State v. Gruber

• Citation: 264 N.W.2d 812
• Decision Date: 31 March 1978
• Docket Number: No. 46679,46679
• Parties: STATE of Minnesota, Respondent, v. George Fred GRUBER, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 812

264 N.W.2d 812

STATE of Minnesota, Respondent, v. George Fred GRUBER, Appellant.

No. 46679.

Supreme Court of Minnesota.

March 31, 1978.

Syllabus by the Court

1. Defense counsel's failure to object to improper evidence at trial precludes him from raising the issue on appeal except where such failure to object was plain error, affecting the substantial and fundamental right of the accused.

The confession of an alleged accomplice, implicating the defendant, where the accomplice does not testify, is inadmissible against the defendant as hearsay and violates his right to confrontation under the Sixth Amendment to the United States Constitution.

2. One not the primary actor of a crime may be found guilty of aiding in the commission of the crime of manslaughter committed in the heat of passion.

3. Because there was insufficient evidence, as a matter of law, to find defendant guilty of aiding manslaughter committed in the heat of passion, the charge to the jury, including that offense, was error.

Defendant's conviction is reversed and the matter remanded to the district court with instructions to enter a judgment of acquittal.

C. Paul Jones, Public Defender, Rosalie E. Wahl, Spec. Asst. Public Defender, Phebe S. Haugen, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Keith M. Brownell, County Atty., Peter M. Banovetz, Asst. County Atty., Richard C. Hansen, Reg. Pros., Duluth, for respondent.

Heard before KELLY, TODD, and IRVINE, JJ., and considered and decided by the court en banc.

TODD, Justice.

George Gruber spent August 18, 1975, in the company of Ken and Phil Aubol. They drank most of the day. That evening, while all three were obtaining gasoline at a Duluth service station, Ken Aubol engaged in an argument with the owner, Michael Rocheleau, whom he shot and killed. Gruber was indicted for aiding in the commission of the crime of murder in the first degree. Over objections of defense counsel, the trial court submitted to the jury the lesser included offense of manslaughter. The jury found Gruber guilty of aiding in the commission of the crime of manslaughter committed in the heat of passion. Under the facts of this case, we reverse and remand to the district court with instructions to enter a judgment of acquittal.

Gruber had been acquainted with Ken and Phil Aubol for a number of years. He regarded Phil as his friend. On August 18, 1975, the three were together and engaged in extensive drinking. During this time, Ken Aubol asked Gruber if he still had a .32-caliber pistol. Gruber indicated he did and agreed to give it to Ken Aubol to satisfy an old indebtedness. The gun was delivered, fully loaded, with knowledge on Gruber's part that Ken Aubol would not hesitate to use the gun for illegal purposes.

During the course of their drinking, Ken Aubol also asked Gruber if he still had the keys to a 1970 Chrysler automobile Gruber had tested at a used car lot about a week earlier. Gruber, who had inadvertently failed to return the ignition keys, gave the keys to Ken Aubol and drove him to the used car lot. Ken Aubol stole the vehicle.

After the car theft, the three went to Shannon's Bar in Duluth. Ken Aubol drove the stolen Chrysler, and Gruber and Phil Aubol drove Gruber's flatbed truck. After spending some time in the bar, they drove across the street to the M & C gas station owned and operated by Rocheleau. Gruber had known Rocheleau for several years. Rocheleau was an argumentative person who particularly objected to anyone pumping their own gas at his station. Ken Aubol drove the Chrysler to one set of pumps and Gruber parked his truck at another set of pumps. Ken Aubol proceeded to pump his own gas. Rocheleau yelled and swore at him and took over the pumping of the gas. Gruber allowed Rocheleau to pump the gas into his truck. Gruber also raised the hood of his truck, checked the oil, and indicated to Rocheleau that he needed a quart of oil. Rocheleau and Ken Aubol continued their argument. Both went into the service station.

Gruber testified that he then heard a noise like a loud "pop." He ran to the door of the station and saw Rocheleau being shot in the head. Ken Aubol was in the station. Gruber stated that Phil Aubol, who had been in the cab of the truck, then rushed past him into the station. Gruber immediately returned to his truck and put the hood down, throwing the oil cap, which had been removed, onto the floor of the cab. As Gruber started to leave, Phil Aubol ran to the truck and jumped in. Phil Aubol was bleeding. Gruber proceeded toward Interstate Highway No. 35 but was stopped and arrested by police officers a few minutes later.

Gruber gave a statement at police headquarters consistent with his testimony at trial except that in his first statement he denied any knowledge about the stolen car or the gun. In his second statement, he admitted giving the gun and car keys to Ken Aubol.

Ken Aubol made an oral confession to Detective Richard Yagoda in which he admitted the shooting. Yagoda testified that Ken Aubol stated he had no intention of killing Rocheleau but did so solely as a result of their heated argument. He further stated to Yagoda that neither Gruber nor Phil Aubol knew anything about the killing. He did claim that Gruber was the person who assisted him in moving the body. At trial, defense counsel advised the court that Ken Aubol's statement was admissible at trial as an admission against penal interest and an exception to the hearsay rule. Defense counsel failed to recognize defendant's right of confrontation under the Sixth Amendment which would have allowed him to strike the accusatory portion of the oral confession. ¹

The state presented a number of witnesses whose testimony was inconsistent and conflicting. The first person to observe the argument between Ken Aubol and Rocheleau was Roger Carlson. Carlson stopped at the station to buy cigarettes shortly after 10:30 p. m. He witnessed the verbal altercation between Ken Aubol and Rocheleau and then drove across the street to buy his cigarettes at Shannon's Bar.

The first person in Shannon's Bar to become aware of the commotion at the station was Edna Illikainen. She testified that she was purchasing cigarettes from the cigarette machine by the front door of the bar when she heard a loud argument coming from the filling station across the street. She went to the doorway of the bar and saw Ken Aubol and Rocheleau arguing and heard them shouting obscenities at each other. She then saw Ken Aubol go into the station building and stand by the counter cabinet. Rocheleau then walked into the building, and as he did so, Ken Aubol raised his pistol and shot him. Illikainen stated she heard a second shot "right away," just after Rocheleau fell to the floor. She testified that she saw no one else in the station building at this time. She then yelled, "Somebody call the police because a man has gotten shot." No one else was looking at the station at this time. After she yelled, she was pushed from the door by other bar customers and did not see anything further until the car and truck pulled out of the station.

Bruce Brown was also a customer at Shannon's Bar that night. After hearing someone yell, "There're shooting, or they have a gun," or something to that effect, he went to the window of the bar and looked toward the station. He stated he saw only one person walk out of the gas station building and very nonchalantly get into the car and drive away. He saw no truck at this time, only a car. He stated he did not see anyone else at the station.

Fern Somers was also a witness called by the state. She testified that after her attention was drawn to the M & C station, she went to the front door of the bar. She saw the car and truck and the back of a man's head, but that was all. She did not hear any shots or recognize the man whose head she saw.

Irvin Wicklund was also in Shannon's Bar on the night of the killing. After hearing the commotion on the other side of the bar, and watching everyone look out into the street, Wicklund went out the front door and onto the sidewalk in front of the bar. He testified that he did not observe anyone in the station building, but stated that he saw one person outside the building heading for a car and two other people heading for another vehicle. He said that when they got to the vehicles, it seemed as though they paused and went back toward the building. He testified that the person who got into the car had a cloth in his hand and that perhaps one other person also had a cloth in his hand. He saw nothing else. He heard no shots and could not identify any of the men at the station.

Boyden McDonald, the bartender and owner of Shannon's Bar, said that he saw three men through the window of the bar standing outside the M & C station. He saw no one enter or leave the station building. He stated that it seemed as though "they stood there and talked for a few minutes, and then all of a sudden" they drove away. He did not hear any shots. McDonald recognized Gruber as one of the three men who had been in his bar earlier that evening.

Charles Carter testified that after hearing someone shout "the M & C is being robbed," he went to the door of Shannon's Bar and looked across the street toward the station. From that vantage he observed three men inside the station building. None of those men, according to Carter, was Rocheleau. Carter left the doorway and went to call the police. As he started dialing, he heard a shot. While telling the police the station was being robbed, he heard another shot. He put the phone down and went to the door to look once again. He saw two men come out of the building, walking at a slow and deliberate pace toward the truck. He testified that they then went back into the building. He then heard a third shot. He saw the two men come out again and get into the truck. He could not identify the defendant as one of the two...