State v. Parker, 41000

• Decision Date: 31 January 1969
• Docket Number: No. 41000,41000
• Citation: 282 Minn. 343,164 N.W.2d 633
• Parties: STATE of Minnesota, Respondent, v. John William PARKER, Appellant.
• Court: Minnesota Supreme Court

Page 633

164 N.W.2d 633

282 Minn. 343

STATE of Minnesota, Respondent, v. John William PARKER, Appellant.

No. 41000.

Supreme Court of Minnesota.

Jan. 31, 1969.

Syllabus by the Court

1. Defendant's presence prior to and during the commission of the brutal beating and robbery of the victim, which occurred while defendant and his accomplices were present in the victim's automobile, and defendant's total lack of objection to the action of his accomplices support his conviction.

2. It is well recognized in the law that a person may aid or abet without actively participating in the overt act.

3. The testimony of defendant and other witnesses appearing in his behalf was definitely weakened by the circumstances of the flight of defendant and his accomplices which took place when police authority appeared.

4. A party may not assign error because of omissions in instructions which do not go to fundamental law unless before the jury retires he has directed the court's attention thereto and stated distinctly the basis of his objections.

5. No prejudice was shown to have resulted from a lineup allegedly violative of due process where the victim had had ample opportunity to observe defendant prior to and during the commission of the crime and the identification testimony given at trial was not a product of the lineup.

C. Paul Jones, Public Defender, Frederick S. Richards, Minneapolis, Report A. Nicklaus, St. Paul, for appellant.

Douglas M. Head, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry W. McCarr, Jr., Asst. County Atty., Minneapolis, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS and ROGOSHESKE, JJ.

OPINION

NELSON, Justice.

Defendant, John William Parker, appeals to this court from a judgment of conviction of aggravated robbery. On January 10, 1967, he was sentenced to the Youth Conservation Commission for an indeterminate term or until thence discharged by due course of law or by competent authority.

On August 9, 1966, a complaint was filed in Hennepin County Municipal Court charging defendant and his accomplices, Calvin Earl Sam and Paul Peter Roy, with the commission of the crime on August 6, 1966, pursuant to Minn.St. 609.245 and 609.05. Defendant waived preliminary hearing and was bound over to Hennepin County District Court September 8, 1966. An information charging him with the crime was prepared and he was arraigned and entered a plea of not guilty to the charge of aggravated robbery on September 9. He was given a Rasmussen hearing (State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3) on November 21, 1966.

The victim, Larry Leventhal, was a 25-year-old senior at the University of Minnesota Law School who spent the summer of 1966 working on a research project at the University and did further research at the Legal Aid Center in downtown Minneapolis. He testified that after taking his date home on the evening of August 5 he parked one block away from Seven Corners, an area in close proximity to University of Minnesota properties, about 11 p.m. He visited three establishments frequented by college people where he watched an all-star football game and talked to students but did not have anything to drink. At the third establishment Larry 'danced a couple times' and then left for his automobile 'just after 1:00.'

While walking back to his car, Larry encountered a couple waiting on the corner for the light to change. The woman was an Indian, apparently in her twenties. The man was white and appeared to be a bit older. Larry talked with the couple for a minute or two. Since they did not have a ride, he offered them one. The couple asked Larry to come into their residence, but he first told them he would rather not because he wanted to get home. They insisted and he went in with them.

In the couple's apartment, Larry met the woman's sister and one of the two codefendants, Calvin Earl Sam. Larry had drunk not quite a half glass of beer when Sam stated that he wanted to get some hamburgers and asked Larry for a ride to the Band Box on Franklin Avenue. Larry agreed, but upon arrival there they found the restaurant closed. They turned around, heading back in the direction of the residence where he had met Sam. Larry expected to let him off and go on to his own home.

Three or four blocks away from the Band Box defendant was standing near the Franklin Theatre with a girl. Sam stated that he knew the man and Larry stopped the car. Sam, while seated in the automobile, talked to defendant for a few minutes, introducing Larry to defendant and the girl. Defendant said he knew of a party he would like to attend and asked Larry if he wanted to go to the party, Larry answering that he did not. Then he was asked if he would give them a ride to it and he agreed to do this. Defendant then got into the car.

Sam stated he wanted to pick up some beer before going to the party. They went to his apartment in the Seven Corners area and he went in and brought back a carton of beer, placing it in the back seat of Larry's convertible. Sam and defendant then directed Larry to the place where the party was supposed to be in progress. While en route defendant exclaimed, 'There's my brother. Why don't you stop so I can talk to him.' The brother was defendant's second codefendant, Paul Peter Roy. He came over to the automobile and talked. Defendant then asked Larry to give Roy a ride to the party. Roy got into the back seat and sat on the right side. Defendant and Sam were in the front seat. Roy also stated that he wanted some beer for the party and directed Larry to an address several blocks away, where he got out and returned to the automobile carrying a sack. Larry told them that he was anxious to get home.

The three passengers then gave Larry what he assumed were directions to the party. He said they told him, 'Take a left here, a right here,' and 'they kept leading me about for about maybe ten minutes or so. And I was getting quite frustrated.' Upon passing a certain place, the passengers said, 'This is it, but no one is here now. We'll have to come back in a few minutes.' Larry asked them to get out of the car, saying that he wished to leave. They said they had no place to go, but if they came back in five minutes they could go right in. Larry began driving again, but said that if no one was there in five minutes they would have to leave anyway.

He drove them about for a short time and then returned to the location of the party. He then stopped the car, informed them that they were there, and that he was going to have to go. The trio did not say anything. None of them moved to leave Larry's car. Suddenly, defendant grabbed Larry's arm and with his other hand grabbed for the keys to the car. Almost instantly the three of them piled onto Larry, holding him down while defendant wrestled the keys from his hand. All three of them were then hitting him at various points while Larry struggled to get away. He was struck over his body and pushed into the back seat by defendant and Sam. The accomplice, Roy, then proceeded to hold Larry in a 'hammerlock,' grabbing his wallet. Meanwhile, defendant assumed control of the car and took off, driving rapidly. In addition to Larry's billfold, which contained $30 to $35, his watch was also taken.

After a while Sam said, 'Let me drive,' and defendant shifted positions with him without stopping the car. Larry was being 'hit quite continually' and Roy had pulled out a beer can opener, held it tightly against Larry's throat, and was choking him with his hands. Larry pleaded with his assailants, but they responded with a number of blows. In an effort to escape, Larry told them that he had an apartment (which was untrue) and that he had about $500 in it which they could have. He tried a similar tactic later, saying he knew of a factory in north Minneapolis that had quite a bit of money on hand that he could get into. Apparently the trio did not believe him or did not think it was worth the risk.

Meanwhile, Roy kept saying things like, 'You know you are going to die, don't you?' or 'This is going to be curtains for you. I killed three guys and you are going to be the fourth.' Defendant said several times, 'Shoot him now,' and 'Let's get rid of him right now.' Defendant and his two cohorts continued to beat up on Larry. After hitting and kicking him, they grabbed one of the full beer bottles and 'cracked' him over the head. The bottle broke, shattering glass everywhere. Larry recalled being struck on the head at least three times. He finally concluded that his only chance might be to fake unconsciousness, but when he did so he was hit a number of times after he had gone limp. The blows were continuous and merciless.

Larry testified that the trio eventually said:

'* * * 'Well, he's out.' One of them said, 'Nobody could take that much and be conscious.' Roy continued holding me. He wasn't choking me any more or trying to hold me tightly. I was leaned up against him, and he had his hand placed down on my chest. The two in the front, Sam and Parker, were talking about trying to find some rope or something of this variety so they could possibly tie me up. The three of them in talking, their intention was to tie me up, stick me into a trunk, and then drive up--drive out in the country with me in the trunk and then go out when they were in the country to dispose of me. That was the word they used, whatever they meant.'

Finally, by feigning unconsciousness, Larry caused Roy to relax his grip and when the automobile came to a halt in Columbia Heights, in what seemed to be a fairly desolate area, Larry said, he suddenly 'flipped around my right arm quite quickly and jammed it into (Roy's) face, just slammed it and gouged it into his face.' With the same motion Larry propelled himself out of the window, feet first, and started running 'for all I was worth.' Somehow he had caught them off guard. They chased him but he continued to run as fast as he...