dissenting.
Normally, I am a strong advocate of the exercise of discretion by trial judges, but in this instance, I am compelled to part company with the trial judge and the Court majority. I am convinced that the trial judge did abuse his discretion in ruling that Tammy Evans’ admission should be excluded because the State did not meet its burden of proof.
My position in the case focuses almost totally upon the decision letter of the trial judge. To avoid any possibility of unfairly quoting out of context, I set forth the entire text:
Dear Counsel:
This follows recent hearing on the Motion to Suppress and will give you the Court’s reason for granting the motion in accord with the enclosed order. Before turning to the Motion to. Suppress at the hearing, the Court ruled on a pending Motion to Remand to County Court. That motion is denied for the reasons stated on the record at the hearing.
The facts of the case are fairly straight forward. Defendant took her infant son to a pediatrician for symptoms not otherwise related to this case. During the course of that and subsequent examinations there were discovered two fractures of the baby’s ribs; one seven to ten days old and the other older but not yet healed. In the opinion of an examining physician, the nature and location of the fractures in view of the pliability of an infant’s bones made it unlikely that the injuries occurred in the way suggested by the defendant and likely that the infliction of the injuries was non-accidental. After these discoveries the defendant was interviewed by Officer Everitt and Ms. Frank of DFS at the Cheyenne Police Department.
After properly advising the defendant of her rights to counsel and to remain silent and receiving written acknowledgment and waiver of those rights, Officer Everitt interviewed the defendant for an hour and 12 minutes, a portion of which interview was recorded. The remainder was not, the recording devise having been inoperative for unexplained reasons. The Court accepts Officer Everitt’s statément that the failure to record the entire interview was inadvertent. Officer Everitt’s technique and approach during the interview were characterized quite accurately at the hearing as “aggressive.” Important to this decision is that throughout the one hour and 12 minute interview, even given the aggressiveness of the interview technique, the defendant’s denial of culpability were persistent and consistent. That interview ended and Officer Everitt turned to an interview of defendant’s husband while the defendant remained outside.
After her husband’s interview, the defendant, speaking to him, decided that she needed to go back to Officer Everitt to clarify some things that had occurred to her upon hearing her husband mention a certain individual’s name. None of this second, shorter interview was recorded, but at or near its completion according to Officer Everitt’s testimony the defendant admitted that she had squeezed the baby, squeezed him too hard, and knew at the time that she had hurt him. She then gave a short written statement that she had “hugged” the baby and hugging him too hard, hurt him. Defendant moved for suppression of the inculpatory statements contending that they were involuntary under the standards adopted by the Wyoming Supreme Court relying particularly on Black v. State, 820 P.2d 969.
*1130The decision here is not based on Black, supra, the rationale of which is that even though Ms. Black was not in custody when she was interrogated (therefore rendering the requirement of the Miranda advisement inapplicable) the statement was not voluntary and that its admission therefore constituted a violation of “... the due process clause of the Wyoming Constitution”. And, the Court said, “We are free to grant more rights to our citizens under the Wyoming Constitution than they are entitled to have under the United States Constitution.” (Citations omitted.) There are similarities between the two cases because in Black the Miranda advisements were not required and in the present case they were given and acknowledged. Hence, in both cases, the necessity of the rights advisement isn’t the issue. But the similarity ends there. In the view of this Court, the dissenting justices in Black had the more persuasive argument.
Nevertheless, Black remains authoritative where it is applicable. But it need not be and is not relied upon here. Other Wyoming Supreme Court precedent of long standing is applicable and controlling. “The State always has the burden of proving by a preponderance of the evidence that the confession was voluntary.” Garcia v. State, 777 P.2d 603, 605 (Wyo.1989); see also Dodge v. State, 562 P.2d 303 (Wyo.1977). This standard is reiterated in Witt v. State, 892 P.2d 132 (Wyo.1995), at 139: “In opposition to a motion to suppress allegedly involuntary statements, the prosecution must convince the trial judge by a preponderance of the evidence that the confession was voluntary.” Here, as previously stated, there was a long period of aggressive interrogation throughout which the defendant denied culpability and the testimony is that she acknowledged culpability at the end of a subsequent shorter interview, none of which was recorded. This raises a question concerning the nature of the second interview that caused the defendant to make her admissions when she had earlier failed to do so. Given these facts, and under the totality of the circumstances here, the Court is unable to make the requisite finding that the State has shown by a preponderance of the evidence that the statement was voluntary. The situation leaves unanswered too big a question.
It has been the observation of the Court over the past several years that the practice of local law enforcement agencies vary. Sometimes none of the questioning and admissions of a defendant are recorded. Sometimes all of them are. Sometimes part of it is recorded and part of it is not. Of course, there is no requirement that statements be recorded. But when part of a statement during which portion the accused consistently denies culpability, is recorded and a subsequent portion during which admissions are made is not recorded, questions arise. This Court has given police officers the benefit of any doubt when their testimony concerning the circumstances surrounding a statement is in direct conflict with that of the accused. This is simply because, all other things being equal, their testimony has a higher level of reliability and credibility than does that of many other witnesses. The obviously self-serving nature of the testimony of the accused, while by no means controlling, must be considered. But, law enforcement agencies expose themselves to criticism and doubt when there is no policy concerning the recording of statements and the practice varies so from case to case and within their work on a given case. And, correctly or not, there may be something of a local standard at work here.
This Court has for many years in one or another capacity had occasion to review statements taken by local law enforcement agencies. They have adhered to high standards. It is, to say the least, unusual to encounter one in which the tone and technique of the interview is as aggressive, insistently accusatory, and demanding as this one is. None of this is to say that Officer Everitt coerced the admissions from the defendant. But, it does make a record, the effect of which is that the State is not able to carry its burden of proof by a preponderance of the evidence that the admission was voluntary as required by the cited cases. Thank you.
*1131I can discern nothing in the record of the hearing that distinguishes the circumstances surrounding the second statement from Evans from the circumstances of the first statement. The trial court assumed that the “aggressive” technique and approach of Officer Everitt continued. I assume, like the trial court, that in the second interview the exchange between Evans and Officer Everitt continued to be one in which “the tone and technique of the interview is as aggressive, insistently accusatory, and demanding as this one is.” The trial court stated, however, “None of this is to say that Officer Everitt coerced the admissions from the defendant.” The only differences then between the first interview and the second interview are that after the second interview Evans made a damaging admission and none of the second interview was recorded, while the first interview was recorded in part. Of course, the making of an admission is not a valid reason to conclude that the State failed in its burden of proof. The trial court conceded in its ruling that the law does not require recording. It follows that the failure to record is not a valid reason to conclude that the State failed to meet its burden of proof on the issue of voluntariness.
While the majority opinion offers a scholarly review of the law relating to voluntariness of confessions or admissions, it does not seem to have much to do with the rationale reported by the district court for its ruling. It is painfully clear to me that the purpose of the ruling in the district court was to require local law enforcement officers to record interviews of persons suspected of criminal activity. Yet, the district court in its ruling acknowledged that the law does not require recording, and does not address the multitude of different situations in which recording simply would be impracticable. What we really must discern is an effort, however well meaning, by an officer of the judicial department to direct the activities of the executive branch of government. That is not appropriate, and we have in the past made a point of the distinction. See e.g., Hansen v. State, 904 P.2d 811, 819 (Wyo.1995); Billis v. State, 800 P.2d 401, 413 (Wyo.1990); and Petition of Padget, 678 P.2d 870, 873 (Wyo.1984).
I have no hesitancy in stating unequivocally that an order of a trial court to require the recording of all statements of persons suspected of criminal activities would fall afoul of our constitutional doctrine separating the powers of the judicial department from the powers of the executive department. An effort to accomplish that result by an eviden-tiary ruling cannot be approved. It clearly constitutes an abuse of discretion, whichever of our varying definitions of abuse of discretion one may care to invoke. The one that offers the best fit is found in Martin v. State, 720 P.2d 894, 897 (Wyo.1986):
Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.
Surely the exercise of discretion in ruling upon the voluntariness of an admission is applied arbitrarily and capriciously when the goal the court seeks to accomplish is the invasion of the constitutional prerogatives of another department of government.
I would reverse this case and remand it for trial at which the admission by Evans would be admitted into evidence, with the issue of voluntariness being submitted to the jury.