June 18, 2015 – State law requires custodial interrogations of juveniles to be recorded except under limited circumstances. Recently, the state supreme court upheld a minor’s homicide conviction even though his confession was not recorded by police.
In State v. Moore, 2015 WI 54 (June 16, 2015), a five-justice majority upheld Raheem Moore’s conviction for second-degree reckless homicide as a party to a crime. Moore was age 15 when police questioned him in the shooting death of James Parish.
During custodial interrogation, which lasted about six hours during his 11-hour custody, Moore asked police to stop recording. Under state law, police must audio or video record the custodial interrogations of juveniles unless they refuse to respond or cooperate. Moore said he feared retribution from anyone he might name. Police stopped recording, and Moore confessed to shooting the victim.
After obtaining the confession, police covertly recorded Moore as he confessed again. In court, Moore challenged these confessions as involuntary and filed a motion to suppress the first confession based on state law requiring suppression of juveniles' unrecorded statements.
The circuit court denied Moore’s motion, concluding that his confession was admissible since he refused to answer police questions while being recorded.
Ultimately, he pled guilty to second-degree reckless homicide as a party to a crime, and was sentenced to nine years in prison with 11 years of extended supervision. As part of his plea agreement, he agreed to adult court jurisdiction.
On appeal, the appeals court ruled that Moore’s confessions were voluntary and police were permitted to stop recording his interrogation because Moore refused to cooperate, and refusing to respond or cooperate is one reason to allow unrecorded statements into evidence.
The supreme court upheld the conviction but on different grounds.
Three justices upheld Moore’s conviction, ruling that if the circuit court committed an error in denying Moore’s motion to suppress, it was harmless error.
Two other justices upheld the conviction – creating a five-justice majority – but ruling the circuit court committed no error since Moore was charged as an adult, and suppression is not a remedy when police do not record custodial interrogations in adult felony cases.
Two other justices dissented, concluding Moore did not voluntarily confess, and a defendant’s due process rights are violated when confessions are obtained involuntarily.
Moore’s Confession was Voluntary
Moore first challenged his confessions as involuntary. Police violate an individual’s constitutional due process rights by using tactics that coerce involuntary confessions.
In general, court’s weigh a suspects personal characteristics against the actions of police in determining whether a defendant gave his statements voluntarily.
Although Moore was young and had “below average intellect,” the majority noted that Moore, who interacted with police during prior arrests, was able to concoct and modify stories “on the fly,” suggesting a savviness when dealing with police questions.
In addition, the majority noted that police made sure Moore understood his Miranda rights and used acceptable interrogation tactics when questioning him.
“[A]lthough the detectives persuaded Moore to confess that he shot Parish, Moore’s decision to do so was a voluntary decision,” Justice Prosser wrote in a lead opinion.
Unrecorded Confession Admissible?
Moore next argued that his unrecorded confession should have been suppressed as evidence under Wis. Stat. section 938.31, which says a juvenile’s unrecorded statements during custodial interrogation cannot be used against the juvenile unless “the juvenile refused to respond or cooperate in the custodial interrogation.”
Three justices ruled that Moore’s unrecorded statements could not be used against him because he didn’t refuse to respond or cooperate. He merely voiced a preference that police detectives turn off the recording device because he feared for his safety.
“Moore never told the detectives he would end the interrogation or stop answering questions if the recorder was left on,” Justice Prosser noted.
“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.”
The lead opinion also rejected Moore’s claim that his second confession was inadmissible, because police recorded it covertly without his knowledge, distinguishing a case in which police did not record the entire interrogation until after the confession.
Remedy for Error
Three justices noted that under section 938.31, unrecorded statements of juveniles must be suppressed in a juvenile proceeding alleging delinquency. But unrecorded statements can still be used against adults who are charged with felonies.
Moore was charged as an adult, but the majority noted that allowing the use of unrecorded statements against Moore conflicts with a prior decision, State v. Jerrell C.J., in which the court held that all juvenile interrogations must always be recorded.
Thus, the legislative scheme conflicts with Jerrell. “This court is highly mindful of the separation of powers,” Prosser noted. “It does not engage in direct confrontation with another branch of government unless the confrontation is necessary and unavoidable.”
Here, Prosser said confrontation was avoidable since “any error in admitting Moore’s confession was harmless in this case.” An error is harmless, and does not require reversal, if the error has not substantially affected a party’s rights.
Justice Prosser explained that allowing Moore to withdraw his guilty plea to second-degree reckless homicide as a party to a crime was not warranted. Even without the confession, Prosser noted, there was enough evidence to convict him of that crime.
“Even if the statements Moore made while the recorded was turned off had been suppressed, it is clear beyond a reasonable doubt that he would have pled guilty to the reduced charge,” wrote Justice David Prosser for the five-justice majority.
Justice Annette Ziegler wrote a concurring opinion, joined by Chief Justice Patience Roggensack. Justice Ziegler agreed that Moore’s confessions were given voluntarily, and that his conviction for second-degree reckless homicide should be upheld.
She wrote separately, though, to say the 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,” noting another statute. The lead opinion did not reach this conclusion.
Justice Ziegler said section 972.115(2)(a) “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.”
Section 972.115(2)(a) notes state policy in favor of recorded custodial interrogations, and allows a jury to consider the absence of a recording in evaluating the evidence.
This differs from juvenile delinquency cases, where unrecorded statements must be suppressed if the juvenile did not refuse to respond or cooperate during the interrogation. The split seemingly leaves this question open for future cases.
Justice Shirley Abrahamson wrote a dissent, joined by Justice Ann Walsh Bradley. Justice Abrahamson concluded that Moore’s conviction should be reversed because his confessions were involuntary, violating constitutional protections of due process.
“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,” and was “subject to psychological interrogation methods,” Abrahamson wrote.
Justice Abrahamson also noted that Moore “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."