2015 WI 54 

SUPREME COURT OF WISCONSIN

CASE NO.: 2013AP127-CR 

COMPLETE TITLE: State of Wisconsin, 

 Plaintiff-Respondent, 

 v. 

Raheem Moore, 

 Defendant-Appellant-Petitioner. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

(Reported at 352 Wis. 2d 675, 846 N.W.2d 18) 

(Ct. App. 2014 – Published) 

PDC No.: 2014 WI App 19 

OPINION FILED: June 16, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 23, 2014 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Milwaukee 

 JUDGE: David Borowski 

 

JUSTICES: 

 CONCURRED: ZIEGLER, J., ROGGENSACK C.J., concur. (Opinion 

Filed.) 

 DISSENTED: ABRAHAMSON, BRADLEY, JJ. Dissent. (Opinion 

Filed.) 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the defendant-appellant-petitioner, there were briefs 

by Eileen A. Hirsch, assistant state public defender, and oral 

argument by Eileen A. Hirsch. 

For the plaintiff-respondent, the cause was argued by 

Daniel J. O’Brien, assistant attorney general, with whom on the 

briefs was J.B. Van Hollen, attorney general. 
2

An amicus curiae brief was filed by Keith A. Findley, 

Wisconsin Innocence Project, Frank J. Remington Center at the 

University of Wisconsin Law School, and Steven A. Drizin, Laura 

H. Nirider, and Northwestern University School of Law, on behalf 

of the Center on Wrongful Convictions of Youth. 
2015 WI 54

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2013AP127-CR 

(L.C. No. 2008CF5160) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin,

 Plaintiff-Respondent, 

 v. 

Raheem Moore, 

 Defendant-Appellant-Petitioner. 

FILED 

JUN 16, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 DAVID T. PROSSER, J. This is a review of a published 

decision of the court of appeals,1 which affirmed a judgment 

convicting Raheem D. Moore (Moore) of second-degree reckless 

homicide as party to a crime.2 Moore pled guilty to the charge 

 

1 State v. Moore, 2014 WI App 19, 352 Wis. 2d 675, 846 

N.W.2d 18. 

2 Contrary to Wis. Stat. §§ 940.06(1) and 939.05. All 

subsequent references to the Wisconsin Statutes are to the 2007-

08 version unless otherwise indicated. 
No. 2013AP127-CR 

2 

after the Milwaukee County Circuit Court denied his motion to 

suppress certain statements he made during police questioning.3

¶2 This case presents issues related to our decision in 

State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 

N.W.2d 110, and the Wisconsin Legislature's subsequent enactment 

of Wis. Stat. § 938.195, which requires that custodial 

interrogation of juveniles be recorded except under limited 

circumstances. Moore contends that his confession to police was 

involuntary. Alternatively, he contends that the incriminating 

statements he made that were not recorded during his custodial 

interrogation as a juvenile were inadmissible because he did not 

"refus[e] to respond or cooperate" with detectives as required 

by an exception to the recording statute. Accordingly, he 

requests that he be allowed to withdraw his plea. 

¶3 Moore, then 15 years old, was arrested on October 10, 

2008, after being implicated in a Milwaukee homicide. Police 

detectives questioned Moore for approximately five and a half 

hours over a period of nine hours from 2:49 p.m. until 11:44 

p.m. 

¶4 On two occasions during this questioning, Moore asked 

the detectives to turn off the device recording his

interrogation. After the detectives complied with Moore's 

second request, he confessed to being the shooter in the 

 

3 Judge David L. Borowski presided over the plea hearing and 

entered judgment. Judge Jeffrey A. Conen presided over the 

motion to suppress hearing. 
No. 2013AP127-CR 

3 

homicide. Thereafter, the detectives covertly recorded Moore 

reaffirming his confession. 

¶5 Moore was initially charged with first-degree reckless 

homicide. The circuit court held a Miranda4/Goodchild5 hearing 

to review the voluntariness of Moore's statements made while the 

recording device was turned off as well as the voluntariness of 

his later statements that were covertly recorded.6 The circuit 

court determined that Moore had voluntarily waived his Miranda 

rights and was intelligent enough to request that the recording 

device be turned off. Thus, Moore's statements were not 

suppressed. Following this ruling, the State amended the charge 

to second-degree reckless homicide as party to a crime. Moore 

pled guilty to the amended charge and was sentenced to 11 years 

of initial confinement and nine years of extended supervision. 

¶6 Moore appealed the circuit court's decision on the 

admissibility of his statements. The court of appeals ruled 

Moore's statements were voluntary. It also concluded that Moore 

refused to cooperate with the detectives, which permitted them 

to turn off the recording device. 

¶7 Moore successfully petitioned this court for review. 

 

4 Miranda v. Arizona, 384 U.S. 436 (1966). 

5 State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 

N.W.2d 753 (1965). 

6 Moore does not contend that the statements he made prior 

to 10:42 p.m.——the time at which the recorder was deliberately 

turned off——were involuntary. 
No. 2013AP127-CR 

4 

¶8 We agree with the circuit court that Moore's 

statements were voluntary. However, we conclude that Moore did 

not "refus[e] to respond or cooperate" with police during his 

interrogation. Consequently, it was a violation of Wis. Stat. 

§ 938.195 for police to cease recording the interrogation. 

¶9 Nevertheless, the error, if any, in not suppressing 

some of Moore's statements, was harmless. Moore admitted to 

participating in the crime prior to the recording device being 

turned off, and he repeated his unrecorded confession that he 

was the shooter after the device was turned back on. 

Accordingly, we affirm the court of appeals. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

¶10 Police responded to a reported homicide at 2626 North 

23rd Street in Milwaukee at approximately 9:26 p.m. on October 

8, 2008. When officers arrived, they found James W. Parish 

(Parish) face down on the sidewalk. He was pronounced dead at 

the scene. An autopsy revealed that Parish was shot in his 

right flank, the bullet remained in his heart, and loss of blood 

from the gunshot wound caused his death. 

¶11 Milwaukee Police Detective Christopher Blaszak 

interviewed Ronald Franklin (Ronald) on October 10, 2008. 

Ronald said that Moore came to his girlfriend's residence with 

Ronald's brother, Raynard Franklin (Raynard), after the 

shooting. According to Ronald, Moore told him that he and 

Raynard had attempted to rob a victim and that Moore shot the 

victim when he became uncooperative. 
No. 2013AP127-CR 

5 

¶12 Moore was arrested shortly after 12:00 p.m. that day 

and was questioned by two pairs of police detectives. The first 

pair, Scott Gastrow and Charles Mueller, began their questioning 

at 2:49 p.m. The second pair, Paul Lough and David Salazar, 

took over the interrogation at about 8:30 p.m. The

interrogations were audio recorded, with the exception of the 

brief periods discussed below. 

A. 2:49 p.m. 

¶13 Moore's interrogation took place on the fourth floor 

of the Criminal Investigation Bureau in Milwaukee. When 

Detectives Gastrow and Mueller began their questioning of Moore, 

they asked him basic questions about where he lived, his family, 

and his personal background, including his age, criminal 

history,7 and education.8 Detective Gastrow also asked Moore 

whether he had any mental or learning problems. Moore answered 

 

7 Moore told the Detectives that he had been arrested 

previously for possession of marijuana, possession of a 

dangerous weapon, and forgery. 

8 During this early questioning, the detectives asked Moore 

for his father's phone number and address, which Moore supplied. 

They also asked Moore about his mother. Moore indicated his 

mother was at Community Corrections for a drug addiction 

problem. Detectives also asked Moore whom they should contact 

in case of an emergency. Moore listed his father and aunt. 
No. 2013AP127-CR 

6 

that he did not have mental problems and that he coped with his 

learning problems.9

¶14 Detectives Gastrow and Mueller furnished Moore with a 

written copy of his Miranda rights. They read him his rights 

one at a time and stopped to ask him if he understood each 

right. During this colloquy, Detective Gastrow also asked Moore 

to explain the right to end questioning without a lawyer. Moore 

stated, "That mean like, if I'm talking to you all, then I don't 

want to say no more, I can just, um, don't say nothing."10

¶15 After the detectives read Moore his Miranda rights, he 

agreed to talk to them. The detectives asked Moore about what 

happened on October 8. 

¶16 Initially, Moore told the detectives that he was not 

involved in the shooting. He told them that he had been on 

Ronald's girlfriend's porch at the time of the shooting. When 

the detectives told Moore that witnesses said otherwise, Moore 

changed his story and said that he had been walking near the 

porch with three friends when he heard the gunshot. Again, the 

 

9 Doctor David W. Thompson (Dr. Thompson), a child 

psychologist, testified on Moore's behalf at the 

Miranda/Goodchild hearing. Dr. Thompson was concerned with 

Moore's confession based on his age, functionally low IQ, and 

Attention Deficit Hyperactivity Disorder. Moore's IQ tests 

indicated he was in a "borderline range of intellectual 

functioning." 

10 Detective Gastrow testified at a later hearing that Moore 

appeared to understand his Miranda rights. 
No. 2013AP127-CR 

7 

detectives challenged Moore's story, but Moore insisted that he 

was not involved in the shooting. 

¶17 The detectives showed Moore a photo array that 

included both Ronald and Raynard Franklin and asked Moore who 

"Jevonte" was.11 Moore identified Ronald, but indicated that he 

did not know Raynard. Moore also said that he knew someone 

named Jevonte, but did not see him pictured in the array. 

¶18 The detectives took a break from the interrogation at 

4:02 p.m. They allowed Moore to use the restroom and provided 

him with bologna sandwiches, a bag of chips, and water. The 

break ended at 4:30 p.m. 

¶19 After the break, Moore admitted some involvement in 

Parish's death. Moore said he was with someone named Jevonte, 

but that Jevonte was not in the photo array he had been shown. 

Moore claimed that Jevonte shot Parish after robbing him, but 

that Moore was "just part of it" as a "party to a crime." Moore 

said he was supposed to get some of the money from the robbery. 

¶20 Moore provided the detectives with a detailed story of 

the shooting, including the location, his position at the scene, 

the type of gun used, and the fact that the victim was 

purchasing drugs from the back window of a house. He stated 

 

11 Moore was arrested after police interviewed Ronald

Franklin. The record is not clear whether the detectives 

obtained the name "Jevonte" from some source like Franklin, or 

whether the detectives hypothesized the name as a technique in 

interrogation. See ¶¶31, 34, infra. 
No. 2013AP127-CR 

8 

that the robbery had been Jevonte's idea and that Jevonte had 

provided the gun. 

¶21 Moore said that, although he did not see Jevonte fire 

the gun, he did see the flash of the gun when Jevonte fired it. 

He stated that after the gunshot, he and Jevonte fled the scene. 

According to Moore, he met up with Jevonte a short time later, 

then went to Ronald's girlfriend's house. 

¶22 Moore also provided specific details about Jevonte, 

saying that he was 15 or 16 years old12 and five feet ten inches 

tall with a medium build. However, Moore could not provide the 

detectives with Jevonte's last name, where he lived, what school 

he went to, whether he had brothers, his mother's name, or his 

phone number. 

¶23 Moore admitted that his earlier stories were lies. 

Still, the detectives challenged Moore's new story, suggesting——

among other things——that Moore could not have seen the flash of 

the gun from where he claimed to have been standing. The 

detectives also told Moore that Ronald and others had named 

someone else as the shooter; Moore told them that Ronald and the 

others did not know Jevonte. 

 

12 Later, Moore stated that Jevonte was 18 or 19 years old. 
No. 2013AP127-CR 

9 

¶24 The recording ceased at approximately 5:15 p.m. due to 

a malfunction.13 Detectives Gastrow and Mueller ended their 

questioning at approximately 6:00 p.m. 

B. 8:28 p.m. 

¶25 Detectives David Salazar and Paul Lough began to 

question Moore at 8:28 p.m. Detective Salazar asked Moore 

whether he would be willing to go to the crime scene with them, 

and Moore agreed. Detective Salazar read Moore his Miranda 

rights again and Moore indicated he understood. 

¶26 At approximately 8:39 p.m., Moore and the detectives 

left for the crime scene. Detective Salazar sat in the back 

seat of a police vehicle with Moore, and Detective Lough drove. 

¶27 Moore directed them to the crime scene. During the 

drive, Detective Salazar asked Moore about school, his favorite 

classes, and potential career paths after high school. When 

they arrived at the scene, Moore explained his story of what 

happened. Moore said that Parish had walked down an alley and 

crossed a gangway. Moore stated he was at the mouth of the 

alley while Jevonte was in the yard near Parish. According to 

Moore, Jevonte called to Parish, telling him that "somebody 

wanted him at the window" of the house where Parish had 

purchased drugs. Moore said that Jevonte then shot Parish. 

 

13 At the suppression hearing, the parties agreed that 

"malfunctions happen from time to time, it was not done 

purposefully and was not actually known until after the fact." 

Moore does not suggest that the malfunction implicates the 

admissibility of his statements. 
No. 2013AP127-CR 

10 

¶28 After the shooting, Moore said, they ran west down the 

alley and crossed 23rd Street and made it to 24th Street. 

Eventually, Moore and Jevonte separated. Moore went to Ronald's 

girlfriend's house, while Jevonte went home. 

¶29 Detective Salazar asked Moore why people in the

neighborhood did not know Jevonte. Moore suggested that those 

people were lying. Detective Salazar pointed out that Moore's 

father also said he never met Jevonte, which Moore said was 

probably true.14

¶30 Moore was given time to eat dinner under the 

supervision of police officers. The interrogation resumed at 

9:47 p.m. 

¶31 Detective Salazar told Moore that police knew Jevonte 

was not real and that Moore had already been identified as being 

at the crime scene. Moore responded that he was worried the 

other person involved "might try to kill [him] or something." 

Detective Salazar assured Moore that no one would kill him. 

¶32 At this point, Moore asked that the recorder be turned 

off: 

MOORE: Ah you mind take that thing off. 

SALAZAR: What thing off? 

MOORE: Ah what you call it? 

 

14 Although Moore had provided his father's phone number 

earlier in the day, it is unclear whether or to what extent 

police actually contacted him. 
No. 2013AP127-CR 

11 

SALAZAR: The recorder? Well the reason why we don't 

want the recorder turned off [is] because we don't 

want somebody . . . coming in here and saying that we 

beat you. Okay. You know what I mean? That we 

did . . . any misconduct. You know what I'm saying? 

You know how in the movies where they take the phone 

book out and beat people? Okay. . . . You've seen

the movies[,] right[?] 

LOUGH: Are you worried we would play that for him? 

MOORE: Hmmm. 

LOUGH: No. We don't do that. Okay. 

SALAZAR: Okay. That recorder's there mainly for my

protection and my partner's protection. Now if you

want it turned off because you asked for it, I will

turn it off. But I just wanted to explain to you why 

it's on. 

MOORE: Hmm. 

SALAZAR: Okay. It's completely up to you. But that 

is why it's there. Okay. 

¶33 Despite Detective Salazar's invitation to turn off the 

recorder at Moore's request, Moore did not make that request. 

The detectives did not turn off the recorder, and the 

interrogation continued. 

¶34 Moore then told the detectives that Raynard was

involved, not Jevonte. Moore said he had gotten the name 

"Jevonte" from the detectives he spoke to earlier. Moore said 

that Ronald threatened to kill him if he told police that 

Raynard was involved. 

¶35 Moore said that Raynard had the gun, and Moore 

conceded that he had held it on October 8 and 9. Moore also 

admitted he was in the backyard of the house where Parish was 

purchasing drugs, but maintained that he left the backyard when 
No. 2013AP127-CR 

12 

Raynard called Parish back to the window. Moore then changed 

his story again and admitted that he had called Parish back to 

the window. Moore explained that Parish had come back to the 

window, then Parish ran and Raynard shot him. Moore continued 

to deny that he shot Parish or had the gun. 

¶36 Detectives took a break and stopped the recording at 

10:07 p.m. The interrogation and recording resumed at 10:20 

p.m. 

¶37 After the break, the detectives asked Moore to explain 

again how the events unfolded. Moore again provided a detailed 

account. He stated that he had lured Parish back to the window 

where Parish had just purchased drugs, but maintained that he 

had not fired the gun. 

¶38 Then Moore mentioned the recorder again: 

MOORE: What ah do you want ah like talk on there? 

SALAZAR: You want me to turn that off? 

MOORE: Yeah. 

SALAZAR: Just tell me why you want me to turn this 

off? 

MOORE: Cause I don't feel safe [INAUDIBLE] that. 

SALAZAR: Okay. So you're asking me to turn it off. 

And you realize that we want to keep it on. Right? 

Yes, no? I need you to answer yes or no. How's that? 

MOORE: Yes. 

SALAZAR: Okay. 

LOUGH: Who are you afraid of . . . ? Us? 

MOORE: Uh huh. 
No. 2013AP127-CR 

13 

LOUGH: Who then? 

MOORE: Raynard. 

LOUGH: Raynard? Okay. 

SALAZAR: So you realize that we're not asking to turn 

it off? Okay. And we're not encouraging you to turn 

it off? Is that right? 

MOORE: Mmm. 

SALAZAR: Yes or no? 

MOORE: Yes. 

SALAZAR: Okay. The only reason you want us to turn

it off is because it's your own choice? Is that 

right? Yes or no. 

MOORE: Yes. 

SALAZAR: Okay. Any other things you need to put on

this before I turn it off? 

LOUGH: No. We're gonna turn it off at 10:42 PM. 

SALAZAR: And that's at his request. Is that true? 

MOORE: Yes. 

¶39 At this time, the detectives turned off the recorder. 

C. 11:20 p.m. 

¶40 At 11:20 p.m., the recording resumed. Detective 

Salazar began the recording by saying——outside the interrogation 

room——that Moore had just "admitted he was the shooter and that 

he didn't want Raynard to get in trouble for what he did and 

that he explained why he shot and how it made him feel and 

everything . . . ." Detective Salazar then concealed the 

recorder in an envelope and took it into the interrogation room. 
No. 2013AP127-CR 

14 

¶41 On the recording, Moore indicated he was scared

earlier and lied about not shooting Parish. Moore explained 

that he shot Parish because "he moved too quick and stuff." 

Moore told the detectives he "didn't shoot to kill, [he] tried 

to hit him," and that he turned his head away when he shot. 

¶42 Moore said that he and Raynard ran away from Parish 

after the shooting and met at 24th Street. At 24th Street, the 

two separated, Moore went to Ronald's girlfriend's house, and he 

told Ronald about what happened. Moore said he returned the gun 

to Raynard later on October 8. 

¶43 The detectives asked Moore if he was telling the 

truth, and Moore replied that he was. The recording ended at 

11:44 p.m.15

D. Proceedings In Court 

¶44 On October 13, 2008, Moore was charged with firstdegree reckless homicide, contrary to Wis. Stat. § 940.02(1). 

On October 15, Moore's initial appearance was held before 

Circuit Court Commissioner Kevin Costello, who set cash bail at 

$100,000. On December 1, a preliminary hearing was held in 

criminal court before Circuit Court Judge Glenn H. Yamahiro. 

 

15 At no time during the interrogation did Moore request to 

speak to either of his parents. 
No. 2013AP127-CR 

15 

Judge Yamahiro found probable cause for the charge and bound the 

case over for trial.16

¶45 On December 10, 2010, a suppression hearing was held 

before Judge Jeffery Conen based on Jerrell C.J., 283 

Wis. 2d 145, and Wis. Stat. § 938.195. Detective Salazar 

testified about Moore's request to turn off the recording device 

during part of his interrogation because of Moore's fear of 

retaliation. Detective Salazar explained that while the 

recorder was turned off, Moore told him that he shot Parish. 

After Moore's confession, they took a break, then covertly 

brought the recorder back into the interrogation room. 

¶46 On cross–examination, Detective Salazar indicated he 

was alone with Moore when he confessed. After this confession, 

Detective Salazar spoke with his supervisor about the 

possibility of a covert recording, as the Department had not 

previously encountered such a situation. Detective Salazar 

stated his rationale for making the covert recording: "I didn't 

want to be accused of all kinds of nonsense, to be honest with 

you." 

¶47 On January 24, 2011, Judge Conen found that the

request to turn off the recorder came from the defendant, and 

"it came from the defendant twice." "[A] reasonable person 

could view the actions and statements of Mr. Moore as a request 

 

16 Between the December 1, 2008, preliminary hearing and the 

December 10, 2010, suppression hearing, there were multiple 

proceedings including an unsuccessful challenge to Moore's 

competency and an unsuccessful reverse waiver hearing. 
No. 2013AP127-CR 

16 

to turn off the recording device before he wanted to go further 

with some discussion about certain aspects of the case." 

¶48 Judge Conen ruled that Moore's first request to turn 

off the recorder was not a refusal because Moore continued to 

talk. He reasoned, however, that because Moore was making the 

request a second time, the detectives may have thought Moore 

would not answer their questions with the recorder on. 

Therefore, the court determined there was a proper refusal and 

denied Moore's suppression motion. 

¶49 On December 6, 2011, a plea hearing was held before 

Circuit Judge David Borowski after the State filed an amended 

information reducing the charge from first-degree reckless 

homicide to second-degree reckless homicide as party to a crime. 

Moore's plea agreement with the State was that there would be no 

presentence investigation, the victim's family would be allowed 

to speak at sentencing, the State would anticipate recommending 

a maximum prison term and restitution, the defendant would 

submit to the court's criminal jurisdiction, and the defendant 

would not seek alterations based on his juvenile status. Moore 

pled guilty to the amended charge. Judge Borowski accepted the 

plea, finding that it was freely, knowingly, intelligently, and 

voluntarily given. 

¶50 On February 17, 2012, Judge Borowski sentenced Moore 

to 11 years of initial confinement and nine years of extended 

supervision. The court also required Moore to pay restitution 

in the amount of $2,583.00. Moore was credited with 1,226 days 

of presentence incarceration. 
No. 2013AP127-CR 

17 

¶51 Moore appealed his conviction on grounds that his 

incriminating statements to police should have been suppressed. 

The court of appeals affirmed the circuit court, concluding that 

Moore refused to cooperate based on his two requests to turn off 

the recording device. State v. Moore, 2014 WI App 19, ¶¶46–48, 

352 Wis. 2d 675, 846 N.W.2d 18. The court also concluded that 

Moore's statements were voluntary based on his previous 

encounters with police, his ability to concoct the fake Jevonte 

story, and his ability to comprehend "party to a crime" 

liability. Id., ¶32. 

II. STANDARD OF REVIEW 

¶52 We must determine the voluntariness of Moore's 

statements to police. Whether Moore's statements were voluntary 

is a question of constitutional fact. Our review of questions 

of constitutional fact follows a two-step analysis. State v. 

Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228, 647 N.W.2d 142 

(citing State v. Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 

629 N.W.2d 613). First, we accept the circuit court's findings 

of fact unless they are clearly erroneous. Id. Second, we 

independently apply constitutional principles to those facts. 

Id. 

¶53 This case also requires us to interpret Wisconsin 

statutes relating to recording the interrogation of juveniles. 

We interpret statutes de novo, without deference to the circuit 

court and court of appeals. State v. Lindsey A.F., 2003 WI 63, 

¶8, 262 Wis. 2d 200, 663 N.W.2d 757 (citing State v. Setagord, 

211 Wis. 2d 397, 405–406, 565 N.W.2d 506 (1997)). 
No. 2013AP127-CR 

18 

¶54 Finally, this case requires us to determine whether 

the error, if any, in the circuit court's decision not to 

suppress Moore's statements, was harmless. Whether an error is 

harmless is a question of law that this court reviews de novo. 

Weborg v. Jenny, 2012 WI 67, ¶43, 341 Wis. 2d 668, 816 

N.W.2d 191. 

III. ANALYSIS 

A. Voluntariness of Confession 

¶55 A defendant's confession must be voluntary; the

State's use of an involuntary confession for purposes of 

prosecution violates the defendant's due process rights. See

Jerrell C.J., 283 Wis. 2d 145, ¶17; Rogers v. Richmond, 365 U.S. 

534, 540 (1961). A defendant's confession is voluntary if it is 

"the product of a free and unconstrained will, reflecting 

deliberateness of choice, as opposed to the result of a 

conspicuously unequal confrontation in which the pressures 

brought to bear on the defendant by representatives of the State 

exceeded the defendant's ability to resist." State v. Lemoine, 

2013 WI 5, ¶17, 345 Wis. 2d 171, 827 N.W.2d 589 (citing State v. 

Hoppe, 2003 WI 43, ¶36, 261 Wis. 2d 294, 661 N.W.2d 407). The 

government bears the burden of establishing——by a preponderance 

of the evidence——that a confession was voluntary. State v. 

Agnello, 226 Wis. 2d 164, 179–80, 593 N.W.2d 427 (1999) (citing 

Lego v. Twomey, 404 U.S. 477, 489 (1972)). 

¶56 Voluntariness is evaluated in light of all the 

circumstances surrounding interrogation and decided under a 

totality of the circumstances, weighing the suspect's personal 
No. 2013AP127-CR 

19 

characteristics17 against the actions of the police. Lemoine, 

345 Wis. 2d 171, ¶18 (citing Hoppe, 261 Wis. 2d 294, ¶38). 

"[I]n order to justify a finding of involuntariness, there must 

be some affirmative evidence of improper police practices 

deliberately used to procure a confession." State v. Clappes, 

136 Wis. 2d 222, 239, 401 N.W.2d 759 (1987). In other words, a 

suspect's personal characteristics alone cannot form the basis 

for finding that the suspect's confessions, admissions, or 

statements are involuntary. 

¶57 We review police conduct for, among other things, "the 

length of questioning, general conditions or circumstances in 

which the statement was taken, whether any excessive physical or 

psychological pressure was used, and whether any inducements, 

threats, methods, or strategies were utilized in order to elicit 

a statement from the defendant." State v. Ward, 2009 WI 60, 

¶20, 318 Wis. 2d 301, 767 N.W.2d 236 (quoting State v. Davis, 

2008 WI 71, ¶37, 310 Wis. 2d 583, 751 N.W.2d 332). The age of 

the suspect may affect how we view police tactics; "the younger 

the child the more carefully we will scrutinize police 

questioning tactics to determine if excessive coercion or 

intimidation or simple immaturity that would not affect an adult 

has tainted the juvenile's confession." Jerrell C.J., 283 

 

17 "The relevant personal characteristics of the defendant 

include the defendant's age, education and intelligence, 

physical and emotional condition, and prior experience with law 

enforcement." State v. Hoppe, 2003 WI 43, ¶39, 261 Wis. 2d 294, 

661 N.W.2d 407 (citations omitted). 
No. 2013AP127-CR 

20 

Wis. 2d 145, ¶26 (quoting Hardaway v. Young, 302 F.3d 757, 765 

(7th Cir. 2002)). When a suspect is a juvenile, "special 

caution" must be taken with the methods of interrogation used 

when "a parent, lawyer, or other friendly adult" is not present. 

Id., ¶21 (quoting Hardaway, 302 F.3d at 762). 

¶58 We begin, as the court of appeals did, with Moore's 

personal characteristics. At the time of questioning, Moore was 

15 years old. He attended eighth grade at Travis Academy in 

Milwaukee. He indicated to police that he did not have any 

mental problems, had never attempted suicide, and coped with 

whatever learning problems he had. When asked whether he was 

sick or under the influence of drugs or alcohol, Moore stated 

that he was not. 

¶59 Moore's answers in early questioning also indicated 

that he had a significant amount of prior police interaction. 

Moore told police that he had been arrested previously for 

possession of marijuana, forgery, and possession of a dangerous 

weapon. Moore said he was on probation for the dangerous weapon 

charge and provided police with the name of his probation agent. 

¶60 Although Moore was only 15 years old at the time of 

his questioning, he had more experience with police and law 

enforcement than most people his age. Moore demonstrated that 

he was able not only to develop a story about his noninvolvement in the shooting but also to adapt the details of 

that story to information——either true or untrue——possessed by 

the police. For example, when detectives suggested that 

"Jevonte's" age did not make sense, Moore changed it from 
No. 2013AP127-CR 

21 

between 15 and 16 to between 18 and 19. When they asked why 

nobody in the neighborhood knew "Jevonte," Moore said that those 

people either did not know him or were lying. When detectives 

told Moore that he would not have been able to see the flash of 

the gun from where he claimed to be standing, he changed his 

supposed position at the crime scene. 

¶61 In sum, Moore's ability to concoct and modify a story 

"on the fly" suggests a level of sophistication and adaptability 

perhaps not accounted for by a standard IQ test.18 Thus, his 

below-average intellect "does not justify a conclusion that 

[his] mental condition, by itself and apart from its relation to 

official coercion, should . . . dispose of the inquiry into 

constitutional 'voluntariness.'" Colorado v. Connelly, 479 U.S. 

157, 164 (1986). Rather, it must be taken into consideration 

and weighed against the conduct of police. 

¶62 The tactics used by the detectives interrogating Moore 

do not suggest that his confession was involuntary. Although 

Moore was with police for nearly 11 hours after his arrest, his 

interrogation took place over shorter periods of time with 

breaks for food, trips to the restroom and the crime scene, and 

a shift change. Moore's actual questioning lasted about five 

and a half hours. 

 

18 "IQ test scores are approximations of conceptual 

functioning, but may be insufficient to assess reasoning in 

real-life situations and mastery of practical tasks." American 

Psychiatric Association, Diagnostic and Statistical Manual of 

Mental Disorders (DSM-V) 37 (5th ed. 2013). 
No. 2013AP127-CR 

22 

¶63 Additionally, Moore was read his Miranda rights at 

least twice. Early on, Moore indicated to the detectives that 

he was aware of his Miranda rights and had read them two or 

three times in the past. Nevertheless, the detectives informed 

Moore of each of his rights separately and waited for Moore to 

verify that he understood. Moore also was furnished with a 

written copy of his rights as the warnings were read to him. 

Moore explained his right to end questioning to detectives. 

¶64 It is true that the detectives used tactics such as 

minimizing, suggesting that Parish's death may have been an 

accident, and telling Moore that other witnesses were saying he 

shot Parish, to elicit a confession from him. Although these 

tactics may have influenced Moore, they are tactics that courts 

commonly accept. E.g. State v. Triggs, 2003 WI App 91, ¶¶15–17, 

264 Wis. 2d 861, 663 N.W.2d 396 (citation omitted). See also 2 

Wayne R. LaFave et al., Criminal Procedure § 6.2(c), at 629-36 

(3d ed. 2007). 

¶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." Lemoine, 345 Wis. 2d 171, 

¶17. 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 
No. 2013AP127-CR 

23 

shot Parish, Moore's decision to do so was a voluntary 

decision.19

B. Interpretation of Recording Statutes 

¶66 We now turn to the issue of whether, under the 

relevant Wisconsin statutes, Moore's questioning should have 

been recorded in its entirety. We look to Wis. Stat. § 938.195 

to determine whether, and to what extent, the statutory 

protections that require the recording of juveniles apply here. 

¶67 This court held in Jerrell C.J. that a juvenile's 

custodial interrogation must be recorded. Jerrell C.J., 283 

Wis. 2d 145, ¶¶57–58. The court said: "All custodial 

interrogation of juveniles in future cases shall be

 

19 Although the parties discussed at some length the absence 

of Moore's father during the interrogation, the record contains 

no express allegation that there was a violation of Wis. Stat. 

§ 938.19(2) ("Notification of Parent, Guardian, [or] Legal 

Custodian") in this case. In fact, the record supports at least 

a circumstantial determination that police did contact Moore's 

father. Short of a violation of Wis. Stat. § 938.19(2) or some 

evidence that police purposefully cut Moore off from his parent 

or another "friendly adult" in order to secure a confession, we 

hesitate to say that Moore's father's absence can be considered 

an "improper police practice" to be weighed against his personal 

characteristics. Thus, although we take Moore's father's 

absence into account as a part of the totality of the 

circumstances surrounding Moore's confession, his absence does 

not change the outcome. 

The Center on Wrongful Convictions of Youth and the

Wisconsin Innocence Project, as amicus, ask us to adopt a per se 

rule excluding statements made by juveniles when they are denied 

the opportunity to consult with a parent or other friendly 

adult. In Jerrell C.J., we were asked to adopt a similar rule. 

We declined to do so in Jerrell C.J., 283 Wis. 2d 145, ¶59, and 

we decline to do so here. 
No. 2013AP127-CR 

24 

electronically recorded where feasible, and without exception 

when questioning occurs at a place of detention." Id., ¶58. 

¶68 The legislature appeared to codify this holding as 

part of 2005 Wis. Act 60, which was approved subsequent to the 

Jerrell C.J. decision. The Act created Wis. Stat. § 938.195, 

which reads, in part, as follows: 

 (2) WHEN REQUIRED. (a) A law enforcement agency 

shall make an audio or audio and visual recording of 

any custodial interrogation of a juvenile that is 

conducted at a place of detention unless a condition 

under s. 938.31(3)(c)1. to 5. applies. 

 (b) If feasible, a law enforcement agency 

shall make an audio or audio and visual recording of 

any custodial interrogation of a juvenile that is 

conducted at a place other than a place of detention 

unless a condition under s. 938.31(3)(c)1. to 5. 

applies. 

 3. NOTICE NOT REQUIRED. A law enforcement 

officer or agent of a law enforcement agency 

conducting a custodial interrogation is not required 

to inform the subject of the interrogation that the

officer or agent is making an audio or audio and 

visual recording of the interrogation. 

¶69 Act 60 also amended Wis. Stat. § 938.31, creating 

subsection (3) to implement the above-stated directive. 

Subsection (3) reads in part: 

 (b) Except as provided under par. (c), a 

statement made by the juvenile during a custodial 

interrogation is not admissible in evidence against

the juvenile in any court proceeding alleging the 

juvenile to be delinquent unless an audio or audio and 

visual recording of the interrogation was made as 

required under s. 938.195(2) and is available. 

 (c) A juvenile's statement is not 

inadmissible in evidence under par. (b) if any of the 
No. 2013AP127-CR 

25 

following applies or if other good cause exists for

not suppressing a juvenile's statement under par. (b): 

 1. The juvenile refused to respond or 

cooperate in the custodial interrogation if an audio 

or audio and visual recording was made of the 

interrogation so long as a law enforcement officer or 

agent of a law enforcement agency made a 

contemporaneous audio or audio and visual recording or 

written record of the juvenile's refusal. 

Wis. Stat. § 938.31(3)(b)-(c) (emphasis added). 

 ¶70 Act 60 also created Wis. Stat. § 968.073 in the 

chapter entitled "Commencement of Criminal Proceedings." 

Section 968.073 deals with "Recording custodial interrogations." 

This section somewhat parallels Wis. Stat. § 938.195(2), but it 

is not nearly as comprehensive. Section 968.073(2) reads: 

 (2) It is the policy of this state to make an 

audio or audio and visual recording of a custodial 

interrogation of a person suspected of committing a

felony unless a condition under s. 972.115(2)(a)1. to 

6. applies or good cause is shown for not making an

audio or audio and visual recording of the 

interrogation. 

¶71 Wisconsin Stat. § 972.115(2)(a)1. reads: 

 1. The person refused to respond or cooperate 

in the interrogation if an audio or audio and visual 

recording was made of the interrogation so long as a 

law enforcement officer or agent of a law enforcement 

agency made a contemporaneous audio or audio and 

visual recording or written record of the subject's

refusal. 

¶72 Notably, Wis. Stat. § 972.115(2)(a) provides a remedy 

for a recording violation that is different from the remedy in 

Wis. Stat. § 938.31(3)(b). It provides: 

If a statement made by a defendant during a custodial 

interrogation is admitted into evidence in a trial for 

a felony before a jury and if an audio or audio and
No. 2013AP127-CR 

26 

visual recording of the interrogation is not 

available, upon a request made by the defendant as 

provided in s. 972.10 (5) and unless the state asserts 

and the court finds that one of the following 

conditions applies or that good cause exists for not 

providing an instruction, the court shall instruct the 

jury that it is the policy of this state to make an

audio or audio and visual recording of a custodial 

interrogation of a person suspected of committing a

felony and that the jury may consider the absence of 

an audio or audio and visual recording of the 

interrogation in evaluating the evidence relating to 

the interrogation . . . . 

Wis. Stat. § 972.115(2)(a). 

¶73 These several statutes present two questions in

relation to this case: 

 1. Did Moore refuse to respond or cooperate with 

detectives in his custodial interrogation if the detectives did 

not discontinue the audio recording of the interrogation? 

Moore's refusal would justify the officers turning off the 

recorder. 

 2. If Moore did not refuse to respond or cooperate

in his custodial interrogation, were the statements he provided 

to police during the time he was not being recorded inadmissible 

against him in a criminal proceeding? 

¶74 These questions present issues of statutory 

interpretation. 

¶75 Interpreting a statute requires us to "faithfully give 

effect to the laws enacted by the legislature . . . ." State ex 

rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44, 271 

Wis. 2d 633, 681 N.W.2d 110. Words and phrases in the statute 

are given their "common, ordinary, and accepted meaning" unless 
No. 2013AP127-CR 

27 

they are technical or defined in the statute. Id., ¶45. We 

also consider "the scope, history, context and purpose of the 

statute" as a part of this plain–meaning analysis. Id., ¶48 

(quoting State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶18, 236 

Wis. 2d 473, 613 N.W.2d 591). 

¶76 Normally, if our analysis finds a plain meaning in the 

language of the statute, the inquiry ends there. Id., ¶46. 

Normally, we are "not at liberty to disregard the plain, clear 

words of the statute." Id. (quoting State v. Pratt, 36 

Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). If, on the other hand, 

the statute is ambiguous we may examine extrinsic sources, such 

as legislative history. Id., ¶¶47, 50. 

¶77 In this case, the statute is not ambiguous. Thus, 

interpretation of the phrase "refused to respond or cooperate" 

represents an ordinary case of statutory interpretation. With 

respect to the remedy for a violation of the statute, however, 

we are presented with a dilemma. A literal reading of the 

statute 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. 

¶78 We address first the question of whether Moore refused 

to respond or cooperate. 

¶79 Neither Wis. Stat. § 938.31 nor Wis. Stat. § 938.195 

defines "refused." We therefore consider the commonly accepted 

definition of the word. "Refuse" may be defined as "to express 

oneself as unwilling to accept . . . [or] to show or express 
No. 2013AP127-CR 

28 

unwillingness to do or comply with something . . . ." Webster's 

New Collegiate Dictionary 972 (5th ed. 1977). A "refusal" is 

"The denial or rejection of something offered or demanded." 

Black's Law Dictionary 1285 (7th ed. 1999). 

¶80 A suspect who "refuse[s] to respond or cooperate" must 

do more than request or express a preference that a recording 

device be turned off. Rather, 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. 

¶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." We must note 

that Detective Salazar previously offered to turn off the 

recorder if Moore asked for him to do so. 

¶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 
No. 2013AP127-CR 

29 

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. 

¶83 After Moore's original request to turn the recording 

device off, he continued making statements and answering 

questions. His second request was similar to the first. Moore 

never told the detectives he would end the interrogation or stop 

answering questions if the recorder was left on. Detectives 

Salazar and Lough may have felt that they were getting 

incomplete or dishonest answers from Moore due to the recorder's 

presence, but that suspicion, coupled with Moore's request, was 

not enough to determine that Moore "refused to respond or 

cooperate."20

¶84 A majority of the court concludes that Moore did not 

refuse to respond or cooperate unless the recorder was turned 

 

20 Although this may seem at first to be an additional 

hurdle for law enforcement to clear in its pursuit of criminal 

suspects, we note that despite initial resistance to mandatory 

recording laws nationwide, an overwhelming majority of police 

departments prefer to record interrogations. See William A. 

Geller, Videotaping Interrogations and Confessions, in Nat'l 

Inst. of Justice, U.S. Dept. of Justice, Research in Brief 1, 10 

(Mar. 1993). 
No. 2013AP127-CR 

30 

off. We recognize and appreciate the view that Moore should not 

benefit from being granted his stated wish, as long as his 

subsequent confession was voluntary. 

2. Remedy for Violation of Recording Statues 

¶85 Having determined that the failure to record parts of 

Moore's interrogation violated Wis. Stat. § 938.195, we now turn 

to the question of remedy. Once again, Wis. Stat. 

§ 938.31(3)(b) provides that "a statement made by [a] juvenile 

during a custodial interrogation is not admissible in evidence 

against the juvenile in any court proceeding alleging the 

juvenile to be delinquent unless an audio or audio and visual 

recording of the interrogation was made as required . . . and is 

available."21

¶86 The problem is that subsection (3)(b) speaks of "any 

court proceeding alleging the juvenile to be delinquent" and 

that this subsection is part of a section on the "fact-finding 

hearing"——e.g., the trial——in juvenile delinquency cases. 

¶87 Wisconsin Stat. § 972.115(2)(a) provides a different 

remedy in felony criminal cases, namely, a jury instruction 

that it is the policy of this state to make an audio 

or audio and visual recording of a custodial 

interrogation of a person suspected of committing a

 

21 Wisconsin Stat. § 938.02(3m) defines "delinquent" as "a 

juvenile who is 10 years of age or older who has violated any 

state or federal criminal law, except as provided 

in . . . [§] 938.183 . . . ." Section 938.183, in turn, gives 

adult courts original jurisdiction over certain offenses alleged 

to have been committed by juveniles, including second degree 

reckless homicide. See Wis. Stat. § 938.183. 
No. 2013AP127-CR 

31 

felony and that the jury may consider the absence of 

an audio or audio and visual recording of the 

interrogation in evaluating the evidence relating to 

the investigation. 

Wis. Stat. § 972.115(2)(a). 

¶88 One way of reading these statutes reveals troubling 

incongruities in the statutory scheme. For example, if a 

juvenile's unrecorded statement would be excluded in juvenile 

delinquency proceedings but is admissible in adult court, the 

state will often have the power to overcome the consequences of 

an improper failure to record custodial interrogation by 

charging the juvenile with a specific felony or by seeking to 

waive the juvenile into adult court. 

¶89 Permitting the use of unrecorded juvenile statements 

in major felony cases is plainly inconsistent with the court's 

decision in Jerrell C.J. However, determining whether such a 

result is what the legislature authorized and intended 

implicates the legislature's authority to supersede this court's 

exercise of superintending authority. 

¶90 Resolving the question of remedy here would yield no 

satisfactory answer. Fortunately, that is not necessary on the 

facts of this case. 

¶91 This court is highly mindful of the separation of 

powers. It does not engage in direct confrontation with another 

branch of government unless the confrontation is necessary and 

unavoidable. Here the potential confrontation is avoidable. No 

four members of this court agree on the proper remedy for a 

violation of Wis. Stat. § 938.195 in the criminal prosecution of 
No. 2013AP127-CR 

32 

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. 

C. Harmless Error 

¶92 Assuming, arguendo, that Moore's unrecorded statements 

should have been suppressed by the court, we turn to whether any 

error was harmless. Wisconsin's statutory harmless error test 

is laid out at Wis. Stat. § 805.18. It states: 

The court shall, in every stage of an action, 

disregard any error or defect in the pleadings or 

proceedings which shall not affect the substantial 

rights of the adverse party. . . . No judgment shall 

be reversed or set aside or new trial granted in any 

action or proceeding on the ground of . . . the 

improper admission of evidence . . . unless in the 

opinion of the court to which the application is made, 

after an examination of the entire action or 

proceeding, it shall appear that the error complained 

of has affected the substantial rights of the party

seeking to reverse or set aside the judgment, or to

secure a new trial. 

¶93 Although a part of Wisconsin's codified civil 

procedure, Wis. Stat. § 805.18 applies to criminal proceedings 

as well. State v. Armstrong, 223 Wis. 2d 331, 368 n.36, 588 

N.W.2d 606 (1999). We have previously adopted the test in 

Strickland v. Washington, 466 U.S. 668 (1984), as the test for 

harmless error analysis. See Armstrong, 223 Wis. 2d at 368-69; 

see also State v. Dyess, 124 Wis. 2d 525, 544–45, 370 N.W.2d 222 

(1985). 

¶94 The harmless error inquiry asks whether "the error 

complained of has affected the substantial rights of the party 

seeking to reverse or set aside the judgment, or to secure a new 

trial." Wis. Stat. § 805.18. Stated differently, the question 
No. 2013AP127-CR 

33 

is "whether it was 'beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.'" 

State v. Magett, 2014 WI 67, ¶29, 355 Wis. 2d 617, 850 N.W.2d 42 

(quoting State v. Mayo, 2007 WI 78, ¶47, 301 Wis. 2d 642, 734 

N.W.2d 115). Cf. State v. Harvey, 2002 WI 93, 291 Wis. 2d 673, 

717 N.W.2d 74. 

¶95 Under this framework, plea withdrawal is not warranted 

in this case. Moore pled guilty to second-degree reckless 

homicide as a party to the crime. Even if the statements Moore 

made while the recorder was turned off had been suppressed, it 

is clear beyond a reasonable doubt that he would have pled 

guilty to the reduced charge. 

¶96 "[T]he second-degree reckless homicide statute 

requires 'both the creation of an objectively unreasonable and 

substantial risk of human death or great bodily harm and the 

actor's subjective awareness of that risk.'" State v. Neumann, 

2013 WI 58, ¶74, 348 Wis. 2d 455, 832 N.W.2d 560 (citation 

omitted); see also Wis. Stat. § 940.06. The party to a crime 

statute imposes criminal liability on "whoever is concerned in 

the commission of a crime," including those who "aid and abet" 

the commission of the crime and those who are "party to a 

conspiracy with another to commit it . . . ." Wis. Stat. 

§ 939.05. 

¶97 Moore's statements made from 2:49 p.m. through 10:52 

p.m., with a brief exception, are all recorded. He does not 

contend that statements made during this period are

inadmissible, as he received the statutory protection and 
No. 2013AP127-CR 

34 

benefit of a recording during most of that time. His statements 

were voluntary. 

¶98 Statements made by Moore prior to 10:52 p.m. include 

the following: 

- He was "part of" the incident as "party to a crime"

- He knew Raynard had a gun 

- He knew Raynard planned to rob someone 

- He was supposed to get a portion of the money obtained in 

the robbery 

- He acted as lookout and would have alerted Raynard if 

police had approached 

- He lured Parish back to the window where Parish had

purchased drugs just before Raynard shot Parish 

- Raynard shot Parish, and they both fled on foot. 

Moore provided detectives with numerous details to support this 

version of events. 

¶99 Furthermore, detectives recorded Moore confessing to 

firing the gun himself after they covertly brought the recording 

device back into the interrogation room. Although this 

confession took place after the recording device had been turned 
No. 2013AP127-CR 

35 

off for a brief period, it was still admissible and had 

virtually the same content as Moore's unrecorded confession.22 

¶100 Moore's situation at the pleading stage was virtually 

the same regardless of any possible error made by the circuit 

court in denying suppression of Moore's unrecorded statements. 

The State still had ample evidence to support the party to a 

crime charge that Moore ultimately pled to.23 Because we are 

persuaded beyond a reasonable doubt that Moore would have pled 

guilty to the same charge, we hold any error discussed herein to 

be harmless. 

IV. CONCLUSION 

¶101 We agree that Moore's incriminating statements were 

voluntary. However, Moore did not "refus[e] to cooperate" with 

police during his interrogation. It was therefore a violation 

 

22 Moore contends that his confession after the recorder was 

turned back on should be inadmissible, relying on State v. 

Dionicia M., 2010 WI App 134, 329 Wis. 2d 524, 791 N.W.2d 236. 

Dionicia M. is distinguishable in a number of ways, primarily 

because it involved a police interrogation of a juvenile suspect 

that was unrecorded from the beginning until the suspect's 

confession. Only after the suspect confessed did police record 

her statements. Where, as here, a recording "bookends" the 

questioning with only a short period of time unrecorded in the 

middle, concerns about police coercion are far less prevalent. 

23 It is plausible that Moore's changing story throughout 

his interrogation is at least part of the reason the State 

amended the charge from first-degree reckless homicide to 

second-degree reckless homicide as a party to a crime. 

Regardless of which version of Moore's story the State relied 

upon, by 5:00 p.m. he had provided the detectives with details 

of his involvement sufficient to find criminal culpability under 

the amended charge. 
No. 2013AP127-CR 

36 

of Wis. Stat. § 938.195 for police to cease recording the 

interrogation. 

¶102 Nevertheless, the error, if any, in not suppressing 

some of Moore's statements, was harmless. Moore admitted to 

participating in the crime prior to the recording being turned 

off, and he repeated his confession that he was the shooter 

after the recording was turned back on. Accordingly, we affirm 

the court of appeals. 

By the Court.—The decision of the court of appeals is 

affirmed. 
No. 2013AP127-CR.akz 

1 

¶103 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I agree 

with the majority opinion that all of Raheem Moore's statements 

to the detectives were knowing, intelligent, and voluntary. I 

join the majority opinion in that respect. I write separately 

because I believe that the majority opinion should take this 

opportunity to conclude that suppression of a juvenile's 

unrecorded statements under Wis. Stat. § 938.31(3)(b) is not an 

available remedy if a juvenile is in adult court. While a 

juvenile's statements during a custodial interrogation generally 

must be recorded, this case was an adult criminal court 

proceeding, not a juvenile court delinquency proceeding. My 

conclusions are based upon a plain meaning statutory analysis. 

¶104 I write separately to clarify that this case has a 

somewhat unique posture. I hope to clarify that we should not 

conflate procedures and remedies available in juvenile court 

with those in adult court. To be clear, had the case been tried 

to a jury in adult court, Moore could have requested a jury 

instruction under Wis. Stat. § 972.115(2)(a), but relief under 

Wis. Stat. § 938.31(3)(b) would not be available. Moore was in 

adult and not juvenile court; hence, suppression of his 

unrecorded statements under § 938.31(3)(b) is not available to 

him because his case was not a "court proceeding alleging the 

juvenile to be delinquent." See Wis. Stat. § 938.31(3)(b). 

Moreover, a jury instruction is of little significance since 

Moore pled guilty in adult court. I write separately because 

the majority opinion stops short of clearly concluding that the 
No. 2013AP127-CR.akz 

2 

only available remedy to Moore would be a § 972.115(2)(a) jury 

instruction and that suppression under § 938.31(3)(b) is not 

available to Moore because he was in adult court. 

¶105 "[W]e have repeatedly held that statutory 

interpretation 'begins with the language of the statute. If the 

meaning of the statute is plain, we ordinarily stop the 

inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cnty., 

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source 

and citations omitted). "Statutory language is given its 

common, ordinary, and accepted meaning, except that technical or 

specially-defined words or phrases are given their technical or 

special definitional meaning." Id. (citation omitted). "Where 

statutory language is unambiguous, there is no need to consult 

extrinsic sources of interpretation, such as legislative 

history." Id., ¶46 (citations omitted). "'In construing or 

interpreting a statute the court is not at liberty to disregard 

the plain, clear words of the statute.'" Id. (quoting State v. 

Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). "We should 

not read into the statute language that the legislature did not 

put in." Brauneis v. LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612 

N.W.2d 635 (citing In the Interest of G. & L.P., 119 

Wis. 2d 349, 354, 349 N.W.2d 743 (1984)). The majority opinion 

correctly recognizes these principles of statutory 

interpretation. Majority op., ¶¶75-76. 

¶106 The majority opinion holds that the failure to record 

the entire custodial interrogation violated the recording 

requirement in Wis. Stat. § 938.195. Majority op., ¶¶84-85. 
No. 2013AP127-CR.akz 

3 

That statute provides: "A law enforcement agency shall make an 

audio or audio and visual recording of any custodial 

interrogation of a juvenile that is conducted at a place of 

detention unless a condition under [§] 938.31(3)(c)1. to 5. 

applies." Wis. Stat. § 938.195(2)(a). I do not quarrel with 

the legislative call to record a juvenile's statements during a 

custodial interrogation. 

¶107 I also do not question that the remedy for a violation 

of the recording requirement is suppression under Wis. Stat. 

§ 938.31. However, the legislature also determined that 

suppression under § 938.31 is available only in a juvenile court 

delinquency proceeding. This statute provides, in relevant 

part: 

Except as provided under par. (c), a statement 

made by the juvenile during a custodial interrogation 

is not admissible in evidence against the juvenile in 

any court proceeding alleging the juvenile to be 

delinquent unless an audio or audio and visual 

recording of the interrogation was made as required

under [§] 938.195(2) and is available. 

Wis. Stat. § 938.31(3)(b) (emphasis added). The majority 

opinion seems to avoid the inevitable conclusion that 

suppression under that statute is unavailable in adult court. 

Majority op., ¶¶86-91. We should adhere to the legislation's 

plain language. 

¶108 Moore is not entitled to suppression under Wis. Stat. 

§ 938.31(3)(b) in adult court. By this statute's plain terms, 

the suppression remedy applies in a "court proceeding alleging 

the juvenile to be delinquent." Wis. Stat. § 938.31(3)(b). A 

criminal prosecution in adult court is not a "court proceeding 
No. 2013AP127-CR.akz 

4 

alleging the juvenile to be delinquent." Therefore, this 

statute's suppression remedy for a juvenile delinquency 

proceeding does not apply in adult court, even if the adult 

court defendant is a juvenile. A court would have to 

impermissibly read language into this statute in order to 

determine that its suppression remedy applies in adult court. 

See Brauneis, 236 Wis. 2d 27, ¶27 (citation omitted) ("We should 

not read into the statute language that the legislature did not 

put in."). 

¶109 I recognize that, had Moore chosen to have a jury 

trial in adult court, he could have requested a jury instruction 

under Wis. Stat. § 972.115 regarding the fact that the entire 

custodial interrogation was not recorded.1 If given, such a jury 

instruction would not, however, find its basis in the juvenile 

code. Wisconsin. Stat. § 972.115 does provide: 

If a statement made by a defendant during a 

custodial interrogation is admitted into evidence in a 

trial for a felony before a jury and if an audio or

audio and visual recording of the interrogation is not 

available, upon a request made by the defendant as 

provided in [§] 972.10(5) and unless the state asserts 

and the court finds that one of the following 

conditions applies or that good cause exists for not 

providing an instruction, the court shall instruct the 

jury that it is the policy of this state to make an

audio or audio and visual recording of a custodial 

interrogation of a person suspected of committing a

felony and that the jury may consider the absence of 

an audio or audio and visual recording of the 

interrogation in evaluating the evidence relating to 

 

1 I do not mean to suggest that a jury instruction is always 

required. 
No. 2013AP127-CR.akz 

5 

the interrogation and the statement in the 

case . . . . 

Wis. Stat. § 972.115(2)(a) (emphases added). This statute, 

unlike Wis. Stat. § 938.31(3)(b), 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. This statute 

plainly provides that Moore's potential remedy for the failure 

to record his entire custodial interrogation would have been to 

request a jury instruction, had his case been tried to a jury in 

adult court. He did not proceed to jury trial. A jury 

instruction is, thus, of little import in the case at issue. 

¶110 Why the majority opinion seems to shy away from 

expressly holding that suppression was not available to Moore is 

unclear to me. Specifically, the majority opinion states that 

if a juvenile's unrecorded statement would be excluded 

in juvenile delinquency proceedings but is admissible 

in adult court, the state will often have the power to 

overcome the consequences of an improper failure to

record custodial interrogation by charging the 

juvenile with a specific felony or by seeking to waive 

the juvenile into adult court. 

Majority op., ¶88. This proposition is too cavalier for me. 

Waiver of a juvenile into adult court is not such an automatic 

result. Moreover, a prosecutor and a court should be highly 

suspect if waiver is being sought to avoid suppression of an 

unrecorded statement. In many instances, the State will not 

have the option of charging a juvenile with a crime that may be 

prosecuted in adult court. See Wis. Stat. § 938.18 (authorizing 

certain juvenile offenses to be waived into adult court if 

certain conditions are met); Wis. Stat. § 938.183(1) (listing 
No. 2013AP127-CR.akz 

6 

juvenile offenses over which adult courts have "exclusive 

original jurisdiction"). "The decision to waive juvenile court 

jurisdiction under Wis. Stat. § 938.18 is committed to the sound 

discretion of the juvenile court." In re Tyler T., 2012 WI 52, 

¶24, 341 Wis. 2d 1, 814 N.W.2d 192 (citations omitted). I do 

not agree that law enforcement would flout the statutory 

recording mandate, thinking either that the prosecutor will 

"cover" for their disregard of the recording requirement by 

prosecuting a juvenile in adult court or that a juvenile court 

would waive a juvenile into adult court to avoid suppression 

under § 938.31(3)(b). In fact, recordings are the suggested 

practice under Wis. Stat. §§ 968.073(2) and 938.195(2) in either 

court. 

¶111 Importantly, law enforcement officers already possess 

sufficient incentive to record an entire custodial interrogation 

of a juvenile because the officers do not know whether the case 

will proceed in adult or juvenile court. In fact, the vast 

majority of juvenile cases proceed in juvenile court, not adult 

court. Most officers would not risk suppression and would 

recognize that unrecorded statements of a juvenile could be 

suppressed under Wis. Stat. § 938.31(3)(b) in a juvenile 

delinquency proceeding. Thus, we need not fear that officers 

will be cavalier with respect to their statutory duty to record 

a custodial interrogation of a juvenile, given the fact that at 

the time of the recording, officers will not have any assurance 

that the case will be tried anywhere but juvenile court. 
No. 2013AP127-CR.akz 

7 

¶112 Also, the majority opinion states that it avoids a 

"direct confrontation with another branch of government" by 

declining to determine whether the suppression remedy under Wis. 

Stat. § 938.31(3)(b) applies in adult court. Majority op., ¶91. 

The majority opinion reflects that "[p]ermitting the use of 

unrecorded juvenile statements in major felony cases is plainly 

inconsistent with the court's decision in [In re Jerrell C.J., 

2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110]." Majority op., 

¶89. In Jerrell C.J., the court held that a written confession 

made by a juvenile during a custodial interrogation was 

inadmissible as evidence in that juvenile court proceeding. 

Jerrell C.J., 283 Wis. 2d 145, ¶¶3, 36. The court went further 

to require recording of a juvenile's statements during a 

custodial interrogation and did so pursuant to its "supervisory 

authority." Id., ¶¶47, 49, 58. Subsequently, the legislature 

created § 938.31(3)(b), presumably to implement the holding from 

Jerrell C.J. Majority op., ¶¶68-69. In the present case, a 

separation-of-powers issue is not before the court, and the 

majority opinion should not decline to resolve whether 

suppression under § 938.31(3)(b) applies in adult court because 

the legislature has spoken. I would not use our supervisory 

authority to now create additional relief, and I believe that 

the legislation's plain language deserves its due. 

¶113 Further, I conclude that the circuit court did not err 

by denying Moore's suppression motion. The majority opinion 

undertakes an analysis as if the circuit court erred in denying 

Moore's suppression motion. Specifically, it states that, 
No. 2013AP127-CR.akz 

8 

"[a]ssuming, arguendo, that Moore's unrecorded statements should 

have been suppressed by the court, we turn to whether any error 

was harmless." Majority op., ¶92. It goes on to hold that "any 

possible error made by the circuit court in denying suppression 

of Moore's unrecorded statements" was harmless. Majority op., 

¶100. Because the circuit court did not err, I would not assume 

for the sake of argument that the circuit court erred. 

¶114 The circuit court denied Moore's suppression motion on 

the grounds that suppression under Wis. Stat. § 938.31(3)(b) was 

unavailable to Moore because he was being tried in adult court. 

The circuit court reasoned that Wis. Stat. ch. 938 "deals with 

juveniles in delinquency proceedings." Wisconsin Stat. ch. 972, 

the circuit court explained, "deals with defendants in adult 

proceedings. Not adult defendants. Defendants." Thus, the 

circuit court held that, "if I find that there was [not a] 

refusal, that [sic] what would happen is the statement would be 

admissible, but there would be a——an instruction that would be 

given explaining the ramifications of that." 

¶115 In sum, the circuit court correctly denied Moore's 

suppression motion on the grounds that, because Moore was tried 

in adult court, suppression under Wis. Stat. § 938.31(3)(b) was 

not available to him. Because the circuit court did not err by 

denying the suppression motion, there is no need to undertake a 

harmless error analysis. 

¶116 For the foregoing reasons, I respectfully concur. 

¶117 I am authorized to state that Chief Justice PATIENCE 

DRAKE ROGGENSACK joins this concurrence. 
No. 2013AP127-CR.ssa 

1 

¶118 SHIRLEY S. ABRAHAMSON, J. (dissenting). When the 

defendant was 15 years old, he was interrogated by the police 

about a murder that had recently taken place. After roughly 11 

hours in custody, the defendant confessed to the crime. The 

defendant now seeks to suppress his confession. 

¶119 The defendant argues that admission of his confession 

would violate the federal and state constitutions because the 

confession was not voluntary.1 The defendant further argues that 

admission of his confession would violate Wis. Stat. § 938.195 

(2007-08),2 which requires that "any custodial interrogation of a 

juvenile that is conducted at a place of detention" be recorded.3

¶120 I conclude that the defendant's confession was not 

voluntary under the federal and state constitutions. Because 

admission of the confession was not harmless error, the 

confession should be suppressed. 

¶121 A confession is voluntary if it is "the product of a 

free and unconstrained will, reflecting deliberateness of 

choice, as opposed to the result of a conspicuously unequal 

confrontation in which the pressures brought to bear on the 

 

1 See State v. Jerrell C.J., 2005 WI 105, ¶17, 283 

Wis. 2d 145, 699 N.W.2d 110 (explaining that if a defendant's 

confession is constitutionally "involuntary," then its admission 

violates the defendant's due process rights under the Fourteenth 

Amendment of the federal constitution and Article I, Section 8 

of the Wisconsin Constitution). See also majority op., ¶55. 

2 All subsequent references to the Wisconsin Statutes are to 

the 2007-08 version unless otherwise indicated. 

3 Because my analysis of the constitutional issue is

dispositive, I would not reach the recording statute issue. 
No. 2013AP127-CR.ssa 

2 

defendant by representatives of the State exceeded the 

defendant's ability to resist."4

¶122 Whether a confession is voluntary and thus 

constitutionally valid depends on the totality of the 

circumstances surrounding the confession.5 In conducting this 

totality-of-the-circumstances review, a court weighs a 

defendant's personal characteristics (including the defendant's 

"age, education and intelligence . . . and prior experience with 

law enforcement") against the interrogation methods employed by 

the State (including "the length of questioning"; the presence 

of a parent, attorney, or other interested adult; and "whether 

the defendant was informed of the right to counsel and right 

against self-incrimination").6

¶123 Courts must exercise "special care" when assessing the 

voluntariness of a juvenile's confession,7 as children are 

"uncommonly susceptible" to suggestive and coercive police 

interrogation techniques.8

 

4 Majority op., ¶¶55, 65 (quoting State v. Lemoine, 2013 WI 

5, ¶17, 345 Wis. 2d 171, 827 N.W.2d 589). See also Jerrell 

C.J., 283 Wis. 2d 145, ¶16. 

5 Majority op., ¶56; Jerrell C.J., 283 Wis. 2d 145, ¶20. 

6 Majority op., ¶56 & n.17. See also Jerrell C.J., 283 

Wis. 2d 145, ¶30; State v. Hoppe, 2003 WI 43, ¶39, 261 

Wis. 2d 294, 661 N.W.2d 407. 

7 In re Gault, 387 U.S. 1, 45 (1967); Haley v. Ohio, 332 

U.S. 596, 599 (1948). 

8 Jerrell C.J., 283 Wis. 2d 145, ¶26. 
No. 2013AP127-CR.ssa 

3 

¶124 In the instant case, I weigh the relevant personal 

characteristics of the defendant against the interrogation 

methods employed by the State as follows: 

• The defendant was 15 years old when he confessed. His 

young age is a factor weighing against the voluntariness 

of the confession. 

• The defendant was in eighth grade at the time of his 

confession. His relatively low education level is a 

factor weighing against the voluntariness of the 

confession. 

• The defendant exhibits borderline intellectual 

functioning.9 The defendant's low intelligence level is 

a factor weighing against the voluntariness of the 

confession. 

• The defendant has a history of learning disabilities. 

The defendant may therefore have struggled to understand 

his Miranda rights and the consequences of waiving them. 

Consequently, this factor weighs against the 

voluntariness of the confession. 

 

9 An evaluation of the defendant performed at the State's 

request determined that the defendant functions in the 

"borderline" range of intelligence, meaning his intelligence 

quotient (IQ) score is between 71 and 84. An evaluation of the 

defendant performed at the defendant's request similarly 

concluded that the defendant's IQ score falls between 69 and 79. 

Intellectual disability, also known as mental retardation, is 

commonly defined as an IQ score of 70 or below. See MedLine 

Plus, U.S. Nat'l Library of Medicine, "Intellectual disability" 

(last updated May 10, 2013), 

http://www.nlm.nih.gov/medlineplus/ency/article/001523.htm. 
No. 2013AP127-CR.ssa 

4 

• The defendant was diagnosed with at least three mental 

health issues: attention deficit/hyperactivity disorder, 

mood disorders, and conduct disorders. In addition, he 

has previously displayed problems with substance abuse. 

The defendant's mental health issues and behavioral

problems are factors weighing against the voluntariness 

of the confession. 

• The defendant had previous experience with law 

enforcement at the time of his confession——namely, two 

prior arrests that both resulted in misdemeanor 

delinquency findings. His experience with law 

enforcement was not extensive and does not weigh in favor 

of voluntariness. 

• The defendant was in custody for about 11 hours before he 

confessed. During that time, the defendant was 

repeatedly interrogated by two sets of detectives for a 

total of nearly six hours.10 The duration of the 

interrogation weighs against the voluntariness of the 

confession. 

• The defendant did not confer with a friendly adult at any 

point during the interrogation. The absence of a parent, 

attorney, or other interested adult at the defendant's 

 

10 "Police complete nearly all interrogations of juveniles 

and adults in less than one or two hours. By contrast, they 

extract the vast majority of false confessions only after 

interrogating suspects for six hours or longer . . . ." Barry 

C. Feld, Police Interrogation of Juveniles: An Empirical Study 

of Policy and Practice, 97 J. Crim. L. & Criminology 219, 308 

(2006). 
No. 2013AP127-CR.ssa 

5 

interrogation weighs against the voluntariness of the 

confession.11

• The defendant did not demonstrate that he understood his 

right to counsel.12 At one point, a detective stated as 

follows: "If you decide to answer questions now without 

a lawyer present, you have the right to stop questioning 

at any time you wish and the right to ask for and to have 

a lawyer at any time you wish, including during 

questioning." The detective then asked, "What does that 

mean in your own words?" The defendant replied by 

stating: "That mean like, if I'm talking to you all, 

then I don't want to say no more, I can just, um, don't 

say nothing." 

 

11 The record does not reveal whether the police actually 

contacted the defendant's parents, although they informed the 

defendant that they had. It is undisputed, however, that the 

defendant had no opportunity to confer with a friendly adult 

during the interrogation. "[T]he failure 'to call the parents 

for the purpose of depriving the juvenile of the opportunity to 

receive advice and counsel' will be considered 'strong evidence 

that coercive tactics were used to elicit the incriminating 

statements.'" Jerrell C.J., 283 Wis. 2d 145, ¶43. 

12 See Miranda v. Arizona, 384 U.S. 436, 444 (1966); Jerrell 

C.J., 283 Wis. 2d 145, ¶20 (stating that courts determining the 

constitutional validity of confessions should consider "whether 

the defendant was informed of the right to counsel and right 

against self-incrimination"). 

A forensic evaluation of the defendant performed at the 

request of the defendant's attorneys concluded that "significant 

questions exist as to [the defendant's] competence to waive his 

Miranda rights" and that "significant concerns exist regarding 

the reliability of [the defendant's] confession." 
No. 2013AP127-CR.ssa 

6 

The defendant explained his right to stop speaking 

but did not demonstrate that he understood he could ask 

for an attorney or have an attorney present at any time 

(including during questioning). This exchange, which 

suggests the defendant did not fully grasp his Miranda 

rights, weighs against the voluntariness of the 

confession. 

• The detectives' conduct in interrogating the defendant 

was not egregious.13 The detectives spoke in a 

conversational tone and were not unduly aggressive in 

their demeanor while they isolated the defendant in the 

interrogation room. However, the detectives employed 

psychological tactics to which juveniles and those with 

low intelligence are especially vulnerable.14 For 

example, the detectives continually challenged the 

defendant's denials of culpability, urged the defendant 

to tell the truth, and misinformed the defendant about 

various aspects of their investigation. The use of these 

psychological techniques in the instant case exceeded the 

defendant's ability to resist and weighs against the 

voluntariness of the confession. 

 

13 "[T]he totality of the circumstances standard does not 

require that egregious or outrageous police conduct be 

present. . . ." Hoppe, 261 Wis. 2d 294, ¶58. 

14 "When used against vulnerable suspects, standard police 

interrogation techniques are especially apt to lead to false 

confessions. Juveniles and the mentally retarded are the most 

vulnerable to modern psychological interrogation techniques." 

Jerrell C.J., 283 Wis. 2d 145, ¶104 (Abrahamson, C.J., 

concurring). 
No. 2013AP127-CR.ssa 

7 

• The cumulative effect of these factors under the totality 

of the circumstances test weighs against the 

voluntariness of the confession. 

¶125 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; was 

subject to psychological interrogation methods; 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. 

¶126 The personal characteristics of the defendant and the 

interrogation methods employed in the present case are 

substantially similar to those in State v. Jerrell C.J., 2005 WI 

105, 283 Wis. 2d 145, 699 N.W.2d 110, and the same result should 

ensue. The confession in Jerrell C.J. was suppressed. 

¶127 Considering the factors outlined above and the court's 

holding in Jerrell C.J., and exercising special care as the case 

law compels me to do, I conclude that the defendant's confession 

was not voluntary and thus is not constitutionally valid. 

Because admission of the confession was not harmless error,15 the 

confession should be suppressed. I would reverse the decision 

of the court of appeals and remand the cause for further 

proceedings. 

 

15 An error is harmless if the beneficiary of the error 

(here the State) proves beyond a reasonable doubt that the error 

complained of did not contribute to the result. State v. Hale, 

2005 WI 7, ¶60, 277 Wis. 2d 593, 691 N.W.2d 637. The State 

cannot meet its burden of proof in the instant case. 
No. 2013AP127-CR.ssa 

8 

¶128 For the reasons set forth, I dissent. 

¶129 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this opinion. 
No. 2013AP127-CR.ssa 

1