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, which codifies the holding of State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110. The court of appeals rejects Moore’s arguments 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 should be suppressed because of the violation of the mandate it be recorded.
The bulk of the opinion sets out the facts regarding Moore’s interrogation and, in light of those facts, assesses the voluntariness of Moore’s statement in accordance with the now-familiar standards of Jerrell C.J. (¶¶2-40). Though Moore was young and was interrogated over a long period of time, he had breaks for meals, cigarettes, and use of the bathroom, he had “experience” with the police, and the psychological pressure used was not inordinate. Thus, the court concludes, “this was not an instance of a young defendant ultimately ‘cracking’ under police pressure following hours of unrelenting, excessively manipulative interrogation. Rather, upon our independent review of the transcript, we agree with the State that Moore’s interviews are more accurately described as ‘a frank give-and-take between experienced detectives and an experienced juvenile suspect … who knew all along he did not have to talk to police and could demand a lawyer.’” (¶40).
The more interesting issue is whether the unrecorded statement Moore made (and its subsequently recorded reiteration) must be suppressed. Generally, to be admissible, a juvenile’s confession must be recorded, § 938.31(3)(b). There is an exception if the juvenile “refused to respond or cooperate in the custodial interrogation” if it was being recorded, but then only if there is a contemporaneous recording of the juvenile’s refusal, § 938.31(3)(c)1. The majority concludes 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:
¶47 Contrary to what Moore argues, the transcript shows that this is not a case where he merely “expressed a preference” of having the recording turned off after detectives gave him the option of leaving it on or off. Rather, Moore broached the topic, and … he did so on two separate occasions. Moore explained in no uncertain terms that he wanted the recording off because he feared for his safety; he was afraid of his accomplice, Raynard Franklin. Although Moore had been assured earlier that the police did not share interview recordings with alleged accomplices or the public generally, he still wanted the recording device turned off. He was involved in a shooting, knew there would be consequences for the crime, and feared what might happen should Raynard find out that he told the police the truth. Moreover, the detectives took great care to ensure that Moore was affirmatively refusing to cooperate with having the recording turned off. [Moore]’s words and actions in these circumstances constituted a “refusal.” No magic words were required….
The concurring judge has a very different take, 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). With an unrecorded admission in hand, the police then devised a means to surreptitiously record Moore making the admission again. (¶¶22-23). The concurrence continues:
¶51 I conclude that this procedure runs contrary to the principles underlying Jerrell C.J. and Wis. Stat. § 938.31. A juvenile’s right to the safeguards of a recorded interrogation can be waived only in limited circumstances—much like a criminal defendant’s right to counsel. Whether a juvenile refuses to respond or cooperate is not ambiguous—either he refuses or he does not. Police officers should not guess or assume that a defendant is not cooperating to the extent that the officers have to seek guidance from their supervisors and then secretly record the defendant. Like the right to counsel, a demand to turn off a recording device stemming from a refusal to respond to questions or cooperate must be clear and unequivocal. Nothing in this text can fairly be considered an unambiguous refusal by Moore to continue the interview unless the recorder was turned off. Nor is there any explanation as to why police officers essentially gave Moore the right to choose whether to terminate recording an interrogation that our supreme court and the legislature mandated to be recorded.
¶52 Jerrell C.J., Wis. Stat. § 938.195, and case law explaining that the right to counsel must be clear and unequivocal, see Davis v. United States, 512 U.S. 452 (1994), all stem from the same underlying principals that defendants have a constitutional right to protect themselves against self-incrimination. If police officers can decide, without unambiguous statements, that a juvenile defendant will not cooperate if a recording device is on, then the instituted safeguards protecting these defendants will be swallowed by a system that allows officers to ask leading questions and create records to protect themselves while simultaneously disregarding the juvenile’s constitutional rights.
Readers can make their own assessment of this dispute using the pertinent exchange between Moore and the police is reproduced in the opinion (¶¶21-22, 46). Curiously, though, if the concurrence is right, it’s hard to see why it concludes the violation of § 938.31 is “harmless” (¶49) given that State v. Dionicia M., 2010 WI App 134, ¶¶3-4, 26, 329 Wis. 2d 524, 791 N.W.2d 236, 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.