Criminal Procedure — right against self-incrimination – juveniles — recording

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — right against self-incrimination – juveniles — recording

Where a juvenile suspect insisted that his statements not be recorded, his statements are admissible.

“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, as we have already seen, 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. Raynard’s words and actions in these circumstances constituted a ‘refusal.’ No magic words were required. Cf. State v. Neitzel, 95 Wis. 2d 191, 195-96, 289 N.W.2d 828 (1980) (defendant’s insistence on waiting for his lawyer construed as refusal to take breathalyzer test); State v. Rydeski, 214 Wis. 2d 101, 106-07, 571 N.W.2d 417 (Ct. App. 1997) (defendant’s conduct can constitute refusal to take breathalyzer test even when no verbal refusal given).”

“Therefore, because Raynard refused to ‘respond or cooperate in the custodial interrogation if an audio or audio and visual recording was made,’ and because police ‘made a contemporaneous audio or audio and visual recording or written record of the juvenile’s refusal,’ we conclude that his unrecorded statement and the recorded statement that followed were admissible. See WIS. STAT. § 938.31(3)(c)1. Consequently, the trial court did not err in denying Moore’s motion to suppress.”

Affirmed.

Recommended for publication in the official reports.

2013AP127-CR State v. Moore

Dist. I, Milwaukee County, Borowski, J., Curley, J.

Attorneys: For Appellant: Hirsch, Eileen A., Madison; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison