The supreme court affirms the court of appeals’ conclusion that 15-year-old Raheem Moore’s confession was voluntary, but it rejects the court of appeals’ reading of § 938.31, which requires juvenile confessions to be recorded unless the juvenile “refused to respond or cooperate” with the interrogation if it was being recorded, § 938.31(3)(b) and (c)1.
The court of appeals held that Moore’s preference not to be recorded was enough to constitute a refusal to respond or cooperate, but the supreme court disagrees: “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.” (¶80). While a majority of the court holds the police erred in turning off the recorder while interrogating Moore, there’s no majority agreement on the remedy for the error. A majority does agree that any error in this case was harmless, so the question of remedy is left for another day.
Moore, who was charged with homicide, made incriminating statements to police 11 hours after he was arrested. His most incriminating statement—that he was the shooter and not merely an accomplice—came during a portion of the interrogation that was not being recorded as required by §§ 938.195 and 938.31(3)(b), statutes ostensibly enacted to codify the holding of State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110. Moore argues that: 1) his entire confession should be suppressed because it was involuntary; and 2) the statement he made during the unrecorded portion of the interrogation was inadmissible under § 938.31(3)(b) because of the violation of the mandate it be recorded.
Voluntariness of Moore’s confession
¶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.” [State v.] Lemoine, [2013 WI 5,] 345 Wis. 2d 171, ¶17[, 827 N.W.2d 589]. 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 shot [the victim], Moore’s decision to do so was a voluntary decision….
A dissent (Justice Abrahamson, joined by Justice Bradley) concludes Moore’s confession wasn’t voluntary. (¶¶118-29).
The majority opinion cites the established standard for assessing voluntariness (¶¶55-57) and makes no explicit modifications to that standard. That said, however, Jerrell C.J. accepted “the need to exercise ‘special caution’ when assessing the voluntariness of a juvenile confession, particularly when there is prolonged or repeated questioning or when the interrogation occurs in the absence of a parent, lawyer, or other friendly adult.” 283 Wis. 2d 145, ¶21, quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (citing In re Gault, 387 U.S. 1, 45 (1967); Gallegos v. Colorado, 370 U.S. 49, 53-55 (1962); Haley v. Ohio, 332 U.S. 596, 599-601 (1948)). While the majority references this rule (¶57), its reasoning seems to throw that “special caution” to the wind.
Take, for instance, the absence of a parent at Moore’s interrogation, a fact the court barely considers at all, and then only in footnotes. (¶¶13 n.8, 29 n.14, 43 n.15, 65 n.19). Even then, the court implies that Moore should’ve asked to speak to a parent (¶43 n.15), when in fact § 938.19(2) requires police to notify Moore’s parent or guardian. And the court suggests Moore should have expressly alleged a violation of § 938.19(2) in his motion to suppress the confession (¶65 n.19), yet the state has the burden to prove voluntariness, State v. Agnello, 226 Wis. 2d 164, 179-80, 593 N.W.2d 427 (1999), and therefore bears the burden of proving the statutorily required notification was accomplished.
Consider also the court’s reliance on Moore’s purported ability to “explain” his right to end questioning. (¶63). But what Moore actually said is quoted by the court, and it shows a lack of understanding of what it takes to end questioning because Moore believed not saying anything would successfully invoke the right to silence (¶14), but that isn’t enough after Berghuis v. Thompkins, 560 U.S. 370 (2010). As a final example, note the majority’s glib acceptance of standard adult interrogation tactics—”minimizing, suggesting that [the victim’s] death may have been an accident, and tell Moore that other witnesses were saying he shot [the victim]”—even though they may have influenced Moore. Why? Because “they are tactics that courts commonly accept.” (¶64).
The majority opinion, in short, gives lip service rather than teeth to the “special caution” standard for determining voluntariness of juvenile confessions. The result, as Moore’s briefs (and the dissent (¶126)) point out, is that Moore’s confession is found to be voluntary even though the circumstances in his case are very much like those in Jerrell C.J., where the confession was found to be involuntary. And that means lawyers and courts will have to struggle to reconcile the disparate results of these two similar cases.
Refusal of juvenile suspect to cooperate with recording
After Jerrell C.J., the legislature enacted §§ 938.195 and 938.31(3), which were apparently intended to codify Jerrell C.J.‘s rule that custodial interrogation of juveniles in must be electronically recorded “where feasible, and without exception when questioning occurs at a place of detention.” 283 Wis. 2d 145, ¶58. Under § 938.31(3)(b) an unrecorded juvenile confession is inadmissible, with certain limited exceptions, one being when the juvenile refuses to respond or cooperate if he or she is being recorded, § 938.31(3)(c)1. The question here is whether the crucial part of the Moore’s statement, which was unrecorded, was covered by this “refusal” exception.
The court of appeals said yes, but the supreme court disagrees. Under the plain language of the statute it isn’t enough that a juvenile request or express a preference that a recording device be turned off; instead, “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.” (¶80). That isn’t what happened here:
¶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.” ….
¶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 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.
So a majority of the court concludes that, because Moore had not “refused to respond or cooperate,” the detectives should not have turned off the recording. (¶84). However, there is no majority as to the remedy for this violation of §§ 938.195 and 938.31(3). Moore argued that § 938.31(3)(b) required exclusion of the unrecorded statement, but the lead opinion says that a “literal reading” of that statute limits the remedy of exclusion to delinquency proceedings. (¶77). Moore was in adult court because of the charges against him, and the remedy for failing to record statements used in adult criminal proceedings is a jury instruction about considering the absence of a recording in light of the policy of recording statements, § 972.115(2)(a).
The lead opinion says that the statutory scheme enacted after Jerrell C.J. presents “a dilemma” because it “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.” (¶77). Moreover, determining whether that is what the legislature intended “implicates the legislature’s authority to supersede this court’s exercise of superintending authority” in Jerrell C.J. (¶89). The court avoids the potential direct confrontation with the legislature on this issue for now, however, because “[n]o four members of this court agree on the proper remedy for a violation of Wis. Stat. § 938.195 in the criminal prosecution of 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.” (¶91).
A concurrence by Justice Ziegler (joined only by Justice Roggensack) would hold that suppression of a juvenile’s unrecorded statements under § 938.31(3)(b) is not an available remedy if a juvenile is in adult court. (¶¶103-17). The two dissenters (Justices Abrahamson and Bradley) don’t discuss the remedy for failing to record the confession of a juvenile that will be used in adult court because, as noted above, they concluded Moore’s confession was involuntary. (¶119 n.3).