2015 WI 54
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP127-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Raheem Moore,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 675, 846 N.W.2d 18)
(Ct. App. 2014 – Published)
PDC No.: 2014 WI App 19
OPINION FILED: June 16, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 23, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Daniel Borowski
JUSTICES:
CONCURRED: ZIEGLER, J., ROGGENSACK C.J., concur. (Opinion
Filed.)
DISSENTED: ABRAHAMSON, BRADLEY, JJ. Dissent. (Opinion
Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Eileen A. Hirsch, assistant state public defender, and oral
argument by Eileen A. Hirsch.
For the plaintiff-respondent, the cause was argued by
Daniel J. O’Brien, assistant attorney general, with whom on the
briefs was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Keith A. Findley,
Wisconsin Innocence Project, Frank J. Remington Center at the
University of Wisconsin Law School, and Steven A. Drizin, Laura
H. Nirider, and Northwestern University School of Law, on behalf
of the Center on Wrongful Convictions of Youth.
2
2015 WI 54
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP127-CR
(L.C. No. 2008CF5160)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 16, 2015
Raheem Moore,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of a published
decision of the court of appeals,1 which affirmed a judgment
convicting Raheem D. Moore (Moore) of second-degree reckless
homicide as party to a crime.2 Moore pled guilty to the charge
1
State v. Moore, 2014 WI App 19, 352 Wis. 2d 675, 846
N.W.2d 18.
2
Contrary to Wis. Stat. §§ 940.06(1) and 939.05. All
subsequent references to the Wisconsin Statutes are to the 2007-
08 version unless otherwise indicated.
No. 2013AP127-CR
after the Milwaukee County Circuit Court denied his motion to
suppress certain statements he made during police questioning.3
¶2 This case presents issues related to our decision in
State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699
N.W.2d 110, and the Wisconsin Legislature's subsequent enactment
of Wis. Stat. § 938.195, which requires that custodial
interrogation of juveniles be recorded except under limited
circumstances. Moore contends that his confession to police was
involuntary. Alternatively, he contends that the incriminating
statements he made that were not recorded during his custodial
interrogation as a juvenile were inadmissible because he did not
"refus[e] to respond or cooperate" with detectives as required
by an exception to the recording statute. Accordingly, he
requests that he be allowed to withdraw his plea.
¶3 Moore, then 15 years old, was arrested on October 10,
2008, after being implicated in a Milwaukee homicide. Police
detectives questioned Moore for approximately five and a half
hours over a period of nine hours from 2:49 p.m. until 11:44
p.m.
¶4 On two occasions during this questioning, Moore asked
the detectives to turn off the device recording his
interrogation. After the detectives complied with Moore's
second request, he confessed to being the shooter in the
3
Judge David L. Borowski presided over the plea hearing and
entered judgment. Judge Jeffrey A. Conen presided over the
motion to suppress hearing.
2
No. 2013AP127-CR
homicide. Thereafter, the detectives covertly recorded Moore
reaffirming his confession.
¶5 Moore was initially charged with first-degree reckless
homicide. The circuit court held a Miranda4/Goodchild5 hearing
to review the voluntariness of Moore's statements made while the
recording device was turned off as well as the voluntariness of
his later statements that were covertly recorded.6 The circuit
court determined that Moore had voluntarily waived his Miranda
rights and was intelligent enough to request that the recording
device be turned off. Thus, Moore's statements were not
suppressed. Following this ruling, the State amended the charge
to second-degree reckless homicide as party to a crime. Moore
pled guilty to the amended charge and was sentenced to 11 years
of initial confinement and nine years of extended supervision.
¶6 Moore appealed the circuit court's decision on the
admissibility of his statements. The court of appeals ruled
Moore's statements were voluntary. It also concluded that Moore
refused to cooperate with the detectives, which permitted them
to turn off the recording device.
¶7 Moore successfully petitioned this court for review.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
5
State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133
N.W.2d 753 (1965).
6
Moore does not contend that the statements he made prior
to 10:42 p.m.——the time at which the recorder was deliberately
turned off——were involuntary.
3
No. 2013AP127-CR
¶8 We agree with the circuit court that Moore's
statements were voluntary. However, we conclude that Moore did
not "refus[e] to respond or cooperate" with police during his
interrogation. Consequently, it was a violation of Wis. Stat.
§ 938.195 for police to cease recording the interrogation.
¶9 Nevertheless, the error, if any, in not suppressing
some of Moore's statements, was harmless. Moore admitted to
participating in the crime prior to the recording device being
turned off, and he repeated his unrecorded confession that he
was the shooter after the device was turned back on.
Accordingly, we affirm the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶10 Police responded to a reported homicide at 2626 North
23rd Street in Milwaukee at approximately 9:26 p.m. on October
8, 2008. When officers arrived, they found James W. Parish
(Parish) face down on the sidewalk. He was pronounced dead at
the scene. An autopsy revealed that Parish was shot in his
right flank, the bullet remained in his heart, and loss of blood
from the gunshot wound caused his death.
¶11 Milwaukee Police Detective Christopher Blaszak
interviewed Ronald Franklin (Ronald) on October 10, 2008.
Ronald said that Moore came to his girlfriend's residence with
Ronald's brother, Raynard Franklin (Raynard), after the
shooting. According to Ronald, Moore told him that he and
Raynard had attempted to rob a victim and that Moore shot the
victim when he became uncooperative.
4
No. 2013AP127-CR
¶12 Moore was arrested shortly after 12:00 p.m. that day
and was questioned by two pairs of police detectives. The first
pair, Scott Gastrow and Charles Mueller, began their questioning
at 2:49 p.m. The second pair, Paul Lough and David Salazar,
took over the interrogation at about 8:30 p.m. The
interrogations were audio recorded, with the exception of the
brief periods discussed below.
A. 2:49 p.m.
¶13 Moore's interrogation took place on the fourth floor
of the Criminal Investigation Bureau in Milwaukee. When
Detectives Gastrow and Mueller began their questioning of Moore,
they asked him basic questions about where he lived, his family,
and his personal background, including his age, criminal
history,7 and education.8 Detective Gastrow also asked Moore
whether he had any mental or learning problems. Moore answered
7
Moore told the Detectives that he had been arrested
previously for possession of marijuana, possession of a
dangerous weapon, and forgery.
8
During this early questioning, the detectives asked Moore
for his father's phone number and address, which Moore supplied.
They also asked Moore about his mother. Moore indicated his
mother was at Community Corrections for a drug addiction
problem. Detectives also asked Moore whom they should contact
in case of an emergency. Moore listed his father and aunt.
5
No. 2013AP127-CR
that he did not have mental problems and that he coped with his
learning problems.9
¶14 Detectives Gastrow and Mueller furnished Moore with a
written copy of his Miranda rights. They read him his rights
one at a time and stopped to ask him if he understood each
right. During this colloquy, Detective Gastrow also asked Moore
to explain the right to end questioning without a lawyer. Moore
stated, "That mean like, if I'm talking to you all, then I don't
want to say no more, I can just, um, don't say nothing."10
¶15 After the detectives read Moore his Miranda rights, he
agreed to talk to them. The detectives asked Moore about what
happened on October 8.
¶16 Initially, Moore told the detectives that he was not
involved in the shooting. He told them that he had been on
Ronald's girlfriend's porch at the time of the shooting. When
the detectives told Moore that witnesses said otherwise, Moore
changed his story and said that he had been walking near the
porch with three friends when he heard the gunshot. Again, the
9
Doctor David W. Thompson (Dr. Thompson), a child
psychologist, testified on Moore's behalf at the
Miranda/Goodchild hearing. Dr. Thompson was concerned with
Moore's confession based on his age, functionally low IQ, and
Attention Deficit Hyperactivity Disorder. Moore's IQ tests
indicated he was in a "borderline range of intellectual
functioning."
10
Detective Gastrow testified at a later hearing that Moore
appeared to understand his Miranda rights.
6
No. 2013AP127-CR
detectives challenged Moore's story, but Moore insisted that he
was not involved in the shooting.
¶17 The detectives showed Moore a photo array that
included both Ronald and Raynard Franklin and asked Moore who
"Jevonte" was.11 Moore identified Ronald, but indicated that he
did not know Raynard. Moore also said that he knew someone
named Jevonte, but did not see him pictured in the array.
¶18 The detectives took a break from the interrogation at
4:02 p.m. They allowed Moore to use the restroom and provided
him with bologna sandwiches, a bag of chips, and water. The
break ended at 4:30 p.m.
¶19 After the break, Moore admitted some involvement in
Parish's death. Moore said he was with someone named Jevonte,
but that Jevonte was not in the photo array he had been shown.
Moore claimed that Jevonte shot Parish after robbing him, but
that Moore was "just part of it" as a "party to a crime." Moore
said he was supposed to get some of the money from the robbery.
¶20 Moore provided the detectives with a detailed story of
the shooting, including the location, his position at the scene,
the type of gun used, and the fact that the victim was
purchasing drugs from the back window of a house. He stated
11
Moore was arrested after police interviewed Ronald
Franklin. The record is not clear whether the detectives
obtained the name "Jevonte" from some source like Franklin, or
whether the detectives hypothesized the name as a technique in
interrogation. See ¶¶31, 34, infra.
7
No. 2013AP127-CR
that the robbery had been Jevonte's idea and that Jevonte had
provided the gun.
¶21 Moore said that, although he did not see Jevonte fire
the gun, he did see the flash of the gun when Jevonte fired it.
He stated that after the gunshot, he and Jevonte fled the scene.
According to Moore, he met up with Jevonte a short time later,
then went to Ronald's girlfriend's house.
¶22 Moore also provided specific details about Jevonte,
saying that he was 15 or 16 years old12 and five feet ten inches
tall with a medium build. However, Moore could not provide the
detectives with Jevonte's last name, where he lived, what school
he went to, whether he had brothers, his mother's name, or his
phone number.
¶23 Moore admitted that his earlier stories were lies.
Still, the detectives challenged Moore's new story, suggesting——
among other things——that Moore could not have seen the flash of
the gun from where he claimed to have been standing. The
detectives also told Moore that Ronald and others had named
someone else as the shooter; Moore told them that Ronald and the
others did not know Jevonte.
12
Later, Moore stated that Jevonte was 18 or 19 years old.
8
No. 2013AP127-CR
¶24 The recording ceased at approximately 5:15 p.m. due to
a malfunction.13 Detectives Gastrow and Mueller ended their
questioning at approximately 6:00 p.m.
B. 8:28 p.m.
¶25 Detectives David Salazar and Paul Lough began to
question Moore at 8:28 p.m. Detective Salazar asked Moore
whether he would be willing to go to the crime scene with them,
and Moore agreed. Detective Salazar read Moore his Miranda
rights again and Moore indicated he understood.
¶26 At approximately 8:39 p.m., Moore and the detectives
left for the crime scene. Detective Salazar sat in the back
seat of a police vehicle with Moore, and Detective Lough drove.
¶27 Moore directed them to the crime scene. During the
drive, Detective Salazar asked Moore about school, his favorite
classes, and potential career paths after high school. When
they arrived at the scene, Moore explained his story of what
happened. Moore said that Parish had walked down an alley and
crossed a gangway. Moore stated he was at the mouth of the
alley while Jevonte was in the yard near Parish. According to
Moore, Jevonte called to Parish, telling him that "somebody
wanted him at the window" of the house where Parish had
purchased drugs. Moore said that Jevonte then shot Parish.
13
At the suppression hearing, the parties agreed that
"malfunctions happen from time to time, it was not done
purposefully and was not actually known until after the fact."
Moore does not suggest that the malfunction implicates the
admissibility of his statements.
9
No. 2013AP127-CR
¶28 After the shooting, Moore said, they ran west down the
alley and crossed 23rd Street and made it to 24th Street.
Eventually, Moore and Jevonte separated. Moore went to Ronald's
girlfriend's house, while Jevonte went home.
¶29 Detective Salazar asked Moore why people in the
neighborhood did not know Jevonte. Moore suggested that those
people were lying. Detective Salazar pointed out that Moore's
father also said he never met Jevonte, which Moore said was
probably true.14
¶30 Moore was given time to eat dinner under the
supervision of police officers. The interrogation resumed at
9:47 p.m.
¶31 Detective Salazar told Moore that police knew Jevonte
was not real and that Moore had already been identified as being
at the crime scene. Moore responded that he was worried the
other person involved "might try to kill [him] or something."
Detective Salazar assured Moore that no one would kill him.
¶32 At this point, Moore asked that the recorder be turned
off:
MOORE: Ah you mind take that thing off.
SALAZAR: What thing off?
MOORE: Ah what you call it?
14
Although Moore had provided his father's phone number
earlier in the day, it is unclear whether or to what extent
police actually contacted him.
10
No. 2013AP127-CR
SALAZAR: The recorder? Well the reason why we don't
want the recorder turned off [is] because we don't
want somebody . . . coming in here and saying that we
beat you. Okay. You know what I mean? That we
did . . . any misconduct. You know what I'm saying?
You know how in the movies where they take the phone
book out and beat people? Okay. . . . You've seen
the movies[,] right[?]
LOUGH: Are you worried we would play that for him?
MOORE: Hmmm.
LOUGH: No. We don't do that. Okay.
SALAZAR: Okay. That recorder's there mainly for my
protection and my partner's protection. Now if you
want it turned off because you asked for it, I will
turn it off. But I just wanted to explain to you why
it's on.
MOORE: Hmm.
SALAZAR: Okay. It's completely up to you. But that
is why it's there. Okay.
¶33 Despite Detective Salazar's invitation to turn off the
recorder at Moore's request, Moore did not make that request.
The detectives did not turn off the recorder, and the
interrogation continued.
¶34 Moore then told the detectives that Raynard was
involved, not Jevonte. Moore said he had gotten the name
"Jevonte" from the detectives he spoke to earlier. Moore said
that Ronald threatened to kill him if he told police that
Raynard was involved.
¶35 Moore said that Raynard had the gun, and Moore
conceded that he had held it on October 8 and 9. Moore also
admitted he was in the backyard of the house where Parish was
purchasing drugs, but maintained that he left the backyard when
11
No. 2013AP127-CR
Raynard called Parish back to the window. Moore then changed
his story again and admitted that he had called Parish back to
the window. Moore explained that Parish had come back to the
window, then Parish ran and Raynard shot him. Moore continued
to deny that he shot Parish or had the gun.
¶36 Detectives took a break and stopped the recording at
10:07 p.m. The interrogation and recording resumed at 10:20
p.m.
¶37 After the break, the detectives asked Moore to explain
again how the events unfolded. Moore again provided a detailed
account. He stated that he had lured Parish back to the window
where Parish had just purchased drugs, but maintained that he
had not fired the gun.
¶38 Then Moore mentioned the recorder again:
MOORE: What ah do you want ah like talk on there?
SALAZAR: You want me to turn that off?
MOORE: Yeah.
SALAZAR: Just tell me why you want me to turn this
off?
MOORE: Cause I don't feel safe [INAUDIBLE] that.
SALAZAR: Okay. So you're asking me to turn it off.
And you realize that we want to keep it on. Right?
Yes, no? I need you to answer yes or no. How's that?
MOORE: Yes.
SALAZAR: Okay.
LOUGH: Who are you afraid of . . . ? Us?
MOORE: Uh huh.
12
No. 2013AP127-CR
LOUGH: Who then?
MOORE: Raynard.
LOUGH: Raynard? Okay.
SALAZAR: So you realize that we're not asking to turn
it off? Okay. And we're not encouraging you to turn
it off? Is that right?
MOORE: Mmm.
SALAZAR: Yes or no?
MOORE: Yes.
SALAZAR: Okay. The only reason you want us to turn
it off is because it's your own choice? Is that
right? Yes or no.
MOORE: Yes.
SALAZAR: Okay. Any other things you need to put on
this before I turn it off?
LOUGH: No. We're gonna turn it off at 10:42 PM.
SALAZAR: And that's at his request. Is that true?
MOORE: Yes.
¶39 At this time, the detectives turned off the recorder.
C. 11:20 p.m.
¶40 At 11:20 p.m., the recording resumed. Detective
Salazar began the recording by saying——outside the interrogation
room——that Moore had just "admitted he was the shooter and that
he didn't want Raynard to get in trouble for what he did and
that he explained why he shot and how it made him feel and
everything . . . ." Detective Salazar then concealed the
recorder in an envelope and took it into the interrogation room.
13
No. 2013AP127-CR
¶41 On the recording, Moore indicated he was scared
earlier and lied about not shooting Parish. Moore explained
that he shot Parish because "he moved too quick and stuff."
Moore told the detectives he "didn't shoot to kill, [he] tried
to hit him," and that he turned his head away when he shot.
¶42 Moore said that he and Raynard ran away from Parish
after the shooting and met at 24th Street. At 24th Street, the
two separated, Moore went to Ronald's girlfriend's house, and he
told Ronald about what happened. Moore said he returned the gun
to Raynard later on October 8.
¶43 The detectives asked Moore if he was telling the
truth, and Moore replied that he was. The recording ended at
11:44 p.m.15
D. Proceedings In Court
¶44 On October 13, 2008, Moore was charged with first-
degree reckless homicide, contrary to Wis. Stat. § 940.02(1).
On October 15, Moore's initial appearance was held before
Circuit Court Commissioner Kevin Costello, who set cash bail at
$100,000. On December 1, a preliminary hearing was held in
criminal court before Circuit Court Judge Glenn H. Yamahiro.
15
At no time during the interrogation did Moore request to
speak to either of his parents.
14
No. 2013AP127-CR
Judge Yamahiro found probable cause for the charge and bound the
case over for trial.16
¶45 On December 10, 2010, a suppression hearing was held
before Judge Jeffery Conen based on Jerrell C.J., 283
Wis. 2d 145, and Wis. Stat. § 938.195. Detective Salazar
testified about Moore's request to turn off the recording device
during part of his interrogation because of Moore's fear of
retaliation. Detective Salazar explained that while the
recorder was turned off, Moore told him that he shot Parish.
After Moore's confession, they took a break, then covertly
brought the recorder back into the interrogation room.
¶46 On cross–examination, Detective Salazar indicated he
was alone with Moore when he confessed. After this confession,
Detective Salazar spoke with his supervisor about the
possibility of a covert recording, as the Department had not
previously encountered such a situation. Detective Salazar
stated his rationale for making the covert recording: "I didn't
want to be accused of all kinds of nonsense, to be honest with
you."
¶47 On January 24, 2011, Judge Conen found that the
request to turn off the recorder came from the defendant, and
"it came from the defendant twice." "[A] reasonable person
could view the actions and statements of Mr. Moore as a request
16
Between the December 1, 2008, preliminary hearing and the
December 10, 2010, suppression hearing, there were multiple
proceedings including an unsuccessful challenge to Moore's
competency and an unsuccessful reverse waiver hearing.
15
No. 2013AP127-CR
to turn off the recording device before he wanted to go further
with some discussion about certain aspects of the case."
¶48 Judge Conen ruled that Moore's first request to turn
off the recorder was not a refusal because Moore continued to
talk. He reasoned, however, that because Moore was making the
request a second time, the detectives may have thought Moore
would not answer their questions with the recorder on.
Therefore, the court determined there was a proper refusal and
denied Moore's suppression motion.
¶49 On December 6, 2011, a plea hearing was held before
Circuit Judge David Borowski after the State filed an amended
information reducing the charge from first-degree reckless
homicide to second-degree reckless homicide as party to a crime.
Moore's plea agreement with the State was that there would be no
presentence investigation, the victim's family would be allowed
to speak at sentencing, the State would anticipate recommending
a maximum prison term and restitution, the defendant would
submit to the court's criminal jurisdiction, and the defendant
would not seek alterations based on his juvenile status. Moore
pled guilty to the amended charge. Judge Borowski accepted the
plea, finding that it was freely, knowingly, intelligently, and
voluntarily given.
¶50 On February 17, 2012, Judge Borowski sentenced Moore
to 11 years of initial confinement and nine years of extended
supervision. The court also required Moore to pay restitution
in the amount of $2,583.00. Moore was credited with 1,226 days
of presentence incarceration.
16
No. 2013AP127-CR
¶51 Moore appealed his conviction on grounds that his
incriminating statements to police should have been suppressed.
The court of appeals affirmed the circuit court, concluding that
Moore refused to cooperate based on his two requests to turn off
the recording device. State v. Moore, 2014 WI App 19, ¶¶46–48,
352 Wis. 2d 675, 846 N.W.2d 18. The court also concluded that
Moore's statements were voluntary based on his previous
encounters with police, his ability to concoct the fake Jevonte
story, and his ability to comprehend "party to a crime"
liability. Id., ¶32.
II. STANDARD OF REVIEW
¶52 We must determine the voluntariness of Moore's
statements to police. Whether Moore's statements were voluntary
is a question of constitutional fact. Our review of questions
of constitutional fact follows a two-step analysis. State v.
Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228, 647 N.W.2d 142
(citing State v. Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345,
629 N.W.2d 613). First, we accept the circuit court's findings
of fact unless they are clearly erroneous. Id. Second, we
independently apply constitutional principles to those facts.
Id.
¶53 This case also requires us to interpret Wisconsin
statutes relating to recording the interrogation of juveniles.
We interpret statutes de novo, without deference to the circuit
court and court of appeals. State v. Lindsey A.F., 2003 WI 63,
¶8, 262 Wis. 2d 200, 663 N.W.2d 757 (citing State v. Setagord,
211 Wis. 2d 397, 405–406, 565 N.W.2d 506 (1997)).
17
No. 2013AP127-CR
¶54 Finally, this case requires us to determine whether
the error, if any, in the circuit court's decision not to
suppress Moore's statements, was harmless. Whether an error is
harmless is a question of law that this court reviews de novo.
Weborg v. Jenny, 2012 WI 67, ¶43, 341 Wis. 2d 668, 816
N.W.2d 191.
III. ANALYSIS
A. Voluntariness of Confession
¶55 A defendant's confession must be voluntary; the
State's use of an involuntary confession for purposes of
prosecution violates the defendant's due process rights. See
Jerrell C.J., 283 Wis. 2d 145, ¶17; Rogers v. Richmond, 365 U.S.
534, 540 (1961). A defendant's confession is voluntary if it is
"the product of a free and unconstrained will, reflecting
deliberateness of choice, as opposed to the result of a
conspicuously unequal confrontation in which the pressures
brought to bear on the defendant by representatives of the State
exceeded the defendant's ability to resist." State v. Lemoine,
2013 WI 5, ¶17, 345 Wis. 2d 171, 827 N.W.2d 589 (citing State v.
Hoppe, 2003 WI 43, ¶36, 261 Wis. 2d 294, 661 N.W.2d 407). The
government bears the burden of establishing——by a preponderance
of the evidence——that a confession was voluntary. State v.
Agnello, 226 Wis. 2d 164, 179–80, 593 N.W.2d 427 (1999) (citing
Lego v. Twomey, 404 U.S. 477, 489 (1972)).
¶56 Voluntariness is evaluated in light of all the
circumstances surrounding interrogation and decided under a
totality of the circumstances, weighing the suspect's personal
18
No. 2013AP127-CR
characteristics17 against the actions of the police. Lemoine,
345 Wis. 2d 171, ¶18 (citing Hoppe, 261 Wis. 2d 294, ¶38).
"[I]n order to justify a finding of involuntariness, there must
be some affirmative evidence of improper police practices
deliberately used to procure a confession." State v. Clappes,
136 Wis. 2d 222, 239, 401 N.W.2d 759 (1987). In other words, a
suspect's personal characteristics alone cannot form the basis
for finding that the suspect's confessions, admissions, or
statements are involuntary.
¶57 We review police conduct for, among other things, "the
length of questioning, general conditions or circumstances in
which the statement was taken, whether any excessive physical or
psychological pressure was used, and whether any inducements,
threats, methods, or strategies were utilized in order to elicit
a statement from the defendant." State v. Ward, 2009 WI 60,
¶20, 318 Wis. 2d 301, 767 N.W.2d 236 (quoting State v. Davis,
2008 WI 71, ¶37, 310 Wis. 2d 583, 751 N.W.2d 332). The age of
the suspect may affect how we view police tactics; "the younger
the child the more carefully we will scrutinize police
questioning tactics to determine if excessive coercion or
intimidation or simple immaturity that would not affect an adult
has tainted the juvenile's confession." Jerrell C.J., 283
17
"The relevant personal characteristics of the defendant
include the defendant's age, education and intelligence,
physical and emotional condition, and prior experience with law
enforcement." State v. Hoppe, 2003 WI 43, ¶39, 261 Wis. 2d 294,
661 N.W.2d 407 (citations omitted).
19
No. 2013AP127-CR
Wis. 2d 145, ¶26 (quoting Hardaway v. Young, 302 F.3d 757, 765
(7th Cir. 2002)). When a suspect is a juvenile, "special
caution" must be taken with the methods of interrogation used
when "a parent, lawyer, or other friendly adult" is not present.
Id., ¶21 (quoting Hardaway, 302 F.3d at 762).
¶58 We begin, as the court of appeals did, with Moore's
personal characteristics. At the time of questioning, Moore was
15 years old. He attended eighth grade at Travis Academy in
Milwaukee. He indicated to police that he did not have any
mental problems, had never attempted suicide, and coped with
whatever learning problems he had. When asked whether he was
sick or under the influence of drugs or alcohol, Moore stated
that he was not.
¶59 Moore's answers in early questioning also indicated
that he had a significant amount of prior police interaction.
Moore told police that he had been arrested previously for
possession of marijuana, forgery, and possession of a dangerous
weapon. Moore said he was on probation for the dangerous weapon
charge and provided police with the name of his probation agent.
¶60 Although Moore was only 15 years old at the time of
his questioning, he had more experience with police and law
enforcement than most people his age. Moore demonstrated that
he was able not only to develop a story about his non-
involvement in the shooting but also to adapt the details of
that story to information——either true or untrue——possessed by
the police. For example, when detectives suggested that
"Jevonte's" age did not make sense, Moore changed it from
20
No. 2013AP127-CR
between 15 and 16 to between 18 and 19. When they asked why
nobody in the neighborhood knew "Jevonte," Moore said that those
people either did not know him or were lying. When detectives
told Moore that he would not have been able to see the flash of
the gun from where he claimed to be standing, he changed his
supposed position at the crime scene.
¶61 In sum, Moore's ability to concoct and modify a story
"on the fly" suggests a level of sophistication and adaptability
perhaps not accounted for by a standard IQ test.18 Thus, his
below-average intellect "does not justify a conclusion that
[his] mental condition, by itself and apart from its relation to
official coercion, should . . . dispose of the inquiry into
constitutional 'voluntariness.'" Colorado v. Connelly, 479 U.S.
157, 164 (1986). Rather, it must be taken into consideration
and weighed against the conduct of police.
¶62 The tactics used by the detectives interrogating Moore
do not suggest that his confession was involuntary. Although
Moore was with police for nearly 11 hours after his arrest, his
interrogation took place over shorter periods of time with
breaks for food, trips to the restroom and the crime scene, and
a shift change. Moore's actual questioning lasted about five
and a half hours.
18
"IQ test scores are approximations of conceptual
functioning, but may be insufficient to assess reasoning in
real-life situations and mastery of practical tasks." American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders (DSM-V) 37 (5th ed. 2013).
21
No. 2013AP127-CR
¶63 Additionally, Moore was read his Miranda rights at
least twice. Early on, Moore indicated to the detectives that
he was aware of his Miranda rights and had read them two or
three times in the past. Nevertheless, the detectives informed
Moore of each of his rights separately and waited for Moore to
verify that he understood. Moore also was furnished with a
written copy of his rights as the warnings were read to him.
Moore explained his right to end questioning to detectives.
¶64 It is true that the detectives used tactics such as
minimizing, suggesting that Parish's death may have been an
accident, and telling Moore that other witnesses were saying he
shot Parish, to elicit a confession from him. Although these
tactics may have influenced Moore, they are tactics that courts
commonly accept. E.g. State v. Triggs, 2003 WI App 91, ¶¶15–17,
264 Wis. 2d 861, 663 N.W.2d 396 (citation omitted). See also 2
Wayne R. LaFave et al., Criminal Procedure § 6.2(c), at 629-36
(3d ed. 2007).
¶65 We conclude that Moore's confession was voluntary
because the pressures placed on him by interrogation did not
"excee[d his] ability to resist." Lemoine, 345 Wis. 2d 171,
¶17. The detectives took care to ensure that Moore understood
his Miranda rights. They fed him, gave him water, took breaks,
and treated him with decency and respect. Moore's age and
intellectual capacity, while significant, are not dispositive.
Thus, although the detectives persuaded Moore to confess that he
22
No. 2013AP127-CR
shot Parish, Moore's decision to do so was a voluntary
decision.19
B. Interpretation of Recording Statutes
¶66 We now turn to the issue of whether, under the
relevant Wisconsin statutes, Moore's questioning should have
been recorded in its entirety. We look to Wis. Stat. § 938.195
to determine whether, and to what extent, the statutory
protections that require the recording of juveniles apply here.
¶67 This court held in Jerrell C.J. that a juvenile's
custodial interrogation must be recorded. Jerrell C.J., 283
Wis. 2d 145, ¶¶57–58. The court said: "All custodial
interrogation of juveniles in future cases shall be
19
Although the parties discussed at some length the absence
of Moore's father during the interrogation, the record contains
no express allegation that there was a violation of Wis. Stat.
§ 938.19(2) ("Notification of Parent, Guardian, [or] Legal
Custodian") in this case. In fact, the record supports at least
a circumstantial determination that police did contact Moore's
father. Short of a violation of Wis. Stat. § 938.19(2) or some
evidence that police purposefully cut Moore off from his parent
or another "friendly adult" in order to secure a confession, we
hesitate to say that Moore's father's absence can be considered
an "improper police practice" to be weighed against his personal
characteristics. Thus, although we take Moore's father's
absence into account as a part of the totality of the
circumstances surrounding Moore's confession, his absence does
not change the outcome.
The Center on Wrongful Convictions of Youth and the
Wisconsin Innocence Project, as amicus, ask us to adopt a per se
rule excluding statements made by juveniles when they are denied
the opportunity to consult with a parent or other friendly
adult. In Jerrell C.J., we were asked to adopt a similar rule.
We declined to do so in Jerrell C.J., 283 Wis. 2d 145, ¶59, and
we decline to do so here.
23
No. 2013AP127-CR
electronically recorded where feasible, and without exception
when questioning occurs at a place of detention." Id., ¶58.
¶68 The legislature appeared to codify this holding as
part of 2005 Wis. Act 60, which was approved subsequent to the
Jerrell C.J. decision. The Act created Wis. Stat. § 938.195,
which reads, in part, as follows:
(2) WHEN REQUIRED. (a) A law enforcement agency
shall make an audio or audio and visual recording of
any custodial interrogation of a juvenile that is
conducted at a place of detention unless a condition
under s. 938.31(3)(c)1. to 5. applies.
(b) If feasible, a law enforcement agency
shall make an audio or audio and visual recording of
any custodial interrogation of a juvenile that is
conducted at a place other than a place of detention
unless a condition under s. 938.31(3)(c)1. to 5.
applies.
3. NOTICE NOT REQUIRED. A law enforcement
officer or agent of a law enforcement agency
conducting a custodial interrogation is not required
to inform the subject of the interrogation that the
officer or agent is making an audio or audio and
visual recording of the interrogation.
¶69 Act 60 also amended Wis. Stat. § 938.31, creating
subsection (3) to implement the above-stated directive.
Subsection (3) reads in part:
(b) Except as provided under par. (c), a
statement made by the juvenile during a custodial
interrogation is not admissible in evidence against
the juvenile in any court proceeding alleging the
juvenile to be delinquent unless an audio or audio and
visual recording of the interrogation was made as
required under s. 938.195(2) and is available.
(c) A juvenile's statement is not
inadmissible in evidence under par. (b) if any of the
24
No. 2013AP127-CR
following applies or if other good cause exists for
not suppressing a juvenile's statement under par. (b):
1. The juvenile refused to respond or
cooperate in the custodial interrogation if an audio
or audio and visual recording was made of the
interrogation so long as a law enforcement officer or
agent of a law enforcement agency made a
contemporaneous audio or audio and visual recording or
written record of the juvenile's refusal.
Wis. Stat. § 938.31(3)(b)-(c) (emphasis added).
¶70 Act 60 also created Wis. Stat. § 968.073 in the
chapter entitled "Commencement of Criminal Proceedings."
Section 968.073 deals with "Recording custodial interrogations."
This section somewhat parallels Wis. Stat. § 938.195(2), but it
is not nearly as comprehensive. Section 968.073(2) reads:
(2) It is the policy of this state to make an
audio or audio and visual recording of a custodial
interrogation of a person suspected of committing a
felony unless a condition under s. 972.115(2)(a)1. to
6. applies or good cause is shown for not making an
audio or audio and visual recording of the
interrogation.
¶71 Wisconsin Stat. § 972.115(2)(a)1. reads:
1. The person refused to respond or cooperate
in the interrogation if an audio or audio and visual
recording was made of the interrogation so long as a
law enforcement officer or agent of a law enforcement
agency made a contemporaneous audio or audio and
visual recording or written record of the subject's
refusal.
¶72 Notably, Wis. Stat. § 972.115(2)(a) provides a remedy
for a recording violation that is different from the remedy in
Wis. Stat. § 938.31(3)(b). It provides:
If a statement made by a defendant during a custodial
interrogation is admitted into evidence in a trial for
a felony before a jury and if an audio or audio and
25
No. 2013AP127-CR
visual recording of the interrogation is not
available, upon a request made by the defendant as
provided in s. 972.10 (5) and unless the state asserts
and the court finds that one of the following
conditions applies or that good cause exists for not
providing an instruction, the court shall instruct the
jury that it is the policy of this state to make an
audio or audio and visual recording of a custodial
interrogation of a person suspected of committing a
felony and that the jury may consider the absence of
an audio or audio and visual recording of the
interrogation in evaluating the evidence relating to
the interrogation . . . .
Wis. Stat. § 972.115(2)(a).
¶73 These several statutes present two questions in
relation to this case:
1. Did Moore refuse to respond or cooperate with
detectives in his custodial interrogation if the detectives did
not discontinue the audio recording of the interrogation?
Moore's refusal would justify the officers turning off the
recorder.
2. If Moore did not refuse to respond or cooperate
in his custodial interrogation, were the statements he provided
to police during the time he was not being recorded inadmissible
against him in a criminal proceeding?
¶74 These questions present issues of statutory
interpretation.
¶75 Interpreting a statute requires us to "faithfully give
effect to the laws enacted by the legislature . . . ." State ex
rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. Words and phrases in the statute
are given their "common, ordinary, and accepted meaning" unless
26
No. 2013AP127-CR
they are technical or defined in the statute. Id., ¶45. We
also consider "the scope, history, context and purpose of the
statute" as a part of this plain–meaning analysis. Id., ¶48
(quoting State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶18, 236
Wis. 2d 473, 613 N.W.2d 591).
¶76 Normally, if our analysis finds a plain meaning in the
language of the statute, the inquiry ends there. Id., ¶46.
Normally, we are "not at liberty to disregard the plain, clear
words of the statute." Id. (quoting State v. Pratt, 36
Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). If, on the other hand,
the statute is ambiguous we may examine extrinsic sources, such
as legislative history. Id., ¶¶47, 50.
¶77 In this case, the statute is not ambiguous. Thus,
interpretation of the phrase "refused to respond or cooperate"
represents an ordinary case of statutory interpretation. With
respect to the remedy for a violation of the statute, however,
we are presented with a dilemma. A literal reading of the
statute appears to undermine the purpose of the statute for
juveniles who are prosecuted in adult criminal court and to
produce a result that is in direct contravention of this court's
ruling in Jerrell C.J.
¶78 We address first the question of whether Moore refused
to respond or cooperate.
¶79 Neither Wis. Stat. § 938.31 nor Wis. Stat. § 938.195
defines "refused." We therefore consider the commonly accepted
definition of the word. "Refuse" may be defined as "to express
oneself as unwilling to accept . . . [or] to show or express
27
No. 2013AP127-CR
unwillingness to do or comply with something . . . ." Webster's
New Collegiate Dictionary 972 (5th ed. 1977). A "refusal" is
"The denial or rejection of something offered or demanded."
Black's Law Dictionary 1285 (7th ed. 1999).
¶80 A suspect who "refuse[s] to respond or cooperate" must
do more than request or express a preference that a recording
device be turned off. Rather, the plain meaning of the statute
is that the recording device may be turned off only when the
suspect expresses or shows that he or she will no longer
participate in the interrogation unless the recording device is
turned off. A refusal must be affirmative; it is not enough for
officers to assume that the interrogation will yield better
results if the recording device is turned off.
¶81 It is clear from the record that Detectives Lough and
Salazar stopped recording their interrogation of Moore based on
Moore's stated preference, not on his refusal to respond or
cooperate. Immediately prior to the recorder being shut off,
Detective Salazar emphasized that he and Detective Lough were
not asking or encouraging Moore to have the recorder shut off,
and that shutting it off was Moore's "choice." We must note
that Detective Salazar previously offered to turn off the
recorder if Moore asked for him to do so.
¶82 We do not ascribe any improper motives to the
detectives' decision to turn off the recording device in this
case. The detectives' decision appears to be exactly what Moore
wanted. Nonetheless, giving juvenile suspects the "choice" of
whether to have their questioning recorded would defeat the
28
No. 2013AP127-CR
purpose of the statute, which is to ensure that police do not
use unfair tactics to elicit confessions from juveniles. In
cases of questionable police conduct——however rare they may be——
courts would be able to analyze only the police tactics used to
induce, euchre, or coerce the juvenile into "choosing" to have
the recorder turned off, and would be able merely to draw
inferences about the tactics used to obtain the juvenile's later
statements and admissions.
¶83 After Moore's original request to turn the recording
device off, he continued making statements and answering
questions. His second request was similar to the first. Moore
never told the detectives he would end the interrogation or stop
answering questions if the recorder was left on. Detectives
Salazar and Lough may have felt that they were getting
incomplete or dishonest answers from Moore due to the recorder's
presence, but that suspicion, coupled with Moore's request, was
not enough to determine that Moore "refused to respond or
cooperate."20
¶84 A majority of the court concludes that Moore did not
refuse to respond or cooperate unless the recorder was turned
20
Although this may seem at first to be an additional
hurdle for law enforcement to clear in its pursuit of criminal
suspects, we note that despite initial resistance to mandatory
recording laws nationwide, an overwhelming majority of police
departments prefer to record interrogations. See William A.
Geller, Videotaping Interrogations and Confessions, in Nat'l
Inst. of Justice, U.S. Dept. of Justice, Research in Brief 1, 10
(Mar. 1993).
29
No. 2013AP127-CR
off. We recognize and appreciate the view that Moore should not
benefit from being granted his stated wish, as long as his
subsequent confession was voluntary.
2. Remedy for Violation of Recording Statues
¶85 Having determined that the failure to record parts of
Moore's interrogation violated Wis. Stat. § 938.195, we now turn
to the question of remedy. Once again, Wis. Stat.
§ 938.31(3)(b) provides that "a statement made by [a] juvenile
during a custodial interrogation is not admissible in evidence
against the juvenile in any court proceeding alleging the
juvenile to be delinquent unless an audio or audio and visual
recording of the interrogation was made as required . . . and is
available."21
¶86 The problem is that subsection (3)(b) speaks of "any
court proceeding alleging the juvenile to be delinquent" and
that this subsection is part of a section on the "fact-finding
hearing"——e.g., the trial——in juvenile delinquency cases.
¶87 Wisconsin Stat. § 972.115(2)(a) provides a different
remedy in felony criminal cases, namely, a jury instruction
that it is the policy of this state to make an audio
or audio and visual recording of a custodial
interrogation of a person suspected of committing a
21
Wisconsin Stat. § 938.02(3m) defines "delinquent" as "a
juvenile who is 10 years of age or older who has violated any
state or federal criminal law, except as provided
in . . . [§] 938.183 . . . ." Section 938.183, in turn, gives
adult courts original jurisdiction over certain offenses alleged
to have been committed by juveniles, including second degree
reckless homicide. See Wis. Stat. § 938.183.
30
No. 2013AP127-CR
felony and that the jury may consider the absence of
an audio or audio and visual recording of the
interrogation in evaluating the evidence relating to
the investigation.
Wis. Stat. § 972.115(2)(a).
¶88 One way of reading these statutes reveals troubling
incongruities in the statutory scheme. For example, if a
juvenile's unrecorded statement would be excluded in juvenile
delinquency proceedings but is admissible in adult court, the
state will often have the power to overcome the consequences of
an improper failure to record custodial interrogation by
charging the juvenile with a specific felony or by seeking to
waive the juvenile into adult court.
¶89 Permitting the use of unrecorded juvenile statements
in major felony cases is plainly inconsistent with the court's
decision in Jerrell C.J. However, determining whether such a
result is what the legislature authorized and intended
implicates the legislature's authority to supersede this court's
exercise of superintending authority.
¶90 Resolving the question of remedy here would yield no
satisfactory answer. Fortunately, that is not necessary on the
facts of this case.
¶91 This court is highly mindful of the separation of
powers. It does not engage in direct confrontation with another
branch of government unless the confrontation is necessary and
unavoidable. Here the potential confrontation is avoidable. No
four members of this court agree on the proper remedy for a
violation of Wis. Stat. § 938.195 in the criminal prosecution of
31
No. 2013AP127-CR
a person under the age of 17, but a majority does agree that any
error in admitting Moore's confession was harmless in this case.
C. Harmless Error
¶92 Assuming, arguendo, that Moore's unrecorded statements
should have been suppressed by the court, we turn to whether any
error was harmless. Wisconsin's statutory harmless error test
is laid out at Wis. Stat. § 805.18. It states:
The court shall, in every stage of an action,
disregard any error or defect in the pleadings or
proceedings which shall not affect the substantial
rights of the adverse party. . . . No judgment shall
be reversed or set aside or new trial granted in any
action or proceeding on the ground of . . . the
improper admission of evidence . . . unless in the
opinion of the court to which the application is made,
after an examination of the entire action or
proceeding, it shall appear that the error complained
of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to
secure a new trial.
¶93 Although a part of Wisconsin's codified civil
procedure, Wis. Stat. § 805.18 applies to criminal proceedings
as well. State v. Armstrong, 223 Wis. 2d 331, 368 n.36, 588
N.W.2d 606 (1999). We have previously adopted the test in
Strickland v. Washington, 466 U.S. 668 (1984), as the test for
harmless error analysis. See Armstrong, 223 Wis. 2d at 368-69;
see also State v. Dyess, 124 Wis. 2d 525, 544–45, 370 N.W.2d 222
(1985).
¶94 The harmless error inquiry asks whether "the error
complained of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to secure a new
trial." Wis. Stat. § 805.18. Stated differently, the question
32
No. 2013AP127-CR
is "whether it was 'beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.'"
State v. Magett, 2014 WI 67, ¶29, 355 Wis. 2d 617, 850 N.W.2d 42
(quoting State v. Mayo, 2007 WI 78, ¶47, 301 Wis. 2d 642, 734
N.W.2d 115). Cf. State v. Harvey, 2002 WI 93, 291 Wis. 2d 673,
717 N.W.2d 74.
¶95 Under this framework, plea withdrawal is not warranted
in this case. Moore pled guilty to second-degree reckless
homicide as a party to the crime. Even if the statements Moore
made while the recorder was turned off had been suppressed, it
is clear beyond a reasonable doubt that he would have pled
guilty to the reduced charge.
¶96 "[T]he second-degree reckless homicide statute
requires 'both the creation of an objectively unreasonable and
substantial risk of human death or great bodily harm and the
actor's subjective awareness of that risk.'" State v. Neumann,
2013 WI 58, ¶74, 348 Wis. 2d 455, 832 N.W.2d 560 (citation
omitted); see also Wis. Stat. § 940.06. The party to a crime
statute imposes criminal liability on "whoever is concerned in
the commission of a crime," including those who "aid and abet"
the commission of the crime and those who are "party to a
conspiracy with another to commit it . . . ." Wis. Stat.
§ 939.05.
¶97 Moore's statements made from 2:49 p.m. through 10:52
p.m., with a brief exception, are all recorded. He does not
contend that statements made during this period are
inadmissible, as he received the statutory protection and
33
No. 2013AP127-CR
benefit of a recording during most of that time. His statements
were voluntary.
¶98 Statements made by Moore prior to 10:52 p.m. include
the following:
- He was "part of" the incident as "party to a crime"
- He knew Raynard had a gun
- He knew Raynard planned to rob someone
- He was supposed to get a portion of the money obtained in
the robbery
- He acted as lookout and would have alerted Raynard if
police had approached
- He lured Parish back to the window where Parish had
purchased drugs just before Raynard shot Parish
- Raynard shot Parish, and they both fled on foot.
Moore provided detectives with numerous details to support this
version of events.
¶99 Furthermore, detectives recorded Moore confessing to
firing the gun himself after they covertly brought the recording
device back into the interrogation room. Although this
confession took place after the recording device had been turned
34
No. 2013AP127-CR
off for a brief period, it was still admissible and had
virtually the same content as Moore's unrecorded confession.22
¶100 Moore's situation at the pleading stage was virtually
the same regardless of any possible error made by the circuit
court in denying suppression of Moore's unrecorded statements.
The State still had ample evidence to support the party to a
crime charge that Moore ultimately pled to.23 Because we are
persuaded beyond a reasonable doubt that Moore would have pled
guilty to the same charge, we hold any error discussed herein to
be harmless.
IV. CONCLUSION
¶101 We agree that Moore's incriminating statements were
voluntary. However, Moore did not "refus[e] to cooperate" with
police during his interrogation. It was therefore a violation
22
Moore contends that his confession after the recorder was
turned back on should be inadmissible, relying on State v.
Dionicia M., 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236.
Dionicia M. is distinguishable in a number of ways, primarily
because it involved a police interrogation of a juvenile suspect
that was unrecorded from the beginning until the suspect's
confession. Only after the suspect confessed did police record
her statements. Where, as here, a recording "bookends" the
questioning with only a short period of time unrecorded in the
middle, concerns about police coercion are far less prevalent.
23
It is plausible that Moore's changing story throughout
his interrogation is at least part of the reason the State
amended the charge from first-degree reckless homicide to
second-degree reckless homicide as a party to a crime.
Regardless of which version of Moore's story the State relied
upon, by 5:00 p.m. he had provided the detectives with details
of his involvement sufficient to find criminal culpability under
the amended charge.
35
No. 2013AP127-CR
of Wis. Stat. § 938.195 for police to cease recording the
interrogation.
¶102 Nevertheless, the error, if any, in not suppressing
some of Moore's statements, was harmless. Moore admitted to
participating in the crime prior to the recording being turned
off, and he repeated his confession that he was the shooter
after the recording was turned back on. Accordingly, we affirm
the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
36
No. 2013AP127-CR.akz
¶103 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I agree
with the majority opinion that all of Raheem Moore's statements
to the detectives were knowing, intelligent, and voluntary. I
join the majority opinion in that respect. I write separately
because I believe that the majority opinion should take this
opportunity to conclude that suppression of a juvenile's
unrecorded statements under Wis. Stat. § 938.31(3)(b) is not an
available remedy if a juvenile is in adult court. While a
juvenile's statements during a custodial interrogation generally
must be recorded, this case was an adult criminal court
proceeding, not a juvenile court delinquency proceeding. My
conclusions are based upon a plain meaning statutory analysis.
¶104 I write separately to clarify that this case has a
somewhat unique posture. I hope to clarify that we should not
conflate procedures and remedies available in juvenile court
with those in adult court. To be clear, had the case been tried
to a jury in adult court, Moore could have requested a jury
instruction under Wis. Stat. § 972.115(2)(a), but relief under
Wis. Stat. § 938.31(3)(b) would not be available. Moore was in
adult and not juvenile court; hence, suppression of his
unrecorded statements under § 938.31(3)(b) is not available to
him because his case was not a "court proceeding alleging the
juvenile to be delinquent." See Wis. Stat. § 938.31(3)(b).
Moreover, a jury instruction is of little significance since
Moore pled guilty in adult court. I write separately because
the majority opinion stops short of clearly concluding that the
1
No. 2013AP127-CR.akz
only available remedy to Moore would be a § 972.115(2)(a) jury
instruction and that suppression under § 938.31(3)(b) is not
available to Moore because he was in adult court.
¶105 "[W]e have repeatedly held that statutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source
and citations omitted). "Statutory language is given its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Id. (citation omitted). "Where
statutory language is unambiguous, there is no need to consult
extrinsic sources of interpretation, such as legislative
history." Id., ¶46 (citations omitted). "'In construing or
interpreting a statute the court is not at liberty to disregard
the plain, clear words of the statute.'" Id. (quoting State v.
Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). "We should
not read into the statute language that the legislature did not
put in." Brauneis v. LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612
N.W.2d 635 (citing In the Interest of G. & L.P., 119
Wis. 2d 349, 354, 349 N.W.2d 743 (1984)). The majority opinion
correctly recognizes these principles of statutory
interpretation. Majority op., ¶¶75-76.
¶106 The majority opinion holds that the failure to record
the entire custodial interrogation violated the recording
requirement in Wis. Stat. § 938.195. Majority op., ¶¶84-85.
2
No. 2013AP127-CR.akz
That statute provides: "A law enforcement agency shall make an
audio or audio and visual recording of any custodial
interrogation of a juvenile that is conducted at a place of
detention unless a condition under [§] 938.31(3)(c)1. to 5.
applies." Wis. Stat. § 938.195(2)(a). I do not quarrel with
the legislative call to record a juvenile's statements during a
custodial interrogation.
¶107 I also do not question that the remedy for a violation
of the recording requirement is suppression under Wis. Stat.
§ 938.31. However, the legislature also determined that
suppression under § 938.31 is available only in a juvenile court
delinquency proceeding. This statute provides, in relevant
part:
Except as provided under par. (c), a statement
made by the juvenile during a custodial interrogation
is not admissible in evidence against the juvenile in
any court proceeding alleging the juvenile to be
delinquent unless an audio or audio and visual
recording of the interrogation was made as required
under [§] 938.195(2) and is available.
Wis. Stat. § 938.31(3)(b) (emphasis added). The majority
opinion seems to avoid the inevitable conclusion that
suppression under that statute is unavailable in adult court.
Majority op., ¶¶86-91. We should adhere to the legislation's
plain language.
¶108 Moore is not entitled to suppression under Wis. Stat.
§ 938.31(3)(b) in adult court. By this statute's plain terms,
the suppression remedy applies in a "court proceeding alleging
the juvenile to be delinquent." Wis. Stat. § 938.31(3)(b). A
criminal prosecution in adult court is not a "court proceeding
3
No. 2013AP127-CR.akz
alleging the juvenile to be delinquent." Therefore, this
statute's suppression remedy for a juvenile delinquency
proceeding does not apply in adult court, even if the adult
court defendant is a juvenile. A court would have to
impermissibly read language into this statute in order to
determine that its suppression remedy applies in adult court.
See Brauneis, 236 Wis. 2d 27, ¶27 (citation omitted) ("We should
not read into the statute language that the legislature did not
put in.").
¶109 I recognize that, had Moore chosen to have a jury
trial in adult court, he could have requested a jury instruction
under Wis. Stat. § 972.115 regarding the fact that the entire
custodial interrogation was not recorded.1 If given, such a jury
instruction would not, however, find its basis in the juvenile
code. Wisconsin. Stat. § 972.115 does provide:
If a statement made by a defendant during a
custodial interrogation is admitted into evidence in a
trial for a felony before a jury and if an audio or
audio and visual recording of the interrogation is not
available, upon a request made by the defendant as
provided in [§] 972.10(5) and unless the state asserts
and the court finds that one of the following
conditions applies or that good cause exists for not
providing an instruction, the court shall instruct the
jury that it is the policy of this state to make an
audio or audio and visual recording of a custodial
interrogation of a person suspected of committing a
felony and that the jury may consider the absence of
an audio or audio and visual recording of the
interrogation in evaluating the evidence relating to
1
I do not mean to suggest that a jury instruction is always
required.
4
No. 2013AP127-CR.akz
the interrogation and the statement in the
case . . . .
Wis. Stat. § 972.115(2)(a) (emphases added). This statute,
unlike Wis. Stat. § 938.31(3)(b), does not distinguish between
adult and juvenile defendants. Instead, this statute allows for
a jury instruction, under certain circumstances, in a felony
prosecution tried before a jury in adult court. This statute
plainly provides that Moore's potential remedy for the failure
to record his entire custodial interrogation would have been to
request a jury instruction, had his case been tried to a jury in
adult court. He did not proceed to jury trial. A jury
instruction is, thus, of little import in the case at issue.
¶110 Why the majority opinion seems to shy away from
expressly holding that suppression was not available to Moore is
unclear to me. Specifically, the majority opinion states that
if a juvenile's unrecorded statement would be excluded
in juvenile delinquency proceedings but is admissible
in adult court, the state will often have the power to
overcome the consequences of an improper failure to
record custodial interrogation by charging the
juvenile with a specific felony or by seeking to waive
the juvenile into adult court.
Majority op., ¶88. This proposition is too cavalier for me.
Waiver of a juvenile into adult court is not such an automatic
result. Moreover, a prosecutor and a court should be highly
suspect if waiver is being sought to avoid suppression of an
unrecorded statement. In many instances, the State will not
have the option of charging a juvenile with a crime that may be
prosecuted in adult court. See Wis. Stat. § 938.18 (authorizing
certain juvenile offenses to be waived into adult court if
certain conditions are met); Wis. Stat. § 938.183(1) (listing
5
No. 2013AP127-CR.akz
juvenile offenses over which adult courts have "exclusive
original jurisdiction"). "The decision to waive juvenile court
jurisdiction under Wis. Stat. § 938.18 is committed to the sound
discretion of the juvenile court." In re Tyler T., 2012 WI 52,
¶24, 341 Wis. 2d 1, 814 N.W.2d 192 (citations omitted). I do
not agree that law enforcement would flout the statutory
recording mandate, thinking either that the prosecutor will
"cover" for their disregard of the recording requirement by
prosecuting a juvenile in adult court or that a juvenile court
would waive a juvenile into adult court to avoid suppression
under § 938.31(3)(b). In fact, recordings are the suggested
practice under Wis. Stat. §§ 968.073(2) and 938.195(2) in either
court.
¶111 Importantly, law enforcement officers already possess
sufficient incentive to record an entire custodial interrogation
of a juvenile because the officers do not know whether the case
will proceed in adult or juvenile court. In fact, the vast
majority of juvenile cases proceed in juvenile court, not adult
court. Most officers would not risk suppression and would
recognize that unrecorded statements of a juvenile could be
suppressed under Wis. Stat. § 938.31(3)(b) in a juvenile
delinquency proceeding. Thus, we need not fear that officers
will be cavalier with respect to their statutory duty to record
a custodial interrogation of a juvenile, given the fact that at
the time of the recording, officers will not have any assurance
that the case will be tried anywhere but juvenile court.
6
No. 2013AP127-CR.akz
¶112 Also, the majority opinion states that it avoids a
"direct confrontation with another branch of government" by
declining to determine whether the suppression remedy under Wis.
Stat. § 938.31(3)(b) applies in adult court. Majority op., ¶91.
The majority opinion reflects that "[p]ermitting the use of
unrecorded juvenile statements in major felony cases is plainly
inconsistent with the court's decision in [In re Jerrell C.J.,
2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110]." Majority op.,
¶89. In Jerrell C.J., the court held that a written confession
made by a juvenile during a custodial interrogation was
inadmissible as evidence in that juvenile court proceeding.
Jerrell C.J., 283 Wis. 2d 145, ¶¶3, 36. The court went further
to require recording of a juvenile's statements during a
custodial interrogation and did so pursuant to its "supervisory
authority." Id., ¶¶47, 49, 58. Subsequently, the legislature
created § 938.31(3)(b), presumably to implement the holding from
Jerrell C.J. Majority op., ¶¶68-69. In the present case, a
separation-of-powers issue is not before the court, and the
majority opinion should not decline to resolve whether
suppression under § 938.31(3)(b) applies in adult court because
the legislature has spoken. I would not use our supervisory
authority to now create additional relief, and I believe that
the legislation's plain language deserves its due.
¶113 Further, I conclude that the circuit court did not err
by denying Moore's suppression motion. The majority opinion
undertakes an analysis as if the circuit court erred in denying
Moore's suppression motion. Specifically, it states that,
7
No. 2013AP127-CR.akz
"[a]ssuming, arguendo, that Moore's unrecorded statements should
have been suppressed by the court, we turn to whether any error
was harmless." Majority op., ¶92. It goes on to hold that "any
possible error made by the circuit court in denying suppression
of Moore's unrecorded statements" was harmless. Majority op.,
¶100. Because the circuit court did not err, I would not assume
for the sake of argument that the circuit court erred.
¶114 The circuit court denied Moore's suppression motion on
the grounds that suppression under Wis. Stat. § 938.31(3)(b) was
unavailable to Moore because he was being tried in adult court.
The circuit court reasoned that Wis. Stat. ch. 938 "deals with
juveniles in delinquency proceedings." Wisconsin Stat. ch. 972,
the circuit court explained, "deals with defendants in adult
proceedings. Not adult defendants. Defendants." Thus, the
circuit court held that, "if I find that there was [not a]
refusal, that [sic] what would happen is the statement would be
admissible, but there would be a——an instruction that would be
given explaining the ramifications of that."
¶115 In sum, the circuit court correctly denied Moore's
suppression motion on the grounds that, because Moore was tried
in adult court, suppression under Wis. Stat. § 938.31(3)(b) was
not available to him. Because the circuit court did not err by
denying the suppression motion, there is no need to undertake a
harmless error analysis.
¶116 For the foregoing reasons, I respectfully concur.
¶117 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this concurrence.
8
No. 2013AP127-CR.ssa
¶118 SHIRLEY S. ABRAHAMSON, J. (dissenting). When the
defendant was 15 years old, he was interrogated by the police
about a murder that had recently taken place. After roughly 11
hours in custody, the defendant confessed to the crime. The
defendant now seeks to suppress his confession.
¶119 The defendant argues that admission of his confession
would violate the federal and state constitutions because the
confession was not voluntary.1 The defendant further argues that
admission of his confession would violate Wis. Stat. § 938.195
(2007-08),2 which requires that "any custodial interrogation of a
juvenile that is conducted at a place of detention" be recorded.3
¶120 I conclude that the defendant's confession was not
voluntary under the federal and state constitutions. Because
admission of the confession was not harmless error, the
confession should be suppressed.
¶121 A confession is voluntary if it is "the product of a
free and unconstrained will, reflecting deliberateness of
choice, as opposed to the result of a conspicuously unequal
confrontation in which the pressures brought to bear on the
1
See State v. Jerrell C.J., 2005 WI 105, ¶17, 283
Wis. 2d 145, 699 N.W.2d 110 (explaining that if a defendant's
confession is constitutionally "involuntary," then its admission
violates the defendant's due process rights under the Fourteenth
Amendment of the federal constitution and Article I, Section 8
of the Wisconsin Constitution). See also majority op., ¶55.
2
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
3
Because my analysis of the constitutional issue is
dispositive, I would not reach the recording statute issue.
1
No. 2013AP127-CR.ssa
defendant by representatives of the State exceeded the
defendant's ability to resist."4
¶122 Whether a confession is voluntary and thus
constitutionally valid depends on the totality of the
circumstances surrounding the confession.5 In conducting this
totality-of-the-circumstances review, a court weighs a
defendant's personal characteristics (including the defendant's
"age, education and intelligence . . . and prior experience with
law enforcement") against the interrogation methods employed by
the State (including "the length of questioning"; the presence
of a parent, attorney, or other interested adult; and "whether
the defendant was informed of the right to counsel and right
against self-incrimination").6
¶123 Courts must exercise "special care" when assessing the
voluntariness of a juvenile's confession,7 as children are
"uncommonly susceptible" to suggestive and coercive police
interrogation techniques.8
4
Majority op., ¶¶55, 65 (quoting State v. Lemoine, 2013 WI
5, ¶17, 345 Wis. 2d 171, 827 N.W.2d 589). See also Jerrell
C.J., 283 Wis. 2d 145, ¶16.
5
Majority op., ¶56; Jerrell C.J., 283 Wis. 2d 145, ¶20.
6
Majority op., ¶56 & n.17. See also Jerrell C.J., 283
Wis. 2d 145, ¶30; State v. Hoppe, 2003 WI 43, ¶39, 261
Wis. 2d 294, 661 N.W.2d 407.
7
In re Gault, 387 U.S. 1, 45 (1967); Haley v. Ohio, 332
U.S. 596, 599 (1948).
8
Jerrell C.J., 283 Wis. 2d 145, ¶26.
2
No. 2013AP127-CR.ssa
¶124 In the instant case, I weigh the relevant personal
characteristics of the defendant against the interrogation
methods employed by the State as follows:
• The defendant was 15 years old when he confessed. His
young age is a factor weighing against the voluntariness
of the confession.
• The defendant was in eighth grade at the time of his
confession. His relatively low education level is a
factor weighing against the voluntariness of the
confession.
• The defendant exhibits borderline intellectual
functioning.9 The defendant's low intelligence level is
a factor weighing against the voluntariness of the
confession.
• The defendant has a history of learning disabilities.
The defendant may therefore have struggled to understand
his Miranda rights and the consequences of waiving them.
Consequently, this factor weighs against the
voluntariness of the confession.
9
An evaluation of the defendant performed at the State's
request determined that the defendant functions in the
"borderline" range of intelligence, meaning his intelligence
quotient (IQ) score is between 71 and 84. An evaluation of the
defendant performed at the defendant's request similarly
concluded that the defendant's IQ score falls between 69 and 79.
Intellectual disability, also known as mental retardation, is
commonly defined as an IQ score of 70 or below. See MedLine
Plus, U.S. Nat'l Library of Medicine, "Intellectual disability"
(last updated May 10, 2013),
http://www.nlm.nih.gov/medlineplus/ency/article/001523.htm.
3
No. 2013AP127-CR.ssa
• The defendant was diagnosed with at least three mental
health issues: attention deficit/hyperactivity disorder,
mood disorders, and conduct disorders. In addition, he
has previously displayed problems with substance abuse.
The defendant's mental health issues and behavioral
problems are factors weighing against the voluntariness
of the confession.
• The defendant had previous experience with law
enforcement at the time of his confession——namely, two
prior arrests that both resulted in misdemeanor
delinquency findings. His experience with law
enforcement was not extensive and does not weigh in favor
of voluntariness.
• The defendant was in custody for about 11 hours before he
confessed. During that time, the defendant was
repeatedly interrogated by two sets of detectives for a
total of nearly six hours.10 The duration of the
interrogation weighs against the voluntariness of the
confession.
• The defendant did not confer with a friendly adult at any
point during the interrogation. The absence of a parent,
attorney, or other interested adult at the defendant's
10
"Police complete nearly all interrogations of juveniles
and adults in less than one or two hours. By contrast, they
extract the vast majority of false confessions only after
interrogating suspects for six hours or longer . . . ." Barry
C. Feld, Police Interrogation of Juveniles: An Empirical Study
of Policy and Practice, 97 J. Crim. L. & Criminology 219, 308
(2006).
4
No. 2013AP127-CR.ssa
interrogation weighs against the voluntariness of the
confession.11
• The defendant did not demonstrate that he understood his
right to counsel.12 At one point, a detective stated as
follows: "If you decide to answer questions now without
a lawyer present, you have the right to stop questioning
at any time you wish and the right to ask for and to have
a lawyer at any time you wish, including during
questioning." The detective then asked, "What does that
mean in your own words?" The defendant replied by
stating: "That mean like, if I'm talking to you all,
then I don't want to say no more, I can just, um, don't
say nothing."
11
The record does not reveal whether the police actually
contacted the defendant's parents, although they informed the
defendant that they had. It is undisputed, however, that the
defendant had no opportunity to confer with a friendly adult
during the interrogation. "[T]he failure 'to call the parents
for the purpose of depriving the juvenile of the opportunity to
receive advice and counsel' will be considered 'strong evidence
that coercive tactics were used to elicit the incriminating
statements.'" Jerrell C.J., 283 Wis. 2d 145, ¶43.
12
See Miranda v. Arizona, 384 U.S. 436, 444 (1966); Jerrell
C.J., 283 Wis. 2d 145, ¶20 (stating that courts determining the
constitutional validity of confessions should consider "whether
the defendant was informed of the right to counsel and right
against self-incrimination").
A forensic evaluation of the defendant performed at the
request of the defendant's attorneys concluded that "significant
questions exist as to [the defendant's] competence to waive his
Miranda rights" and that "significant concerns exist regarding
the reliability of [the defendant's] confession."
5
No. 2013AP127-CR.ssa
The defendant explained his right to stop speaking
but did not demonstrate that he understood he could ask
for an attorney or have an attorney present at any time
(including during questioning). This exchange, which
suggests the defendant did not fully grasp his Miranda
rights, weighs against the voluntariness of the
confession.
• The detectives' conduct in interrogating the defendant
was not egregious.13 The detectives spoke in a
conversational tone and were not unduly aggressive in
their demeanor while they isolated the defendant in the
interrogation room. However, the detectives employed
psychological tactics to which juveniles and those with
low intelligence are especially vulnerable.14 For
example, the detectives continually challenged the
defendant's denials of culpability, urged the defendant
to tell the truth, and misinformed the defendant about
various aspects of their investigation. The use of these
psychological techniques in the instant case exceeded the
defendant's ability to resist and weighs against the
voluntariness of the confession.
13
"[T]he totality of the circumstances standard does not
require that egregious or outrageous police conduct be
present. . . ." Hoppe, 261 Wis. 2d 294, ¶58.
14
"When used against vulnerable suspects, standard police
interrogation techniques are especially apt to lead to false
confessions. Juveniles and the mentally retarded are the most
vulnerable to modern psychological interrogation techniques."
Jerrell C.J., 283 Wis. 2d 145, ¶104 (Abrahamson, C.J.,
concurring).
6
No. 2013AP127-CR.ssa
• The cumulative effect of these factors under the totality
of the circumstances test weighs against the
voluntariness of the confession.
¶125 In sum, the defendant, a 15-year-old eighth grader of
borderline intelligence, was in custody for roughly 11 hours;
was interrogated for periods totaling nearly six hours; was
subject to psychological interrogation methods; had no parent,
attorney, or interested adult present during his interrogation;
and did not demonstrate an understanding of his Miranda rights
before making incriminating statements to the police.
¶126 The personal characteristics of the defendant and the
interrogation methods employed in the present case are
substantially similar to those in State v. Jerrell C.J., 2005 WI
105, 283 Wis. 2d 145, 699 N.W.2d 110, and the same result should
ensue. The confession in Jerrell C.J. was suppressed.
¶127 Considering the factors outlined above and the court's
holding in Jerrell C.J., and exercising special care as the case
law compels me to do, I conclude that the defendant's confession
was not voluntary and thus is not constitutionally valid.
Because admission of the confession was not harmless error,15 the
confession should be suppressed. I would reverse the decision
of the court of appeals and remand the cause for further
proceedings.
15
An error is harmless if the beneficiary of the error
(here the State) proves beyond a reasonable doubt that the error
complained of did not contribute to the result. State v. Hale,
2005 WI 7, ¶60, 277 Wis. 2d 593, 691 N.W.2d 637. The State
cannot meet its burden of proof in the instant case.
7
No. 2013AP127-CR.ssa
¶128 For the reasons set forth, I dissent.
¶129 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
8
No. 2013AP127-CR.ssa
1