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September 17, 1993


Appeal from District Court, Hennepin County; Hon. LaJune Thomas Lange, Judge.

En Banc. Gardebring

The opinion of the court was delivered by: Gardebring

1. Probable cause to arrest exists when an officer, who has been called to investigate a possible assault, sees a suspect attempting to hide a potential victim, hears the suspect order the potential victim not to speak, and watches the potential victim run from the suspect when the officer tells them to separate.

2. An unwarned voluntary admission made prior to a confession does not fatally taint an otherwise valid confession, unless the confession was made involuntarily.

3. Lies told to a suspect by a police officer in the process of an interrogation do not necessarily taint a confession that arises out of that interrogation; the totality of the circumstances must be examined to determine whether the confession was voluntary.

4. The decision to admit evidence of prior bad acts rests with the trial court and will not be overturned absent an abuse of discretion.

5. A trial court's determination that the probative value of evidence outweighs its potential for unfair prejudice will not be reversed absent a showing that the decision was an abuse of discretion.

6. A jury instruction that requires the jury to be persuaded to a "moral certainty" of a defendant's guilt in order to convict, comports with due process when the term "moral certainty" is equated with the state of certainty a reasonable person would like to have when making one of life's important decisions.

7. A sentence of life without parole is not disproportionate to the crime of first degree murder when the perpetrator has been previously convicted of a heinous crime.

Heard, considered, and decided by the court en banc.


This case arises out of appellant's conviction for first-degree murder in the death of fourteen-year-old Jamie Cooksey. In September 1990, Cooksey was raped and then strangled to death on her way to school through Brookdale Park. Appellant was arrested about a month later on an unrelated charge for criminal sexual assault and eventually confessed to the Cooksey homicide. We affirm his conviction.

Appellant makes several arguments on appeal. First, he alleges that because his arrest was made without probable cause, his confession and certain other evidence should be suppressed. Second, he contends that a statement given without a Miranda warning fatally tainted any subsequent confession. Third, he complains that the trial court's evidentiary rulings and instructions to the jury denied him a fair trial. Finally, he argues that the trial court relied on the wrong statute when it sentenced him and that his sentence, even under the applicable statute, is unconstitutional. *fn1

On the morning of September 14, 1990, Jamie Cooksey set off on her bicycle to meet friends on the way to school. After receiving word from school authorities that Jamie had not been in class, both parents left work to look for her. Her father eventually found her body in Brookdale Park beneath some trees. The autopsy showed that Jamie had suffocated due to ligature strangulation; a cord, twisted by a stick, was found deeply embedded in her neck. The autopsy also indicated that she had been sexually assaulted.

On the night of October 15, 1990, appellant was walking a sixteen year-old female acquaintance to her boyfriend's house. On the way, appellant began to make unwanted advances toward the girl and steered her into Hamilton Park. Shortly after midnight, two men near the park heard the girl's screams. An officer arrived at the park within minutes of the call placed by one of the men. As the officer shone a light under some trees, he saw appellant attempting to cover the victim with his arm as she cried for help. As they came out from under the tree, the officer heard appellant say to the girl: "Shush, shush. Don't say anything." As soon as the two separated, the officer saw the girl run away from appellant and begin screaming. Before speaking to the victim, the officer handcuffed appellant, informing him he was doing so for safety reasons. When the officer's backup arrived at the scene a short time later, the girl ran up to the backup officer, grabbed him and would not let go.

After getting information from his backup, the officer informed appellant that he was under arrest for criminal sexual conduct and assault. This occurred at approximately 12:30 p.m. on October 16. Later, a pair of numchucks were found under the tree where appellant had attempted to hide. When they arrived at the Brooklyn Park jail, the officer was informed that there was an existing warrant for appellant's arrest issued by the Department of Corrections for a parole violation on a conviction for criminal sexual conduct.

Detective Nordan, a member of the sex crimes unit of the Brooklyn Park Police Department, interviewed appellant on the afternoon of October 16. He believed the assault of the previous evening bore a strong resemblance to the Cooksey murder. On the way to the interview room and before appellant was given a Miranda warning, Nordan asked him if he was familiar with Pyramid cigarettes, a generic brand, and then offered him one. Appellant said that he was familiar with that brand and accepted the cigarette. *fn2 Appellant was then given a Miranda warning and agreed to talk until he felt that he needed a lawyer. Roughly thirty minutes into the interview, appellant gave a formal statement about the previous night's assault.

The following evening, October 17, at around 8:00 p.m., both Detective Nordan and Special Agent Doolittle of the Bureau of Criminal Apprehension ("BCA"), the Cooksey task force coordinator, interviewed appellant about the Cooksey murder. After again receiving his Miranda rights, appellant agreed to talk to the two detectives until he believed he needed counsel. After about an hour, Agent Doolittle asked Detective Nordan to leave the room. At that time, Agent Doolittle described the evidence which he said indicated that appellant had committed the Cooksey murder: Pyramid cigarettes were found at the murder scene; a blood sample taken from the victim matched his blood; a blue ten speed bike similar in color to his bike was seen by a witness near the scene around the time of the crime; and the cord found around the victim's neck was similar to a cord off a jacket from Burger King, appellant's place of employment. *fn3 Doolittle then asked if appellant killed Jamie Cooksey. Appellant denied any involvement in the murder. Doolittle and appellant talked alone for about an hour. After that, Doolittle told appellant that Detective Nordan would return and talk with him about the Hamilton Park incident of the night before.

Nordan returned about 10 p.m. to continue the interview with appellant alone. Appellant brought up the Cooksey murder and mentioned that there seemed to be a lot of evidence implicating him. The interview resumed and appellant discussed the Hamilton Park assault and his prior record. Then appellant turned the conversation back to the Cooksey murder. Eventually, after Nordan implied that appellant's confession would somehow restore Cooksey's lost honor, appellant confessed, but he refused to put the confession on tape. Appellant's confession took place about forty-six hours after he was arrested. After appellant confessed to the crime in detail, Detective Malmquist was called in to listen and appellant repeated his confession to Malmquist. However, appellant still refused to give a tape recorded formal statement.

We first examine whether the officer who initially responded to the Hamilton Park assault had probable cause to arrest appellant. In State v. Olson, 436 N.W.2d 92 (Minn. 1989), aff'd, 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990), the court stated the test for probable cause:

Whether the officers in the particular circumstances, conditioned by their own observations and information and guided by the whole of their police experience, reasonably could have believed that a crime had been committed by the person to be arrested.

Id. at 94 (citing State v. Merrill, 274 N.W.2d 99, 108 (Minn. 1978)). Whether the arresting officer's actions were reasonable is an objective inquiry; it does not depend on the officer's subjective frame of mind at the time of the arrest. State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983). The existence of probable cause depends on the facts of each individual case. State v. Cox, 294 Minn. 252, 256, 200 N.W.2d 305, 308 (1972). We have also held that whether the police had probable cause to arrest is a decision that affects constitutional rights, and as such, an appellate court "makes an independent review of the facts to determine the reasonableness of the police officer's actions." Olson, 436 N.W.2d at 94.

The arresting officer received a radio call from a private citizen who heard a woman scream and the sound of a body being dragged through the grass in Hamilton Park shortly past midnight. When the officer arrived at the scene, appellant and the victim were lying underneath a tree. The officer heard the girl crying for help and heard appellant tell her to keep quiet. After telling the two to come out from underneath the tree, the officer saw the girl run off screaming. The officer then handcuffed appellant, led him to the squad car and searched him.

It is clear in this case that appellant was under arrest as soon as he was handcuffed. State v. Lohnes, 344 N.W.2d 605, 610 (Minn. 1984). Appellant argues that although the officer may have had probable cause to arrest after consulting with the other officer at the scene (who spoke to the victim), the arresting officer did not have probable cause at the time appellant was handcuffed. He asserts that the situation at the time of the arrest appeared ambiguous and only rose to mere suspicion, not enough to constitute probable cause.

We believe that given the information he had, the time the incident took place and the cries of victim, the arresting officer could have reasonably concluded that an assault had taken place or was about to take place, even before conferring with the backup officer.

Appellant further argues that the arrest was pretextual, that it was just a means to interrogate appellant for the Cooksey murder. This argument has no merit. There is no indication that the arresting officer knew that appellant was a former sex offender or that he made any connection between the assault and the Cooksey murder. The officer did not learn of the appellant's outstanding warrant from the Department of Corrections until he returned to the police station.

In short, we find that the arrest was made with probable cause and was not pretextual. Therefore, the arrest provides no basis upon which to suppress appellant's confession or the numchucks found at the scene.

Appellant next argues that his confession should have been suppressed because his earlier unwarned admission that he was familiar with Pyramid cigarettes fatally tainted his confession, and thus his rights under the fifth amendment of the United States Constitution, and art. I, ยง 7 of the Minnesota Constitution were violated. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). The controlling federal case in this circumstance is Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985). In Elstad, when the defendant was asked what he knew about a burglary before he was given the Miranda warning, he admitted that he had been present at the time of the burglary. Later, after receiving his ...

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