State v. Clark, No. A06-1476.

• Decision Date: 28 August 2008
• Docket Number: No. A06-1476.
• Citation: 755 N.W.2d 241
• Parties: STATE of Minnesota, Respondent, v. Larry Larue CLARK, Appellant.
• Court: Minnesota Supreme Court

755 N.W.2d 241

STATE of Minnesota, Respondent, v. Larry Larue CLARK, Appellant.

No. A06-1476.

Supreme Court of Minnesota.

August 28, 2008.

Lawrence Hammerling, Chief Appellate Public Defender, Gurdip Singh Atwal, Assistant State Public Defender, Office of the State Public Defender, Saint Paul, MN, for appellant.

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 Minn.Stat. §§ 609.185(a)(1) and 609.05, subd. 1 (2006) for the 1970 shooting death of Saint Paul Police Officer James Sackett. The district court convicted Clark for this crime and sentenced him to life in prison. In this direct appeal Clark raises five issues: (1) whether an assistant county attorney is authorized by law to frame an indictment before a grand jury; (2) whether the district court erred in failing to instruct the jury that certain witnesses were accomplices as a matter of law; (3) whether the evidence is sufficient to support the jury's verdicts; (4) whether 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) whether it was error for the court to have admitted evidence of Clark's 1971 bank robbery conviction. We conclude that: (1) an assistant county attorney may attend a grand jury for purposes of framing the indictment and examining witnesses; (2) that the court's failure to give sua sponte an accomplice instruction was plain error requiring remand for a new trial; (3) the evidence may be sufficient to support the conviction if the accomplice's instruction is corroborated; (4) the jury instructions are not required to match the indictment; and (5) the evidence of other crimes is relevant and not overly prejudicial. Therefore, we reverse Clark's conviction and remand for a new trial.

In 1969, appellant, Larry Larue Clark, and his friend, Ronald Reed, were teenagers living in the Selby-Dale neighborhood of Saint Paul, Minnesota. Clark and Reed frequented the Inner City Youth League, along with other young people from the neighborhood. Reed emerged as the leader of a group of these young people. According to Joseph Garrett, the group's self-described "minister of information," the group used the name United Black Front. At their meetings, the group discussed black-empowerment and self-protection from the police. At this time, the tension between the police and these young people was high. In the months preceding the murder of Saint Paul police officer James Sackett, at least two of the neighborhood's young men had been shot by the police. These shootings further increased the tension between members of the United Black Front and the police. As a result, the rhetoric at the United Black Front's meetings became more inflammatory. At Clark's trial there was testimony that Reed and others in the group wanted authority from the Black Panther Party to organize a chapter in Saint Paul and that members of the group thought that if they got national attention by killing a police officer it would increase their chances of success. Witness testimony indicated that Reed was a strong advocate for killing a police officer and that Clark agreed with Reed. Several of the group's members carried guns, and Reed and Clark were seen together with a bolt-action rifle on a number of occasions.

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 address had placed the emergency call or was involved in the shooting. They also concluded that the shot that killed Officer Sackett came from a southwesterly direction. A search of the surrounding area, however, produced no evidence of the shooting. Although no weapon or shell casing was found in the area, the police determined that the shot that killed Sackett probably came from a single-shot, bolt-action rifle. The police also determined that the emergency call that preceded the shooting was made from a telephone booth one block away at the corner of Selby Avenue and Victoria Street. No fingerprints or other useable evidence were found on or in the booth. At the time of the shooting, Clark lived at 882 Hague, which was approximately 102 yards west of 859 Hague on the south side of the street. The house at 859 Hague is located on the north side of the street.

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 provide any further information. In 2004, at her request, Trimble met with the police and disclosed for the first time that Reed had asked her to make the call and had given her a script to read. She told the police that Reed drove the two of them, along with their baby, to the telephone booth. She also stated that after the call was made, Reed drove them directly from the booth to Clark's house to get some marijuana.

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...