Issues (composed by On Point)
Whether a juvenile “refused to respond or cooperate” during a portion of a custodial interrogation if it was going to be recorded, such that § 938.31(3)(c)1. allowed the interrogating officers to turn off the recording device.
Whether an error in failing to record a portion of the custodial interrogation requires exclusion of the statements that were recorded.
As described in our post on the court of appeals decision, Moore, a 15-year-old 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 recorded as required by § 938.195, the statute codifying the holding of State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110. Generally, to be admissible, a juvenile’s confession must be recorded, § 938.31(3)(b), but there is an exception if the juvenile “refused to respond or cooperate in the custodial interrogation” if it was being recorded, but only if there is a contemporaneous recording of the juvenile’s refusal, § 938.31(3)(c)1. In this case two court of appeals judges concluded that Moore did indeed “refuse to respond or cooperate” with a recorded interrogation during the portion in which he confessed to being the shooter, rejecting Moore’s argument he was only expressing a “preference” that the recording be stopped.
A concurring judge had a very different take, however, concluding Moore didn’t refuse to respond or cooperate, as he never asked directly that the recorder be turned off and did not affirmatively say he would not speak to the officers if the device remained on; instead, he just answered in the affirmative when the officers conducted a long series of leading questions about Moore’s discomfort with the recording device, the “obvious purpose” of which “was to make a record that turning off the recorder was Moore’s idea, not the officers’.” (¶50). Curiously, though, the concurring judge concluded the violation of § 938.31 was “harmless” (¶49). That seems to conflict with State v. Dionicia M., 2010 WI App 134, ¶¶3-4, 26, 329 Wis. 2d 524, 791 N.W.2d 236, which held that the purpose of the Jerrell C.J. rule is not served by allowing an officer to turn on the recorder only after a juvenile has been convinced to confess, and therefore partially recorded statements are inadmissible. The decision in this case will thus provide occasion for the supreme court to address what it means for a juvenile to refuse to respond or cooperate for purposes of § 938.31(3)(c)1. and whether Dionicia M. was correct to mandate exclusion of partially recorded statements.