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June 29, 1984


Appeal from District Court, Hennepin County, Hon. Irving C. Iverson, Judge, Affirmed but remanded for resentencing on the second-degree murder conviction.

Considered and decided by the court en banc without oral argument.

The opinion of the court was delivered by: Simonett

1. Admission at trial of incriminating statements made by defendant to his jailer while in custody awaiting trial did not, under the totality-of-the-circumstances test, violate either defendant's fifth or sixth amendment rights. Neither did the trial court err with respect to other evidentiary rulings of which defendant complains.

2. Because the trial court gave no reasons for its durational departure in sentencing for the second-degree murder conviction and because the departure may have been barred on an impermissible Hernandez calculation, we remand for resentencing for this conviction.

SIMONETT, Justice.

This criminal appeal raises, as its main issue, whether incriminating statements made by the defendant while in jail were obtained in violation of his fifth, sixth, and fourteenth amendment rights. Several evidentiary rulings are also questioned, as well as the durational departure on the presumptive sentence given for defendant's second-degree murder conviction. We affirm, but remand for resentencing on the second-degree murder conviction.

On Wednesday evening, March 10, 1982, having received calls from concerned family members, the police entered the apartment of defendant-appellant Craig D. Jackson. They discovered the bodies of Ramona Yurkew, Jackson's girlfriend; Gwendolyn Johnson, another woman; and Jackson's two sons, ages 3 1/2 and 1 1/2 years old. Defendant was indicted, tried, and convicted for three counts of first-degree murder for killing his girlfriend and two sons, and for one count of second-degree murder for the killing of Gwendolyn Johnson. At the omnibus hearing, after the trial court denied defendant's suppression motions and refused to rule in advance on the admissibility of any Spreigl evidence, the defendant elected not to bifurcate his trial on issues of guilt and mental illness.

Autopsies disclosed that the cause of death in each case was manual strangulation. Gwendolyn Johnson had last been seen about 10 p.m. on Saturday, March 6, 1982. Ramona Yurkew had last been seen about 4 a.m. on Sunday, March 7, and the children had last been heard from when they talked by telephone with Jackson's mother about noon on Sunday, March 7. It was estimated the two children had died sometime before 10 p.m. on that Sunday and the two young women had died sometime before the children. Police investigation established that Jackson had been in and out of his apartment subsequent to the four deaths. Between the time of the killings and the discovery of the bodies on Wednesday, defendant Jackson had seen his mother once and had talked to her by telephone several times. Each time Jackson told his mother the children were either napping or with the babysitter.

On March 12, 1982, a criminal complaint was filed and an arrest warrant issued. On April 8, 1982, Jackson surrendered to police in Wichita, Kansas. He waived extradition and was returned to Minnesota. On May 19, 1982, his attorney served a written notice on the Hennepin County Sheriff and the Hennepin County Jail where Jackson was being held, specifically instructing the law enforcement agents not to question or permit questioning of Jackson. At the arraignment on June 22, Jackson entered pleas of not guilty and not guilty by reason of mental illness. Rule 20 mental status examinations were ordered and, because of concern over possible suicide, Jackson was placed in a special section of the jail adjacent to and in clear view of the office. One of the jailers assigned to this dorm area was Deputy Tim McGough.

Jackson had arrived at the jail sometime in April. Deputy McGough, of course, saw Jackson when he worked his shifts over the succeeding weeks and they would talk "about every day things, what's going on in the block * * *." On August 18, 1982, Jackson was examined by the court-appointed psychiatrist (to whom he apparently disclosed in confidence that he had killed the people found in his apartment). Late that afternoon, a new prisoner was brought in charged with multiple counts of homicide. Deputy McGough, learning that a television crew had been present when the new prisoner was brought in, decided to watch the 5:15 p.m. television news to learn more about the new prisoner. At this time Jackson was watching television in the day room of his special housing unit. Deputy McGough told Jackson to change the channel to the news program. As McGough and Jackson watched the news account of the murder allegations against the new prisoner, Jackson commented, "ou know they should bring back the death penalty for things like that." McGough responded that if they did and Jackson was found guilty he could be executed. Jackson said, "I know." McGough hesitated, then said, "You are the only one who knows who did it or not anyway." Jackson, in turn, responded, "I'm not the only one who knows, so does my psych and so does the prosecution's psych * * *. I know that I did it and I'm willing to take what is coming to me." McGough looked surprised and Jackson said, "Don't stare at me like that, you know I did it and so does everyone else."

Deputy McGough went to his office and made notes of what Jackson had said. Jackson then relayed a message through another jailer to McGough that he wanted to see him. McGough returned to Jackson's cell within 5 to 10 minutes, and Jackson then told him, "ou know, I'm not a bad guy at heart and that I didn't kill my wife. I'll do life for the others but I didn't kill my wife." (Apparently defendant was suspected of killing his wife whose body had been found in Iowa, but he was never charged for this.)

A. The first issue is whether the trial court erred in allowing into evidence the incriminating statements made by defendant to the jailer, Tim McGough. We think not.

At the omnibus hearing, Deputy McGrough testified he had not intended to elicit any incriminating response from his prisoner. When he said, "You are the only one who knows who did it," McGough explained, "I wasn't looking for an answer for anything. It was just a comment." The trial court found no indication that McGough intended to elicit an incriminating statement from Jackson. The judge observed it was "probably ill-advised" for the deputy to have Jackson turn on the television news program but stated that jackson's statements "were spontaneously made and not made in connection with any interrogation." On appeal, Jackson disputes these findings. He claims McGough indeed did elicit the statements from him and, since he was not read his Miranda rights, his fifth and fourteenth amendment rights were violated. Jackson further asserts that use of the statements violated his sixth amendment rights because the elicitation of the incriminating statements took place when his right to counsel had attached.

1. We independently apply the totality-of-the-circumstances test to the facts as found by the trial court on the issue of the voluntariness of a defendant's statements. State v. Linder, 268 N.W.2d 734, 736 (Minn. 1978). Doing so here, we conclude that the trial court did not err in finding that Jackson was not "interrogated" in violation of his rights under Miranda. The conversation in question was initiated by Jackson, when he commented, "ou know they should bring back the death penalty for things like that." This comment was not "merely a necessary inquiry arising out of the incidents of the custodial relationship," but was a conversational comment that invited response. Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 2835, 77 L. Ed. 2d 405(1983). While the particular response given by Deputy McGough--"only you know if you did it"--in fact resulted in incriminating statements by Jackson, McGough's response did not rise to ...

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