regarding bombings that occurred around the time of Officer Sackett‘s shooting. Sergeant Russell Bovee testified that Gary Hogan was convicted for the August 1970 bombing of Dayton‘s department store in downtown Saint Paul. According to Bovee, the bombing involved two bombs: the
Neither Clark nor Reed testified at Clark‘s trial. Clark called 21 witnesses to testify for the defense. In large part, the testimony elicited from the defense‘s witnesses included statements regarding (1) the monetary and penal incentives given to some of the State‘s witnesses; (2) the lack of evidence linking Clark to the crime scene; (3) the criminal activities of other members of the United Black Front and of people involved in the Inner City Youth League; (4) alternative perpetrators; (5) bullet trajectories; and (6) the social history of the era and the Black Panther Party.
At trial, the district court, over the defense‘s objection, allowed evidence of Clark‘s and Reed‘s 1971 bank robbery convictions to prove intent and motive to shoot a police officer. The court gave a limiting instruction to the jury about the use of this other crimes evidence both immediately before the jury heard the testimony about the convictions and at the end of Clark‘s trial. Clark also objected to the court‘s jury instruction on conspiracy. Clark argued that the jury should be instructed that the State must prove he conspired with Reed to shoot a police officer because that was how the indictment read, rather than having to prove simply that he conspired with an unknown person to shoot an officer.
The jury found Clark guilty on both counts of the indictment. The district court then convicted him of aiding and abetting and sentenced him to life in prison. Clark argues on this direct appeal that (1) an assistant county attorney is not authorized by law to frame an indictment before the grand jury; (2) the district court erred in failing to instruct the jury that certain witnesses were accomplices as a matter of law; (3) the evidence is insufficient to support the jury‘s verdicts; (4) the court erred when it instructed the jury that the State was not required to prove that Reed was Clark‘s conspirator or accomplice; and (5) it was error for the court to have admitted evidence of Clark‘s 1971 bank robbery conviction.
I.
We first address Clark‘s argument that his conviction should be reversed and the indictment should be dismissed under
Whether Minnesota law permits an assistant county attorney to attend the grand jury meeting and frame the indictment requires us to construe a number of statutes, which we do de novo. Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 732 (Minn.2005). The object of statutory interpretation is to determine and effectuate legislative intent. State v. Zeimet, 696 N.W.2d 791, 793 (Minn.2005). We construe statutes to avoid absurd results. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 278 (Minn.2000). “Statutes relating to the same subject are presumed to be imbued with the same spirit and to have been passed with deliberation and full knowledge of all existing legislation on the subject and regarded by the lawmakers as being parts of a connected whole.” juste v. Hennepin County Sanatorium Comm‘n” cite=“240 Minn. 407” pinpoint=“414” court=“Minn.” date=“1953“>Kaljuste v. Hennepin County Sanatorium Comm‘n, 240 Minn. 407, 414, 61 N.W.2d 757, 762 (1953). We also construe statutes as a whole and “must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Am. Family Ins. Group, 616 N.W.2d. at 277.
Minnesota Statute § 628.63 requires that “the county attorney shall attend [the grand jury] for the purpose of framing indictments or examining witnesses....” ” ‘Shall’ is mandatory.”
Minnesota Statute § 628.63 was first enacted by the territorial legislature. Knowing that section 628.63 provided for the county attorney‘s presence before the grand jury for the purposes of framing the indictment and examining witnesses, the state legislature subsequently enacted
To support his arguments, Clark relies on State v. Frink, 296 Minn. 57, 206 N.W.2d 664 (1973), but we conclude that this reliance is misplaced. In Frink, we analyzed
For all the foregoing reasons, we hold that the fact that an assistant county attorney attended the grand jury meeting and framed the indictment against Clark does not render Clark‘s indictment and conviction legally deficient such that the indictment must be dismissed and the conviction overturned.
II.
Clark next claims that his conviction should be reversed and that he should receive a new trial because Trimble was an accomplice whose testimony at trial was not corroborated. At his trial, Clark did not request an accomplice instruction nor did he object to the admission of Trimble‘s testimony on those grounds.
Under Minnesota law, a criminal conviction cannot be based on the uncorroborated testimony of an accomplice.
Failure to Give Accomplice Instruction
We first consider whether the district court erred in failing to instruct the jury on accomplice testimony. Because Clark failed to either ask for or object to the absence of such an instruction, our review of this issue is governed by the plain error analysis. See State v. Reed, 737 N.W.2d 572, 584 (Minn.2007). Therefore, we must determine whether the court committed an error, whether the error was plain, and whether the error affected
In 1972, a jury acquitted Trimble of first-degree murder in the shooting death of Officer Sackett. Thus, Trimble could not, consistent with the Double Jeopardy Clause of the Constitution, again be indicted and tried for that crime. But as we recognized in State v. Reed, conspiracy to commit first-degree murder is not a lesser-included offense of first-degree murder. 737 N.W.2d at 583. Accordingly, we recognized that Trimble “could theoretically be charged with conspiracy to commit murder, the same crime of which Reed has been convicted,” and that she therefore “could reasonably be considered an accomplice.” Id. Like Reed, Clark was also convicted of conspiracy to murder Officer Sackett. Thus, as in Reed, a jury could reasonably conclude that Trimble is an accomplice in this case.
Under the plain error analysis, we generally consider an error to be “plain” if it “contravenes case law, a rule, or a standard of conduct.” State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). As noted above, we have unambiguously held that “trial courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice.” Strommen, 648 N.W.2d at 689. Because it was reasonable for a jury to consider Trimble to be an accomplice, we conclude that the district court committed an error that was plain by failing to instruct the jury on accomplice testimony.
The third prong of the plain error analysis requires us to consider whether an error affected the defendant‘s substantial rights. “[A]n error affects substantial rights when there is a ‘reasonable likelihood’ that the absence of the error would have had a ‘significant effect’ on the jury‘s verdict.” Reed, 737 N.W.2d at 585 (citation omitted). In Reed, we concluded that the failure to give the accomplice instruction did not affect Reed‘s substantial rights because “the weight of [the non-accomplice witnesses‘] collective testimony was sufficient to corroborate [Trimble‘s] testimony.” Id. But the State‘s evidence at Reed‘s trial was stronger than the State‘s evidence against Clark. Notably, at Reed‘s trial, Garrett, a trained sharpshooter, testified that Reed tried to recruit him for help in “bringing down the first pig“; Trimble testified that she and Reed made the false emergency telephone call; Foster testified that Reed‘s behavior shortly after the shooting was dejected and abnormal; and John Griffin testified that, in the early 1980s, Reed told him that “when [Reed] put a bead on that officer * * * he felt powerful,” but “when he seen the bullet hitting him, he said he never felt more f[* * *]ed up in his life.”1 Id. at 578-79, 585 (third alteration added). Without this evidence, the State‘s case against Clark was necessarily more dependent on Trimble‘s testimony; at the same time, the evidence available to corroborate her testimony was weaker. Therefore, we conclude that the district court‘s failure to instruct the jury on accomplice testimony affected Clark‘s substantial rights. We also conclude that reversal of Clark‘s conviction
Corroboration
The foregoing conclusion does not end our inquiry. The dissent links two of Clark‘s arguments—that Trimble‘s testimony is not corroborated and that the evidence presented is insufficient to sustain his convictions—and concludes that no reasonable jury could have found that Trimble‘s testimony was corroborated. Viewing the remaining evidence as being insufficient to sustain Clark‘s conviction, the dissent then concludes that we must reverse outright.2 Therefore, we proceed to determine whether a reasonable jury could conclude that Trimble‘s testimony was corroborated.
Because the accomplice testimony rule is based on the fear of self-serving dishonesty by accomplice witnesses, see Shoop, 441 N.W.2d at 479, we have long held that evidence is sufficient to corroborate an accomplice‘s testimony “when it is weighty enough to restore confidence in the truth of the accomplice‘s testimony,” Sorg, 275 Minn. at 5, 144 N.W.2d at 786; accord State v. Scruggs, 421 N.W.2d 707, 713 (Minn.1988). This burden is met when the defendant is linked to the alleged crime by corroborating evidence that “in some substantial degree tends to affirm the truth of [the accomplice‘s] testimony and to point to the guilt of the defendant.” State v. Rasmussen, 241 Minn. 310, 313, 63 N.W.2d 1, 3 (1954); accord Sorg, 275 Minn. at 5, 144 N.W.2d at 786; State v. Mathiasen, 267 Minn. 393, 398, 127 N.W.2d 534, 538 (1964). The precise “quantum of corroborative evidence needed necessarily depends on the circumstances of each case,” but corroborative evidence does not need to be suffi-
In determining whether an accomplice‘s testimony is corroborated, “[t]he defendant‘s entire conduct may be looked to for corroborating circumstances.” Scruggs, 421 N.W.2d at 713. “Circumstantial evidence may be sufficient to corroborate the testimony of an accomplice.” Rasmussen, 241 Minn. at 313, 63 N.W.2d at 3; accord Scruggs, 421 N.W.2d at 713. Relevant facts that may be used to corroborate an accomplice‘s testimony and link the defendant to the crime include: participation in the preparation for the criminal act; opportunity and motive; proximity of the defendant to the place where the crime was committed under unusual circumstances; association with persons involved in the crime in such a way as to suggest joint participation; possession of an instrument or instruments probably used to commit the offense; and unexplained affluence or possession of the fruits of criminal conduct. Sorg, 275 Minn. at 5, 144 N.W.2d at 786; accord Scruggs, 421 N.W.2d at 713.
During Clark‘s trial, the State introduced evidence that Reed and Clark were close friends and were both members of the United Black Front, that Clark was present at meetings where Reed advocated killing a police officer as part of an attempt to bring a Black Panther chapter to Saint Paul, that Clark expressed agreement with these statements, and that both Reed and Clark made statements of hatred toward the government and the police in an “intense” and “pumped up” atmosphere. Additionally, the State introduced evidence that on multiple occasions before the shooting, Reed and Clark had been seen in possession of a single-shot, bolt-action rifle like the one used to kill Officer Sackett. The evidence also showed that Clark‘s house was located only 102 feet from the place where Officer Sackett was killed and was in the direction from which the fatal shot was fired. At approximately 11:30 p.m.—one-half hour before the shooting—Reed was seen carrying a rifle and walking with Clark toward Clark‘s house.3 Voice-print analysis established that Trimble placed the emergency call that led to the shooting from a public telephone located approximately one block from the crime scene. Finally, the State introduced evidence of a bank robbery in which both Reed and Clark participated and during which a off-duty police officer was shot.
This evidence points to Clark‘s guilt by suggesting that Reed and Clark shared a motive for killing Officer Sackett, placing the two men in proximity to the crime scene under unusual circumstances, placing them in possession of a weapon consis-
The dissent‘s conclusion that Trimble‘s testimony was uncorroborated “as a matter of law” is based on the fact that specific statements during Trimble‘s testimony were not corroborated by outside evidence. For example, despite conceding that “the voice print analysis evidence seems to corroborate Trimble‘s testimony that she made the false emergency call,” the dissent states that “[the voice-print analysis] does not directly or circumstantially corroborate her claim that Reed asked her to make the call or any of her other testimony.” The dissent also notes in two places that the evidence in this case does not corroborate Trimble‘s testimony “that there was no rifle in the car, that she and Reed drove to Clark‘s house after she made the phone call, and that Clark was standing outside his back door when they arrived.” But by focusing so narrowly on whether the evidence corroborated specific statements during Trimble‘s testimony, we believe that the dissent departs from the principles that have guided our analysis of accomplice-testimony corroboration since we decided Rasmussen, 241 Minn. at 313, 63 N.W.2d at 3, over 50 years ago. The dissent‘s narrow focus would also reverse our longstanding rule by requiring the introduction of independent evidence to prove every aspect of the accomplice‘s testimony that is probative of the defendant‘s guilt.
Finally, we address the dissent‘s assertion that we have “retreated on our longstanding requirement that in order for evidence to corroborate an accomplice‘s testimony it must have both some tendency to affirm the truth of the accomplice‘s testimony and at the same time point to the defendant‘s guilt.” We disagree with the dissent‘s view of our precedent as requiring that a single piece of corroborating evidence satisfy both corroboration requirements. Rather, we read our precedent as requiring that the evidence as a whole must both affirm the truth of the accomplice‘s testimony and point to the defendant‘s guilt.4
For all the foregoing reasons, we conclude that a reasonable jury could have found that the corroborating evidence was sufficient to restore confidence in the truth of Trimble‘s testimony.
Sufficiency of the Evidence
Clark argues that the evidence presented at his trial was insufficient to support the jury‘s guilty verdicts of aiding and abetting first-degree premeditated murder and conspiracy to commit first-degree premeditated murder. In Burks v. United States, the United States Supreme Court held that “[t]he Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” 437 U.S. 1, 11, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Accordingly, where the evidence at a trial was “legally insufficient” to support a conviction, “the only ‘just’ remedy * * * is the direction of a judgment of acquittal.” Id. at 18, 98 S.Ct. 2141. Thus, even though we conclude that Clark‘s conviction must be reversed based on the district court‘s failure to instruct the jury on accomplice testimony, we must also address Clark‘s sufficiency argument to determine whether the appropriate remedy is to remand for a new trial or a judgment of acquittal.
“When reviewing a claim of evidentiary insufficiency, we view the evidence in the light most favorable to the verdict and assume that the factfinder disbelieved any testimony conflicting with that verdict.” State v. Leake, 699 N.W.2d 312, 319 (Minn.2005); accord State v. Sanchez-Diaz, 683 N.W.2d 824, 831 (Minn.2004) (“The court views the evidence in the light most favorable to the verdict and assumes that the fact finder believed the state‘s witnesses and disbelieved any contrary evidence.“). We will not reverse a conviction if, “giving due regard to the presumption of innocence and the prosecution‘s burden of proving guilt beyond a reasonable doubt, the jury could have found the defendant guilty of the charged offense.” Leake, 699 N.W.2d at 319; accord Sanchez-Diaz, 683 N.W.2d at 831 (“When reviewing a claim of insufficient evidence, this court‘s inquiry is limited to whether the fact finder could have reasonably concluded that defendant was guilty beyond a reasonable doubt.“). We have said that “[c]ircumstantial evidence is entitled to the same weight as any other evidence,” but in order to sustain a conviction, the circumstances proved must be “consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis other than guilt.” Leake, 699 N.W.2d at 319; see also State v. Johnson, 173 Minn. 543, 545-46, 217 N.W. 683, 684 (1928).
The first count for which the jury found Clark guilty is aiding and abetting first-degree premeditated murder. A person is liable for aiding and abetting a crime if he “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”
The jury also found Clark guilty of conspiracy to commit first-degree premeditated murder. A person is guilty of conspiracy if he “conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy.”
The State‘s theory of Officer Sackett‘s murder is that on the night of the shooting, Reed and Clark walked to Clark‘s house, where they stored the murder weapon. Reed then picked up Trimble, drove her to the public telephone booth where she made the false emergency call to lure a police officer to the scene, and then returned to Clark‘s house. Either Reed or Clark retrieved the murder weapon, left the house, and shot Sackett. The shooter then returned to the house, and Reed drove Trimble home.
At Clark‘s trial, Arthur Harper testified that Reed was seen carrying a rifle and walking with Clark toward Clark‘s house approximately one-half hour before Officer Sackett‘s murder. Voice-print analysis showed that, shortly before the shooting, Trimble made a false emergency call from a public telephone booth on the corner of Victoria Street and Selby Avenue. According to Trimble‘s testimony,5 Reed then drove her to Clark‘s house, which was only one block away. When they arrived, Clark was standing outside waiting to meet them. Although Trimble testified that she did not see either Reed or Clark leave the house, her grand jury testimony indicated that she went into the house to use the restroom and that the two men could have left the house during that time. Trimble also testified that she did not see a rifle in the car.
The State‘s evidence showed that Officer Sackett was shot with a 30-caliber, bolt-action rifle, that Reed and Clark had been seen in possession of a similar weapon on multiple occasions in the months before the murder, that Clark‘s house was located approximately 102 yards from the murder scene, which is within the range of a rifle like that used in the murder, and that Clark‘s house was located in the general direction from where the fatal shot was fired. Finally, the State‘s evidence showed that Reed and Clark were close friends and that they shared a common motive for the shooting—Reed had previously advocated killing a police officer as part of an attempt to bring a Black Panther chapter to Saint Paul, and Clark had openly agreed with those views.
The dissent concludes that Harper‘s testimony that he saw Reed carrying a rifle and walking with Clark before the shooting is not sufficient to support a conviction. It reaches this conclusion based on the fact that, because “Reed and Clark had been seen together on a number of occasions with a rifle in their possession without anyone being shot, it is equally possible to infer that Clark did not know of Reed‘s plan to shoot a police officer that evening.” The dissent also states that “[t]here is no available evidence placing Clark and Reed together again that night. Nor is there evidence placing Clark at or near the scene of the shooting at the time of or after the shooting.” Therefore, the dissent asserts that “it cannot be said that the fact that Reed and Clark were seen together with a rifle the night Officer Sackett was shot leads unerringly to the conclusion that an agreement to conspire existed between Reed and Clark.”
The dissent is correct when it asserts that the fact that Reed and Clark were seen together with a rifle in Reed‘s possession one-half hour before the shooting would not be sufficient to support either an aiding and abetting or a conspiracy conviction. But we conclude that Trimble‘s testimony is sufficient to fill the gaps in the chain of evidence pointing to Clark‘s involvement with Reed in a plan to shoot a police officer. Trimble‘s testimony places Reed and Clark together in the area where the fatal shot was fired and, if the jury credited her grand jury testimony, this gave the two men an opportunity to commit the crime. Trimble‘s testimony also leads to an inference that Reed and Clark had arranged to meet behind Clark‘s house after the false emergency call was placed, and that the two men had stored the murder weapon at Clark‘s house before the false emergency call or the shooting. Viewing the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found beyond a reasonable doubt that Reed and Clark agreed to murder a police officer and that Clark‘s actions were intended to further the commission of that crime. Accordingly, we conclude that the evidence presented at Clark‘s trial when viewed in a light most favorable to the State was sufficient to support the jury‘s verdicts of aiding and abetting first-degree premeditated murder and conspiracy to commit first-degree murder.
Remedy
Having concluded that the district court committed plain error when it failed to instruct the jury on accomplice testimony, that Clark was substantially prejudiced by the error, and that the evidence is sufficient to corroborate Trimble‘s testimony and to support the jury‘s verdicts, the appropriate remedy is to remand for a new trial.
III.
Because several of the remaining issues raised by Clark on appeal are likely to recur upon retrial, we address these issues to offer guidance to the district court and in the interest of preserving judicial resources. Clark asserts the district court erred when it instructed the jury that the State was not required to
On or about the 22nd day of May 1970, in Ramsey County, Minnesota, the defendants, Ronald Lindsey Reed and Larry Larue Clark, aiding and abetting and being aided and abetted by each other, did wrongfully and unlawfully cause the death of James Sackett, with premeditation and with the intent to cause the death of James Sackett or another person.
With respect to the conspiring, the indictment read:
On or about the 22nd day of May 1970, in Ramsey County, Minnesota, the defendants, Ronald Lindsey Reed and Larry Larue Clark, did wrongfully and unlawfully conspire with each other to commit the crime of Murder in the First Degree, and in furtherance of this conspiracy, one of the defendants, did an overt act, namely caused another to make a telephone call designed to summon one or more police officers to a particular location.
With respect to aiding and abetting, the district court instructed the jury on the accomplice charge that the State needed to prove Clark aided and abetted “with another or otherwise procured the commission of a crime by another person, whether or not that person is named in the indictment or event identified.” With respect to the conspiracy charge, the court instructed the jury that the State needed to prove that “the defendant conspired with at least one other person to commit the crime of murder in the first degree.” The court further instructed that, “It makes no difference whether that person is named in the indictment. You do not have to find that the other person charged in the indictment was a member of the conspiracy.” Clark objected only to the instruction related to the accomplice offense but argues that we can remedy the plain error resulting from the instruction given for the conspiracy offense as well.
We addressed this issue in Reed when we considered and rejected Reed‘s challenge to the same jury instructions that were given at his trial. See Reed, 737 N.W.2d at 584. Clark argues that the issue is different in his case because he, unlike Reed, put on a defense at trial. According to Clark, part of his defense involved calling 21 witnesses to show that his friendship with Reed was not as close as alleged by the State. Clark claims that the change in jury instructions gave him no chance to respond to the argument that he may have been an accomplice or a co-conspirator with someone other than Reed, in violation of his due process rights. Clark, like Reed, relies on a Rhode Island Supreme Court case, State v. DeSanto, 603 A.2d 744, 746 (R.I.1992), to support his proposition that the joint indictment made the identity of his co-conspirator or accomplice an essential element of the offense. We rejected the Rhode Island case in Reed as neither binding on our court nor persuasive. Reed, 737 N.W.2d at 580.
In Reed, we determined that Reed did not show how the change in jury instruction language prejudiced him and concluded there was no reversible error in the instructions. Id. at 581. As we stated in Reed, “[w]e cannot see how his defense would have changed had the indictment included unnamed co-conspirators from the outset.” Id. The State presented little or no evidence at trial connecting Clark to a co-conspirator or accomplice other than Reed. Clark has not shown how his de-
IV.
Finally, Clark argues that it was error for the district court to admit as Spreigl evidence his 1971 conviction for the Omaha bank robbery.6 He claims the conviction is irrelevant because it bears no relationship to the charged offenses. Further, he argues that the probative value of the evidence is outweighed by the potential for unfair prejudice.
The State responds that the district court reserved its decision until the end of the State‘s case and then found the conviction admissible for the limited purposes of proving intent and motive. The State also argues that any potential prejudicial effect was minimized by the limited evidence of the robbery actually presented to the jury and by the court‘s cautionary instruction that was more restrictive than the standard
We review evidentiary rulings for an abuse of discretion. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998). Generally, evidence is admissible only if it is relevant.
the evidence should be admitted, the Spreigl evidence should be excluded. Id. at 685.
In Ness, we indicated that the district court “should not simply take the prosecution‘s stated purposes for the admission of other-acts evidence at face value.” Id. at 686. The court should “look to the real purpose for which the evidence is offered, and ensure that the purpose is one of the permitted exceptions to the rule‘s general exclusion of other-acts evidence.” Id. In this case, the State asserts that the “evidence goes to intent,” arguing that Clark intentionally shot to kill, wound, or maim during the robbery, which evidence was offered to prove that Clark had the specific intent to kill a police officer.8
We do not see how the intent involved in the bank robbery proves intent in killing an officer. The intent to kill a police officer in order to bring a Black Panther Party chapter to Saint Paul is different from the intent involved in returning fire during a bank robbery when the criminal objective is to commit a robbery and facilitate an escape. Admitting the evidence on the basis of intent was improper.
The question of whether the bank robbery conviction was admissible to prove motive also was presented to the district court. Clark disputed any connection between the bank robbery and the United Black Front‘s activities to raise money for the Black Panther Party and asserts that no evidence in the record supports the State‘s argument. He contends that the court erred in admitting the evidence based on motive.
We conclude that the Spreigl evidence was admissible for the limited purposes of showing absence of mistake or identity as joint actors. In State v. Nelson, 632 N.W.2d 193, 204 (Minn. 2001), we concluded that Spreigl evidence in that case was relevant to show that the defendant and his accomplice “worked together closely to coordinate their criminal activity.” Id. We noted the other-crimes evidence was important to the State‘s case “because it was not only material but also the most relevant evidence” of the accomplice relationship. Given the circumstantial nature of the evidence linking Clark to Officer Sackett‘s murder and the credibility issues raised with respect to the witnesses providing that circumstantial evidence, evidence that Reed and Clark worked together during the bank robbery supports the State‘s contention that they worked together in killing Sackett.
Moreover, any concerns we might have had over the potential for prejudice are minimized due to the district court‘s cautionary instruction to the jury regarding the permissible use of Spreigl evidence. We presume that jurors follow the court‘s instructions. State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002); see also Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). Thus, the court‘s detailed instruction to the jury limited the potential for prejudice and mitigated any possibility that the evidence of Clark‘s bank robbery conviction suggested he had a propensity to commit criminal acts. On the admissibility of the Spreigl evidence, we conclude that Clark is not entitled to any relief.
Reversed and remanded for a new trial.
MAGNUSON, C.J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
PAGE, Justice (dissenting).
DISSENT
I respectfully dissent.
While I agree with the court that Clark‘s conviction must be reversed, I believe the court‘s decision to remand for a new trial is error. My review of the record leads me to the conclusion that the corroborating evidence relied on by the court is insufficient as a matter of law and therefore may not be used to support Clark‘s conviction. Because I further conclude that the remaining evidence, absent the accomplice testimony, is legally insufficient to support Clark‘s conviction, I would reverse Clark‘s conviction outright and not remand for a new trial.
Clark claims that his conviction should be reversed and that he should receive a new trial because Trimble was an accomplice whose testimony at trial was not corroborated. Clark did not request an accomplice instruction nor did he object to the admission of her testimony on those grounds. When a defendant fails to object to a trial court‘s erroneous omission of a jury instruction regarding accomplice testimony, our review is for plain error. State v. Reed, 737 N.W.2d 572, 584 (Minn. 2007). For there to be plain error, the trial court must have committed (1) an error, (2) that was plain, and (3) that affected the defendant‘s substantial rights. State v. Ramey, 721 N.W.2d 294, 298 (Minn. 2006). If each of these factors of the plain error test is met, we then consider the additional factor of whether the unobjected-to error needs to be addressed to ensure fairness and the integrity of the judicial process. Id. 302. An error is considered “plain” if it is “clear” or “obvious.” State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002) (citing United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)). If the error “contravenes case law, a rule, or a standard of conduct,” it usually is clear or obvious. Ramey, 721 N.W.2d at 302. Generally the defendant bears the burden of persuasion on the third factor. Olano, 507 U.S. at 734; Ramey, 721 N.W.2d at 301-02.
A conviction may not rest on uncorroborated accomplice testimony because such testimony is “inherently untrustworthy.” Strommen, 648 N.W.2d at 689; see also
The corroborating evidence does not have to be sufficient to support a conviction, but it must both (1) “affirm the truth of the accomplice‘s testimony” and (2) “point to the guilt of the defendant in some substantial degree.”1 Reed, 737
In Reed, we concluded that Trimble was an accomplice as a matter of law and that the admission of her testimony at trial without giving the jury an accomplice instruction was error that was plain. 737 N.W.2d at 582-83. For all of the reasons discussed in Reed, Trimble is also an accomplice as a matter of law in this case. As such, the trial court here committed an error, which was plain, when it failed to give an accomplice instruction. We further concluded in Reed, however, that the failure to give the accomplice instruction did not affect Reed‘s substantial rights “[g]iven the extent of corroborating evidence in the record.” Id. at 584-85. In reaching that conclusion, we looked at “the weight of [the non-accomplices‘] collective testimony.” Id. at 585. Notably, at Reed‘s trial, Garrett, a trained sharpshooter, testified that Reed tried to recruit him for help in “bringing down the first pig“; Trimble testified that she and Reed made the call; Foster testified that Reed‘s behavior shortly after the shooting was dejected and abnormal; and John Griffin testified that, in the early 1980s, Reed told him that “when [Reed] put a bead on that officer . . . he felt powerful,” but “when he seen the bullet hitting him, he said he never felt more f[***]ed up in his life.” Id. at 578-79, 585 (third alteration added).
At Clark‘s trial, Trimble testified that, at Reed‘s request, she placed the false emergency phone call on the night Officer Sackett was shot. Her testimony also placed
Although on the surface the voice print analysis evidence seems to corroborate Trimble‘s testimony that she made the false emergency call, the voice print analysis lacks any probative value on the issue of whether Trimble‘s testimony was truthful because she only admitted making the telephone call after the police confronted her with the voice print analysis. The fact that Trimble conceded a fact proven by independent tangible evidence can hardly be said to establish truthfulness. In addition, that evidence does not directly or circumstantially corroborate her claim that Reed asked her to make the call or any of her other testimony.2 Nor does it point to Clark‘s guilt to any degree, substantial or otherwise.
Even when viewed in a light most favorable to the verdict, none of the evidence affirms the truth of Trimble‘s testimony that there was no rifle in car, that she and
In addition, there was evidence that Clark and Reed were involved in the shooting of a police officer during the Nebraska bank robbery and that there was a false emergency call summoning police to 867 Hague Avenue two days before the shooting of Officer Sackett at 859 Hague. This evidence does not in any way affirm the truthfulness of any of Trimble‘s testimony.
There was also evidence that Clark was seen shortly before the shooting walking with Reed, who was carrying a rifle, in the direction of Clark‘s house and the location of the shooting. This evidence does not affirm the truth of any of Trimble‘s testimony. Indeed, notwithstanding the State‘s argument and the court‘s conclusion to the contrary, this evidence sheds no light on that testimony. On these facts, the use of what was seen by Harper to corroborate the testimony of Trimble about what was not seen by Trimble at a different time and in a different place for the purpose of supporting an inference to be drawn from Trimble‘s testimony creates an impossible hurdle for a criminal defendant to overcome. As there is no way for Clark to challenge what Trimble did not see, there is essentially no way to challenge the inference the State would have drawn from that evidence.
Additionally, it is worth noting, although certainly not dispositive, that none of the evidence relied on by the State puts Clark at home or with Reed at the time of the shooting or suggests that the rifle seen earlier was not in the car used in driving Trimble to make the phone call.3 Thus, the evidence relied on does not either directly or circumstantially “affirm the truth” of Trimble‘s testimony that there was no rifle in the car, that she and Reed drove to Clark‘s house after she made the phone call, and that Clark was standing outside his back door when they arrived.
Nor does any of the evidence when viewed in a light most favorable to the verdict point to Clark‘s guilt in some substantial degree. The court contends that the evidence “plac[es] the men in proximity to the crime scene under unusual circumstances.” See Sorg, 275 Minn. at 5, 144 N.W.2d at 786 (emphasis added). Here, while Harper claimed that he saw Reed and Clark walking toward Clark‘s house, that is hardly an unusual circumstance. In addition, the record contains evidence that it was not unusual for Reed and Clark to be seen together with a rifle present. While there is considerable evidence that Clark associated with Reed, none of this evidence suggests Clark jointly participated in, or even was aware of, a plan to shoot Officer Sackett on May 22, 1970. Further, although there is evidence Reed possessed a rifle, no one ever testified that Clark was in possession of the
Because I believe, as a matter of law, that Trimble‘s testimony lacks corroboration, I conclude that Clark‘s conviction cannot rest on that testimony. Given the nature of the remaining evidence, I also conclude that the failure to give the accomplice instruction affected Clark‘s substantial rights and that fairness and the integrity of the judicial process require reversal of Clark‘s convictions.
Even though none of the evidence discussed above both affirms the truth of Trimble‘s testimony and at the same time points to Clark‘s guilt in some substantial degree, the court concludes that a reasonable jury could conclude that Trimble‘s testimony is corroborated. In essence, the court has concluded that there is sufficient evidence in the record to corroborate Trimble‘s testimony, a conclusion with which I obviously disagree.4 Notwithstanding that conclusion, the court correctly concludes that reversal of Clark‘s conviction is required because the trial court‘s failure to give an accomplice instruction was plain error.
Having concluded that Clark‘s convictions must be reversed, the next question is whether we should remand for a new trial. The court concludes that we should. The answer to that question for me turns on whether, absent Trimble‘s testimony, there is otherwise sufficient evidence to sustain Clark‘s convictions. The general rule is that the
The trial error here was the failure to give the accomplice testimony instruction, which explains in relevant part that the jury
cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime, unless that testimony is corroborated by other evidence that tends to convict the defendant of the crime. Such a person who could be charged for the same crime is called an accomplice.
10 Minn. Dist. Judges Ass‘n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.18 (5th ed. 2006). On the surface, this error would appear to be the kind of ordinary trial error for which retrial would not be barred by double jeopardy. But the trial court‘s failure to give an accomplice instruction is not the only problem with the accomplice testimony. While it is true that the failure to give the instruction is an ordinary trial error, there is the further problem that as a matter of law Trimble‘s testimony is not sufficiently corroborated so as to be available to support Clark‘s conviction. Because Trimble‘s testimony is unavailable to support the conviction, we are left with a question of evidentiary sufficiency. That question is the same question we would have to confront if the accomplice instruction had been properly given, the defendant had been convicted, and on appeal we held that the accomplice testimony was insufficiently corroborated and therefore unavailable to support the conviction. Thus, under Burks, we must determine whether the available evidence as a whole is sufficient as a matter of law to affirm the conviction. For the reasons discussed below, I conclude that the evidence is not sufficient to sustain the conviction, and therefore outright reversal of Clark‘s conviction is required.5
When reviewing sufficiency of the evidence claims, our review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict.” State v. Hatfield, 639 N.W.2d 372, 375 (Minn. 2002). We give circumstantial evidence the same weight we give any other kind of evidence. Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004). However, “if a conviction is based on circumstantial evidence, a higher level of scrutiny is warranted.” Id. Like convictions based on other types of evidence, a conviction based on circumstantial evidence will be affirmed so long as “the circumstances are both consistent with the hypothesis that the defendant is guilty and inconsistent with any rational hypothesis except that of guilt.” Hatfield, 639 N.W.2d at 376 (citing State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997)). That is, the circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a
Conspiracy to Commit First-Degree Premeditated Murder
In order to convict Clark of conspiracy to commit first-degree murder, the State was required to prove, among other things, that Clark was part of a conspiracy. Under our law, “[w]hoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy” is guilty of conspiracy.
The State‘s theory of the case at trial was that on the night that Officer Sackett was shot, Reed, along with Clark, followed through with Reed‘s previously stated desire to kill a police officer. According to the State, Reed, carrying a bolt-action rifle, walked with Clark from Day‘s apartment to Clark‘s house, where they stored the rifle. Reed then picked up Trimble and drove her to make the false emergency phone call. Then Reed, along with Trimble, drove to Clark‘s house to retrieve the rifle, at which point either Reed or Clark or both left Clark‘s house and carried out the shooting of Officer Sackett. The shooter then returned to Clark‘s house after which Reed drove Trimble home.
According to the State, the evidence supporting Clark‘s conspiracy conviction includes evidence:6 (1) that Clark was present at group meetings at which Reed advocated killing a police officer; (2) of Clark‘s apparent agreement with Reed‘s statements about killing a police officer, self-defense, and black power; (3) that Clark made statements about black power and self-defense; (4) that Clark had a close relationship with Reed; and (5) that Clark was seen shortly before the shooting walking with Reed, who was carrying a rifle, in the direction of Clark‘s house and the location of the shooting. The State also argues that evidence of Clark and
All of the evidence that the State contends supports Clark‘s guilt is circumstantial. The question that must be answered is whether this circumstantial evidence when viewed in a light most favorable to the verdict points “unerringly” to Clark‘s guilt. I conclude that it does not. First, the evidence of Clark‘s presence at United Black Front meetings, his agreement with Reed‘s statements about killing a police officer, statements of his own about black power and self-defense, and Clark‘s close relationship with Reed, standing alone, does nothing more than suggest that Clark is guilty because of his association with Reed. Without more, this evidence is insufficient because “mere association with an individual engaged in an illegal enterprise does not make a person a conspirator.” United States v. Moss, 591 F.2d 428, 435 (8th Cir. 1979). Moreover, this evidence does not point unerringly to Clark‘s guilt or “exclude beyond a reasonable doubt any reasonable inference other than that of guilt.”
The strongest evidence against Clark is Harper‘s testimony that he saw Clark, along with a rifle-carrying Reed, leave Day‘s apartment walking in the direction of Clark‘s house and the location of the shooting. The State argues that the inference to be drawn from this evidence is that Reed and Clark were on their way to carry out the shooting. The State further argues that this evidence supports not only an agreement to shoot a police officer, but also action by the two men in furtherance of that agreement, which goes beyond mere association. However, based on other evidence in the record indicating that Reed and Clark had been seen together on a number of occasions with a rifle in their possession without anyone being shot, it is equally possible to infer that Clark did not know of Reed‘s plan to shoot a police officer that evening. This inference leads to a rational hypothesis other than guilt. Absent a showing that Clark had knowledge of Reed‘s plan, an agreement to be part of the plan cannot be inferred. Without other evidence that Clark knew of Reed‘s plan, the fact that Clark was seen in Reed‘s company shortly before the shooting becomes mere presence. See Mahkuk, 736 N.W.2d at 682. That conclusion is bolstered by the fact that, while there is evidence of Clark being in Reed‘s company approximately 15 to 30 minutes before Officer Sackett was shot, it is undisputed that Clark and Reed separated after Harper saw them leaving Day‘s apartment together and there is no available evidence placing Clark and Reed together again that night. Nor is there evidence placing Clark at or near the scene of the shooting at the time of or after the shooting. Indeed, while Reed, Day, Harper, and Garrett were seen immediately after the shooting near the scene, there is no evidence in the record that Clark was seen after Officer Sackett was shot, either with Reed or near the crime scene. Therefore, it cannot be said that the fact that Reed and Clark were seen together with a rifle the night Officer Sackett was shot leads unerringly to the conclusion that an agreement to conspire existed between Reed and Clark.
The State also suggests that Clark‘s guilt can be inferred from the proximity of Clark‘s house to 859 Hague, the location where Officer Sackett was shot, and 867 Hague, the location identified to which the police responded as a result of the un-
Finally, the State asserts that Reed‘s and Clark‘s convictions for the Nebraska bank robbery, which occurred five months after Officer Sackett‘s shooting and during which an off-duty police officer was shot, evidence Clark‘s intentional involvement in Officer Sackett‘s shooting. I will assume for purposes of argument that evidence of the bank robbery was properly admitted as Spreigl evidence. At trial, the State argued that the evidence that Clark and Reed were convicted of shooting with intent to kill, wound, or maim during the bank robbery was necessary to prove Clark was more than merely present at his house with Reed the night of the shooting. The State also argued that the bank robbery evidence was necessary to rebut suggestions that the State‘s witnesses lied at trial. The State‘s theory was that Reed and Trimble did not accidentally go from the phone booth to Clark‘s house the night Officer Sackett was shot and that Clark was not accidentally waiting outside his house when Reed and Trimble arrived. Given that Trimble‘s uncorroborated accomplice testimony putting Reed and Clark together at Clark‘s house near the time of the shooting is, as a matter of law, unavailable to support the conviction, the State‘s assertion that Clark was intentionally present at his house the night of the shooting is not supported by the record.
To the extent that part of the State‘s argument was or is that Reed‘s and Clark‘s intent to engage in a conspiracy to shoot Officer Sackett can be inferred from the intentional shooting of the police officer during the bank robbery, that argument fails. The fact that Reed and Clark, during a bank robbery, shot a security guard who happened to be an off-duty police officer after the guard attempted to thwart the robbery does not shed light on any agreement that Clark and Reed may have had five months earlier to shoot Officer Sackett for the purpose of obtaining permission to start a local Black Panther chapter. I therefore conclude that Clark‘s involvement in the bank robbery does not either by itself or in combination with the other evidence provide sufficient evidentiary support for Clark‘s conspiracy conviction.
Aiding and Abetting First-Degree Premeditated Murder
As for Clark‘s conviction for aiding and abetting first-degree premeditated murder, in order for Clark to be convicted of aiding and abetting first-degree murder, the State had to prove that Clark intentionally aided, advised, hired, counseled, or conspired with “or otherwise procure[d] the other to commit the crime.”
Moreover, Harper‘s testimony that Reed and Clark were seen leaving Day‘s apartment establishes nothing more than Clark‘s mere presence in Reed‘s company some 15 to 30 minutes before the shooting. That evidence does not, however, place Clark in Reed‘s company at the time of or after the shooting. Nor does it lead unerringly to the conclusion that Clark knew of the plan to shoot a police officer that night or that he played a knowing role in the plan. Further, the record is silent with respect to any action taken by Clark at anytime in furtherance of Officer Sackett‘s shooting. Finally, for the same reasons discussed above, the Nebraska bank robbery evidence is also insufficient to support the conclusion that Clark played a knowing role in the shooting of Officer Sackett or took any actions in furtherance of that crime.
Having concluded that Trimble‘s uncorroborated accomplice testimony cannot be used to support Clark‘s convictions and that the remaining evidence is insufficient to support Clark‘s convictions for conspiracy to commit first-degree murder and for aiding and abetting first-degree murder, I conclude that Clark‘s convictions must be reversed outright. As we stated in Bernhardt, on a record with more available evidence to support the conviction than is present here, “[i]f our standard on circumstantial evidence means anything, it means [that, in this case, Clark] cannot be convicted on this record that does not exclude other rational hypotheses.” 684 N.W.2d at 479. The same is true here.7