2015 WI 54



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP127-CR C OMPLETE T ITLE : 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

O PINION F ILED : June 16, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : September 23, 2014

S OURCE OF A PPEAL : C OURT : Circuit C OUNTY : Milwaukee J UDGE : David Borowski

J USTICES : C ONCURRED : ZIEGLER, J., ROGGENSACK C.J., concur. (Opinion

Filed.) D ISSENTED : ABRAHAMSON, BRADLEY, JJ. Dissent. (Opinion

Filed.) N OT P ARTICIPATING :

A TTORNEYS : 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 Cen ter 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 pub lished 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, 8 46 N.W.2d 18.

2 Contrary to Wis. Stat. §§ 940.06(1) and 939.05. A ll 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 q uestioning. 3 ¶2 This case presents issues related to our decisio n in State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145 , 699 N.W.2d 110, and the Wisconsin Legislature's subsequ ent enactment of Wis. Stat. § 938.195, which requires that custod ial interrogation of juveniles be recorded except under limited circumstances. Moore contends that his confession to police was involuntary. Alternatively, he contends that the i ncriminating statements he made that were not recorded during hi s custodial interrogation as a juvenile were inadmissible becau se he did not "refus[e] to respond or cooperate" with detectives as required by an exception to the recording statute. Accordin gly, he requests that he be allowed to withdraw his plea. ¶3 Moore, then 15 years old, was arrested on Octobe r 10, 2008, after being implicated in a Milwaukee homicid e. Police detectives questioned Moore for approximately five and a half hours over a period of nine hours from 2:49 p.m. un til 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 i n the

3 Judge David L. Borowski presided over the plea hea ring and entered judgment. Judge Jeffrey A. Conen presided over the motion to suppress hearing.No. 2013AP127-CR

3 homicide. Thereafter, the detectives covertly reco rded Moore reaffirming his confession. ¶5 Moore was initially charged with first-degree re ckless homicide. The circuit court held a Miranda 4 /Goodchild 5 hearing to review the voluntariness of Moore's statements m ade while the recording device was turned off as well as the volu ntariness 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 t he recording device be turned off. Thus, Moore's statements wer e not suppressed. Following this ruling, the State amend ed the charge to second-degree reckless homicide as party to a cr ime. Moore pled guilty to the amended charge and was sentenced to 11 years of initial confinement and nine years of extended s upervision. ¶6 Moore appealed the circuit court's decision on t he admissibility of his statements. The court of appe als ruled Moore's statements were voluntary. It also conclud ed that Moore refused to cooperate with the detectives, which per mitted them to turn off the recording device. ¶7 Moore successfully petitioned this court for rev iew.

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

4 ¶8 We agree with the circuit court that Moore's statements were voluntary. However, we conclude th at 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 interro gation. ¶9 Nevertheless, the error, if any, in not suppress ing some of Moore's statements, was harmless. Moore ad mitted to participating in the crime prior to the recording d evice being turned off, and he repeated his unrecorded confessi on 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 pronoun ced dead at the scene. An autopsy revealed that Parish was sho t 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 res idence 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 Moor e shot the victim when he became uncooperative.No. 2013AP127-CR

5 ¶12 Moore was arrested shortly after 12:00 p.m. tha t day and was questioned by two pairs of police detective s. The first pair, Scott Gastrow and Charles Mueller, began thei r 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 except ion 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 question ing of Moore, they asked him basic questions about where he lived , his family, and his personal background, including his age, cri minal history, 7 and education. 8 Detective Gastrow also asked Moore whether he had any mental or learning problems. Mo ore answered

7 Moore told the Detectives that he had been arreste d previously for possession of marijuana, possession of a dangerous weapon, and forgery.

8 During this early questioning, the detectives aske d Moore for his father's phone number and address, which Mo ore supplied. They also asked Moore about his mother. Moore indi cated his mother was at Community Corrections for a drug addi ction problem. Detectives also asked Moore whom they sho uld contact in case of an emergency. Moore listed his father a nd aunt.No. 2013AP127-CR

6 that he did not have mental problems and that he co ped 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 understo od each right. During this colloquy, Detective Gastrow als o asked Moore to explain the right to end questioning without a l awyer. 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 noth ing." 10 ¶15 After the detectives read Moore his Miranda rig hts, he agreed to talk to them. The detectives asked Moore about what happened on October 8. ¶16 Initially, Moore told the detectives that he wa s not involved in the shooting. He told them that he had been on Ronald's girlfriend's porch at the time of the shoo ting. When the detectives told Moore that witnesses said other wise, 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 concer ned with Moore's confession based on his age, functionally l ow IQ, and Attention Deficit Hyperactivity Disorder. Moore's IQ tests indicated he was in a "borderline range of intellec tual functioning."

10 Detective Gastrow testified at a later hearing tha t Moore appeared to understand his Miranda rights.No. 2013AP127-CR

7 detectives challenged Moore's story, but Moore insi sted 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 interrogat ion at 4:02 p.m. They allowed Moore to use the restroom a nd provided him with bologna sandwiches, a bag of chips, and wa ter. The break ended at 4:30 p.m. ¶19 After the break, Moore admitted some involvemen t in Parish's death. Moore said he was with someone nam ed Jevonte, but that Jevonte was not in the photo array he had been shown. Moore claimed that Jevonte shot Parish after robbin g him, but that Moore was "just part of it" as a "party to a c rime." Moore said he was supposed to get some of the money from the robbery. ¶20 Moore provided the detectives with a detailed s tory 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 dete ctives obtained the name "Jevonte" from some source like F ranklin, or whether the detectives hypothesized the name as a t echnique in interrogation. See ¶¶31, 34, infra.No. 2013AP127-CR

8 that the robbery had been Jevonte's idea and that J evonte had provided the gun. ¶21 Moore said that, although he did not see Jevont e fire the gun, he did see the flash of the gun when Jevon te fired it. He stated that after the gunshot, he and Jevonte fl ed 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 Jevo nte, saying that he was 15 or 16 years old 12 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 n ame, or his phone number. ¶23 Moore admitted that his earlier stories were li es. 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 h ad named someone else as the shooter; Moore told them that R onald and the others did not know Jevonte.

12 Later, Moore stated that Jevonte was 18 or 19 year s 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 t o question Moore at 8:28 p.m. Detective Salazar aske d Moore whether he would be willing to go to the crime scen e 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 detec tives 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 scho ol. When they arrived at the scene, Moore explained his stor y of what happened. Moore said that Parish had walked down a n alley and crossed a gangway. Moore stated he was at the mout h of the alley while Jevonte was in the yard near Parish. A ccording 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 tha t "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 implica tes the admissibility of his statements.No. 2013AP127-CR

10 ¶28 After the shooting, Moore said, they ran west d own the alley and crossed 23rd Street and made it to 24th S treet. Eventually, Moore and Jevonte separated. Moore wen t 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 t hat 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 J evonte was not real and that Moore had already been identi fied as being at the crime scene. Moore responded that he was wo rried the other person involved "might try to kill [him] or s omething." Detective Salazar assured Moore that no one would k ill 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 num ber earlier in the day, it is unclear whether or to wha t 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 phon e 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 w hy it's on.

MOORE: Hmm. SALAZAR: Okay. It's completely up to you. But tha t 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 tha t request. The detectives did not turn off the recorder, and t he interrogation continued. ¶34 Moore then told the detectives that Raynard was involved, not Jevonte. Moore said he had gotten th e name "Jevonte" from the detectives he spoke to earlier. Moore said that Ronald threatened to kill him if he told polic e 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. M oore also admitted he was in the backyard of the house where Parish was purchasing drugs, but maintained that he left the b ackyard whenNo. 2013AP127-CR

12 Raynard called Parish back to the window. Moore th en changed his story again and admitted that he had called Par ish back to the window. Moore explained that Parish had come b ack to the window, then Parish ran and Raynard shot him. Moor e continued to deny that he shot Parish or had the gun. ¶36 Detectives took a break and stopped the recordi ng 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 provide d a detailed account. He stated that he had lured Parish back t o the window where Parish had just purchased drugs, but maintain ed 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 th at?

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 tu rn it off? Okay. And we're not encouraging you to tu rn 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 rec order. C. 11:20 p.m. ¶40 At 11:20 p.m., the recording resumed. Detectiv e Salazar began the recording by saying——outside the interrogation room——that Moore had just "admitted he was the shoo ter and that he didn't want Raynard to get in trouble for what h e did and that he explained why he shot and how it made him f eel and everything . . . ." Detective Salazar then conceal ed the recorder in an envelope and took it into the interr ogation 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 Pa rish 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 ret urned the gun to Raynard later on October 8. ¶43 The detectives asked Moore if he was telling th e truth, and Moore replied that he was. The recordin g ended at 11:44 p.m. 15 D. Proceedings In Court ¶44 On October 13, 2008, Moore was charged with fir stdegree 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 requ est 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., 2 83 Wis. 2d 145, and Wis. Stat. § 938.195. Detective S alazar testified about Moore's request to turn off the rec ording device during part of his interrogation because of Moore's fear of retaliation. Detective Salazar explained that whil e the recorder was turned off, Moore told him that he sho t Parish. After Moore's confession, they took a break, then c overtly brought the recorder back into the interrogation ro om. ¶46 On cross–examination, Detective Salazar indicat ed he was alone with Moore when he confessed. After this confession, Detective Salazar spoke with his supervisor about t he possibility of a covert recording, as the Departmen t had not previously encountered such a situation. Detective Salazar stated his rationale for making the covert recordin g: "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 defe ndant, and "it came from the defendant twice." "[A] reasonabl e 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 heari ng.No. 2013AP127-CR

16 to turn off the recording device before he wanted t o go further with some discussion about certain aspects of the c ase." ¶48 Judge Conen ruled that Moore's first request to turn off the recorder was not a refusal because Moore co ntinued to talk. He reasoned, however, that because Moore was making the request a second time, the detectives may have thou ght 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 be fore Circuit Judge David Borowski after the State filed an amended information reducing the charge from first-degree r eckless homicide to second-degree reckless homicide as part y to a crime. Moore's plea agreement with the State was that ther e would be no presentence investigation, the victim's family woul d be allowed to speak at sentencing, the State would anticipate recommending a maximum prison term and restitution, the defendan t would submit to the court's criminal jurisdiction, and th e defendant would not seek alterations based on his juvenile st atus. Moore pled guilty to the amended charge. Judge Borowski accepted the plea, finding that it was freely, knowingly, intell igently, and voluntarily given. ¶50 On February 17, 2012, Judge Borowski sentenced Moore to 11 years of initial confinement and nine years o f extended supervision. The court also required Moore to pay restitution in the amount of $2,583.00. Moore was credited wit h 1,226 days of presentence incarceration.No. 2013AP127-CR

17 ¶51 Moore appealed his conviction on grounds that h is incriminating statements to police should have been suppressed. The court of appeals affirmed the circuit court, co ncluding that Moore refused to cooperate based on his two request s 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 con cluded that Moore's statements were voluntary based on his prev ious encounters with police, his ability to concoct the fake Jevonte story, and his ability to comprehend "party to a cr ime" liability. Id., ¶32.

II. STANDARD OF REVIEW ¶52 We must determine the voluntariness of Moore's statements to police. Whether Moore's statements w ere voluntary is a question of constitutional fact. Our review o f 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 Wi s. 2d 345, 629 N.W.2d 613). First, we accept the circuit cour t's findings of fact unless they are clearly erroneous. Id. Se cond, we independently apply constitutional principles to th ose facts.
Id. ¶53 This case also requires us to interpret Wiscons in 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 whe ther 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 revie ws 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 purpos es of prosecution violates the defendant's due process ri ghts. See Jerrell C.J., 283 Wis. 2d 145, ¶17; Rogers v. Richm ond, 365 U.S. 534, 540 (1961). A defendant's confession is volun tary if it is "the product of a free and unconstrained will, refl ecting deliberateness of choice, as opposed to the result of a conspicuously unequal confrontation in which the pr essures 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 (ci ting 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 p reponderance of the evidence——that a confession was voluntary. State v. Agnello, 226 Wis. 2d 164, 179–80, 593 N.W.2d 427 (1 999) (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 personalNo. 2013AP127-CR

19 characteristics 17 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 pra ctices deliberately used to procure a confession." State v. Clappes, 136 Wis. 2d 222, 239, 401 N.W.2d 759 (1987). In ot her words, a suspect's personal characteristics alone cannot for m the basis for finding that the suspect's confessions, admissi ons, or statements are involuntary. ¶57 We review police conduct for, among other thing s, "the length of questioning, general conditions or circum stances in which the statement was taken, whether any excessiv e physical or psychological pressure was used, and whether any in ducements, threats, methods, or strategies were utilized in or der to elicit a statement from the defendant." State v. Ward, 20 09 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 pol ice questioning tactics to determine if excessive coerc ion or intimidation or simple immaturity that would not af fect an adult has tainted the juvenile's confession." Jerrell C. J., 283

17 "The relevant personal characteristics of the defe ndant include the defendant's age, education and intellig ence, physical and emotional condition, and prior experie nce 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, "s pecial caution" must be taken with the methods of interrog ation 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 Moo re's personal characteristics. At the time of questioni ng, Moore was 15 years old. He attended eighth grade at Travis A cademy in Milwaukee. He indicated to police that he did not have any mental problems, had never attempted suicide, and c oped with whatever learning problems he had. When asked whet her he was sick or under the influence of drugs or alcohol, Mo ore stated
that he was not. ¶59 Moore's answers in early questioning also indic ated that he had a significant amount of prior police in teraction. Moore told police that he had been arrested previou sly for possession of marijuana, forgery, and possession of a dangerous weapon. Moore said he was on probation for the dan gerous weapon charge and provided police with the name of his pro bation agent. ¶60 Although Moore was only 15 years old at the tim e of his questioning, he had more experience with police and law enforcement than most people his age. Moore demons trated that he was able not only to develop a story about his n oninvolvement in the shooting but also to adapt the d etails of that story to information——either true or untrue——p ossessed by the police. For example, when detectives suggested that "Jevonte's" age did not make sense, Moore changed i t fromNo. 2013AP127-CR

21 between 15 and 16 to between 18 and 19. When they asked why nobody in the neighborhood knew "Jevonte," Moore sa id 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 ch anged 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 conclus ion that [his] mental condition, by itself and apart from it s relation to official coercion, should . . . dispose of the inqu iry into constitutional 'voluntariness.'" Colorado v. Conne lly, 479 U.S. 157, 164 (1986). Rather, it must be taken into con sideration and weighed against the conduct of police. ¶62 The tactics used by the detectives interrogatin g 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 ti me with breaks for food, trips to the restroom and the crim e 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 reas oning 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 dete ctives that he was aware of his Miranda rights and had read the m two or three times in the past. Nevertheless, the detecti ves informed Moore of each of his rights separately and waited f or Moore to verify that he understood. Moore also was furnishe d with a written copy of his rights as the warnings were rea d to him. Moore explained his right to end questioning to det ectives. ¶64 It is true that the detectives used tactics suc h as minimizing, suggesting that Parish's death may have been an accident, and telling Moore that other witnesses we re saying he shot Parish, to elicit a confession from him. Alth ough 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 volunta ry because the pressures placed on him by interrogatio n 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 d ispositive. Thus, although the detectives persuaded Moore to co nfess that heNo. 2013AP127-CR

23 shot Parish, Moore's decision to do so was a volunt ary decision. 19 B. Interpretation of Recording Statutes ¶66 We now turn to the issue of whether, under the relevant Wisconsin statutes, Moore's questioning sh ould have been recorded in its entirety. We look to Wis. Sta t. § 938.195 to determine whether, and to what extent, the statu tory 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 custodi al 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 rec ord 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 supp orts at least a circumstantial determination that police did cont act Moore's father. Short of a violation of Wis. Stat. § 938.1 9(2) or some evidence that police purposefully cut Moore off fro m his parent or another "friendly adult" in order to secure a co nfession, we hesitate to say that Moore's father's absence can b e considered an "improper police practice" to be weighed against his personal characteristics. Thus, although we take Moore's fa ther's absence into account as a part of the totality of t he circumstances surrounding Moore's confession, his a bsence does not change the outcome. The Center on Wrongful Convictions of Youth and the Wisconsin Innocence Project, as amicus, ask us to a dopt a per se rule excluding statements made by juveniles when th ey are denied the opportunity to consult with a parent or other f riendly adult. In Jerrell C.J., we were asked to adopt a s imilar rule. We declined to do so in Jerrell C.J., 283 Wis. 2d 1 45, ¶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 subseq uent 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 o f any custodial interrogation of a juvenile that is conducted at a place of detention unless a conditio n 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 o f any custodial interrogation of a juvenile that is conducted at a place other than a place of detentio n 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 require d 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, creati ng subsection (3) to implement the above-stated direct ive. 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 t heNo. 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 audi o 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 th e chapter entitled "Commencement of Criminal Proceedi ngs." Section 968.073 deals with "Recording custodial int errogations." This section somewhat parallels Wis. Stat. § 938.19 5(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 visua l recording was made of the interrogation so long as a law enforcement officer or agent of a law enforceme nt 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 th e remedy in Wis. Stat. § 938.31(3)(b). It provides: If a statement made by a defendant during a custodi al interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio andNo. 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 asse rts and the court finds that one of the following conditions applies or that good cause exists for no t 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 o f an audio or audio and visual recording of the interrogation in evaluating the evidence relating t o 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 de tectives did not discontinue the audio recording of the interrog ation? 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 "faithful ly 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 mea ning" unlessNo. 2013AP127-CR

27 they are technical or defined in the statute. Id., ¶45. We also consider "the scope, history, context and purp ose of the statute" as a part of this plain–meaning analysis. Id., ¶48 (quoting State ex rel. Cramer v. Schwarz, 2000 WI 8 6, ¶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. I d., ¶46. Normally, we are "not at liberty to disregard the p lain, clear words of the statute." Id. (quoting State v. Pratt , 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). If, on th e other hand, the statute is ambiguous we may examine extrinsic s ources, such as legislative history. Id., ¶¶47, 50. ¶77 In this case, the statute is not ambiguous. Th us, interpretation of the phrase "refused to respond or cooperate" represents an ordinary case of statutory interpreta tion. With respect to the remedy for a violation of the statut e, however, we are presented with a dilemma. A literal reading of the statute appears to undermine the purpose of the sta tute for juveniles who are prosecuted in adult criminal cour t 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. § 93 8.195 defines "refused." We therefore consider the commo nly accepted definition of the word. "Refuse" may be defined as "to express oneself as unwilling to accept . . . [or] to show o r expressNo. 2013AP127-CR

28 unwillingness to do or comply with something . . . ." Webster's New Collegiate Dictionary 972 (5th ed. 1977). A "r efusal" is "The denial or rejection of something offered or de manded." Black's Law Dictionary 1285 (7th ed. 1999). ¶80 A suspect who "refuse[s] to respond or cooperat e" 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 l onger participate in the interrogation unless the recordi ng device is turned off. A refusal must be affirmative; it is n ot enough for officers to assume that the interrogation will yiel d better results if the recording device is turned off. ¶81 It is clear from the record that Detectives Lou gh and Salazar stopped recording their interrogation of Mo ore based on Moore's stated preference, not on his refusal to re spond 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 recorde r shut off, and that shutting it off was Moore's "choice." We must note that Detective Salazar previously offered to turn o ff 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 devi ce in this case. The detectives' decision appears to be exact ly what Moore wanted. Nonetheless, giving juvenile suspects the "choice" of whether to have their questioning recorded would de feat theNo. 2013AP127-CR

29 purpose of the statute, which is to ensure that pol ice do not use unfair tactics to elicit confessions from juven iles. In cases of questionable police conduct——however rare they may be—— courts would be able to analyze only the police tac tics used to induce, euchre, or coerce the juvenile into "choosi ng" to have the recorder turned off, and would be able merely t o draw inferences about the tactics used to obtain the juv enile's later statements and admissions. ¶83 After Moore's original request to turn the reco rding device off, he continued making statements and answ ering questions. His second request was similar to the f irst. Moore never told the detectives he would end the interrog ation or stop answering questions if the recorder was left on. D etectives Salazar and Lough may have felt that they were gett ing incomplete or dishonest answers from Moore due to t he recorder's presence, but that suspicion, coupled with Moore's request, was not enough to determine that Moore "refused to resp ond or cooperate." 20 ¶84 A majority of the court concludes that Moore di d not refuse to respond or cooperate unless the recorder was turned

20 Although this may seem at first to be an additiona l hurdle for law enforcement to clear in its pursuit of criminal suspects, we note that despite initial resistance t o mandatory recording laws nationwide, an overwhelming majority of police departments prefer to record interrogations. See W illiam A. Geller, Videotaping Interrogations and Confessions, in Nat'l Inst. of Justice, U.S. Dept. of Justice, Research i n Brief 1, 10 (Mar. 1993).No. 2013AP127-CR

30 off. We recognize and appreciate the view that Moo re 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 pa rts 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 allegi ng 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 delinq uent" and that this subsection is part of a section on the "f act-finding hearing"——e.g., the trial——in juvenile delinquency cases. ¶87 Wisconsin Stat. § 972.115(2)(a) provides a diff erent remedy in felony criminal cases, namely, a jury ins truction that it is the policy of this state to make an audi o 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 vi olated any state or federal criminal law, except as provided in . . . [§] 938.183 . . . ." Section 938.183, in turn, gives adult courts original jurisdiction over certain off enses alleged to have been committed by juveniles, including seco nd degree reckless homicide. See Wis. Stat. § 938.183.No. 2013AP127-CR

31 felony and that the jury may consider the absence o f an audio or audio and visual recording of the interrogation in evaluating the evidence relating t o the investigation. Wis. Stat. § 972.115(2)(a). ¶88 One way of reading these statutes reveals troub ling incongruities in the statutory scheme. For example , if a juvenile's unrecorded statement would be excluded i n juvenile delinquency proceedings but is admissible in adult court, the state will often have the power to overcome the con sequences of an improper failure to record custodial interrogati on 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 state ments in major felony cases is plainly inconsistent with the court's decision in Jerrell C.J. However, determining whet her such a result is what the legislature authorized and inten ded implicates the legislature's authority to supersede this court's exercise of superintending authority. ¶90 Resolving the question of remedy here would yie ld no satisfactory answer. Fortunately, that is not nece ssary 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 ne cessary and unavoidable. Here the potential confrontation is a voidable. No four members of this court agree on the proper reme dy for a violation of Wis. Stat. § 938.195 in the criminal p rosecution ofNo. 2013AP127-CR

32 a person under the age of 17, but a majority does a gree that any error in admitting Moore's confession was harmless in this case.
C. Harmless Error ¶92 Assuming, arguendo, that Moore's unrecorded sta tements should have been suppressed by the court, we turn t o 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 shal l be reversed or set aside or new trial granted in an y action or proceeding on the ground of . . . the improper admission of evidence . . . unless in the opinion of the court to which the application is ma de, after an examination of the entire action or proceeding, it shall appear that the error complain ed 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 t he test for harmless error analysis. See Armstrong, 223 Wis. 2 d at 368-69; see also State v. Dyess, 124 Wis. 2d 525, 544–45, 3 70 N.W.2d 222 (1985). ¶94 The harmless error inquiry asks whether "the er ror complained of has affected the substantial rights o f the party seeking to reverse or set aside the judgment, or to secure a new trial." Wis. Stat. § 805.18. Stated differently, the questionNo. 2013AP127-CR

33 is "whether it was 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obt ained.'" 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. 2 d 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 wa rranted in this case. Moore pled guilty to second-degree r eckless homicide as a party to the crime. Even if the stat ements Moore made while the recorder was turned off had been sup pressed, it is clear beyond a reasonable doubt that he would ha ve pled guilty to the reduced charge. ¶96 "[T]he second-degree reckless homicide statute requires 'both the creation of an objectively unrea sonable and substantial risk of human death or great bodily har m 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 (c itation omitted); see also Wis. Stat. § 940.06. The party to a crime statute imposes criminal liability on "whoever is c oncerned in the commission of a crime," including those who "ai d and abet" the commission of the crime and those who are "part y 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 protecti on andNo. 2013AP127-CR

34 benefit of a recording during most of that time. H is statements were voluntary. ¶98 Statements made by Moore prior to 10:52 p.m. in clude 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 obtai ned 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 confessi ng 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 ha d been turnedNo. 2013AP127-CR

35 off for a brief period, it was still admissible and had virtually the same content as Moore's unrecorded co nfession. 22 ¶100 Moore's situation at the pleading stage was vi rtually the same regardless of any possible error made by t he circuit court in denying suppression of Moore's unrecorded statements. The State still had ample evidence to support the p arty to a crime charge that Moore ultimately pled to. 23 Because we are persuaded beyond a reasonable doubt that Moore woul d have pled guilty to the same charge, we hold any error discus sed herein to
be harmless.

IV. CONCLUSION ¶101 We agree that Moore's incriminating statements were voluntary. However, Moore did not "refus[e] to coo perate" with police during his interrogation. It was therefore a violation

22 Moore contends that his confession after the recor der was turned back on should be inadmissible, relying on S tate 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 juv enile suspect that was unrecorded from the beginning until the su spect's confession. Only after the suspect confessed did p olice record her statements. Where, as here, a recording "booke nds" the questioning with only a short period of time unreco rded in the middle, concerns about police coercion are far less prevalent.

23 It is plausible that Moore's changing story throug hout his interrogation is at least part of the reason th e State amended the charge from first-degree reckless homic ide to second-degree reckless homicide as a party to a cri me. Regardless of which version of Moore's story the St ate relied upon, by 5:00 p.m. he had provided the detectives w ith details of his involvement sufficient to find criminal culp ability under the amended charge.No. 2013AP127-CR

36 of Wis. Stat. § 938.195 for police to cease recordi ng the interrogation. ¶102 Nevertheless, the error, if any, in not suppre ssing some of Moore's statements, was harmless. Moore ad mitted to participating in the crime prior to the recording b eing turned off, and he repeated his confession that he was the shooter after the recording was turned back on. Accordingl y, 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 vo luntary. 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 juven ile'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 interrogat ion generally must be recorded, this case was an adult criminal c ourt proceeding, not a juvenile court delinquency procee ding. My conclusions are based upon a plain meaning statutor y analysis. ¶104 I write separately to clarify that this case h as a somewhat unique posture. I hope to clarify that we should not conflate procedures and remedies available in juven ile court with those in adult court. To be clear, had the ca se been tried to a jury in adult court, Moore could have requeste d a jury instruction under Wis. Stat. § 972.115(2)(a), but r elief 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 a vailable to him because his case was not a "court proceeding al leging the juvenile to be delinquent." See Wis. Stat. § 938.3 1(3)(b). Moreover, a jury instruction is of little significa nce since Moore pled guilty in adult court. I write separate ly because the majority opinion stops short of clearly conclud ing that theNo. 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 sta tute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court fo r Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (q uoted source and citations omitted). "Statutory language is giv en 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 omitt ed). "Where statutory language is unambiguous, there is no need to consult extrinsic sources of interpretation, such as legisl ative history." Id., ¶46 (citations omitted). "'In cons truing or interpreting a statute the court is not at liberty to disregard the plain, clear words of the statute.'" Id. (quot ing State v. Pratt, 36 Wis. 2d 312, 317, 153 N.W.2d 18 (1967)). "We should not read into the statute language that the legisla ture did not put in." Brauneis v. LIRC, 2000 WI 69, ¶27, 236 Wi s. 2d 27, 612 N.W.2d 635 (citing In the Interest of G. & L.P., 11 9 Wis. 2d 349, 354, 349 N.W.2d 743 (1984)). The majo rity 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 rec ording requirement in Wis. Stat. § 938.195. Majority op., ¶¶84-85.No. 2013AP127-CR.akz

3 That statute provides: "A law enforcement agency sh all make an audio or audio and visual recording of any custodia l 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 qu arrel with the legislative call to record a juvenile's stateme nts during a custodial interrogation. ¶107 I also do not question that the remedy for a v iolation of the recording requirement is suppression under W is. Stat. § 938.31. However, the legislature also determined that suppression under § 938.31 is available only in a j uvenile court delinquency proceeding. This statute provides, in relevant part: Except as provided under par. (c), a statement made by the juvenile during a custodial interrogati on 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 ma jority opinion seems to avoid the inevitable conclusion th at suppression under that statute is unavailable in ad ult court. Majority op., ¶¶86-91. We should adhere to the leg islation's plain language. ¶108 Moore is not entitled to suppression under Wis . Stat. § 938.31(3)(b) in adult court. By this statute's p lain terms, the suppression remedy applies in a "court proceedi ng alleging the juvenile to be delinquent." Wis. Stat. § 938.3 1(3)(b). A criminal prosecution in adult court is not a "court proceedingNo. 2013AP127-CR.akz

4 alleging the juvenile to be delinquent." Therefore , this statute's suppression remedy for a juvenile delinqu ency proceeding does not apply in adult court, even if t he adult court defendant is a juvenile. A court would have to impermissibly read language into this statute in or der to determine that its suppression remedy applies in ad ult court. See Brauneis, 236 Wis. 2d 27, ¶27 (citation omitted ) ("We should not read into the statute language that the legisla ture did not put in."). ¶109 I recognize that, had Moore chosen to have a j ury trial in adult court, he could have requested a jur y 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 t he juvenile code. Wisconsin. Stat. § 972.115 does provide:

If a statement made by a defendant during a custodial interrogation is admitted into evidence i n 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 asse rts and the court finds that one of the following conditions applies or that good cause exists for no t 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 o f an audio or audio and visual recording of the interrogation in evaluating the evidence relating t o

1 I do not mean to suggest that a jury instruction i s 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 distingu ish between adult and juvenile defendants. Instead, this statu te allows for a jury instruction, under certain circumstances, in a felony prosecution tried before a jury in adult court. Th is 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 fro m expressly holding that suppression was not availabl e to Moore is unclear to me. Specifically, the majority opinion states that if a juvenile's unrecorded statement would be exclu ded in juvenile delinquency proceedings but is admissib le 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 wa ive the juvenile into adult court. Majority op., ¶88. This proposition is too cavalie r for me. Waiver of a juvenile into adult court is not such a n automatic result. Moreover, a prosecutor and a court should be highly suspect if waiver is being sought to avoid suppress ion 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 c ourt if certain conditions are met); Wis. Stat. § 938.183(1 ) (listingNo. 2013AP127-CR.akz

6 juvenile offenses over which adult courts have "exc lusive original jurisdiction"). "The decision to waive ju venile 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 omitt ed). I do not agree that law enforcement would flout the stat utory recording mandate, thinking either that the prosecu tor will "cover" for their disregard of the recording requir ement by prosecuting a juvenile in adult court or that a juv enile court would waive a juvenile into adult court to avoid su ppression 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 whet her the case will proceed in adult or juvenile court. In fact, the vast majority of juvenile cases proceed in juvenile cour t, not adult court. Most officers would not risk suppression an d would recognize that unrecorded statements of a juvenile could be suppressed under Wis. Stat. § 938.31(3)(b) in a juv enile delinquency proceeding. Thus, we need not fear tha t officers will be cavalier with respect to their statutory du ty to record a custodial interrogation of a juvenile, given the fact that at the time of the recording, officers will not have a ny assurance that the case will be tried anywhere but juvenile c ourt.No. 2013AP127-CR.akz

7 ¶112 Also, the majority opinion states that it avoi ds a "direct confrontation with another branch of govern ment" by declining to determine whether the suppression reme dy under Wis. Stat. § 938.31(3)(b) applies in adult court. Major ity op., ¶91. The majority opinion reflects that "[p]ermitting th e use of unrecorded juvenile statements in major felony case s is plainly inconsistent with the court's decision in [In re Je rrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110]." Ma jority op., ¶89. In Jerrell C.J., the court held that a writte n confession made by a juvenile during a custodial interrogation was inadmissible as evidence in that juvenile court pro ceeding. Jerrell C.J., 283 Wis. 2d 145, ¶¶3, 36. The court went further to require recording of a juvenile's statements dur ing 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 presen t case, a separation-of-powers issue is not before the court, and the majority opinion should not decline to resolve whet her suppression under § 938.31(3)(b) applies in adult c ourt because the legislature has spoken. I would not use our su pervisory authority to now create additional relief, and I be lieve 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 majorit y opinion undertakes an analysis as if the circuit court erre d in denying Moore's suppression motion. Specifically, it state s that,No. 2013AP127-CR.akz

8 "[a]ssuming, arguendo, that Moore's unrecorded stat ements should have been suppressed by the court, we turn to wheth er any error was harmless." Majority op., ¶92. It goes on to h old that "any possible error made by the circuit court in denying suppression
of Moore's unrecorded statements" was harmless. Ma jority op., ¶100. Because the circuit court did not err, I wou ld not assume for the sake of argument that the circuit court err ed. ¶114 The circuit court denied Moore's suppression m otion 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 S tat. 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 statem ent would be admissible, but there would be a——an instruction th at would be given explaining the ramifications of that." ¶115 In sum, the circuit court correctly denied Moo re's suppression motion on the grounds that, because Moo re was tried in adult court, suppression under Wis. Stat. § 938. 31(3)(b) was not available to him. Because the circuit court di d not err by denying the suppression motion, there is no need to undertake a harmless error analysis. ¶116 For the foregoing reasons, I respectfully conc ur. ¶117 I am authorized to state that Chief Justice PA TIENCE 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. Afte r roughly 11 hours in custody, the defendant confessed to the cr ime. The defendant now seeks to suppress his confession. ¶119 The defendant argues that admission of his con fession would violate the federal and state constitutions b ecause 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 o f 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 produc t of a free and unconstrained will, reflecting deliberaten ess of choice, as opposed to the result of a conspicuously unequal confrontation in which the pressures brought to bea r 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 d efendant's confession is constitutionally "involuntary," then its admission violates the defendant's due process rights under t he 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 Statute s 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 statut e 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 t he circumstances surrounding the confession. 5 In conducting this totality-of-the-circumstances review, a court weigh s a defendant's personal characteristics (including the defendant's "age, education and intelligence . . . and prior ex perience with law enforcement") against the interrogation methods employed by the State (including "the length of questioning"; t he presence of a parent, attorney, or other interested adult; a nd "whether the defendant was informed of the right to counsel and right against self-incrimination"). 6 ¶123 Courts must exercise "special care" when asses sing 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 pers onal characteristics of the defendant against the interr ogation 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 voluntar iness 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 disabilit ies. The defendant may therefore have struggled to under stand 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 St ate's request determined that the defendant functions in the "borderline" range of intelligence, meaning his int elligence quotient (IQ) score is between 71 and 84. An evalu ation of the defendant performed at the defendant's request simi larly concluded that the defendant's IQ score falls betwe en 69 and 79. Intellectual disability, also known as mental retar dation, is commonly defined as an IQ score of 70 or below. Se e MedLine Plus, U.S. Nat'l Library of Medicine, "Intellectual disability" (last updated May 10, 2013), http://www.nlm.nih.gov/medlineplus/ency/article/001 523.htm.No. 2013AP127-CR.ssa

4 • The defendant was diagnosed with at least three m ental health issues: attention deficit/hyperactivity dis order, mood disorders, and conduct disorders. In addition , he has previously displayed problems with substance ab use. The defendant's mental health issues and behavioral problems are factors weighing against the voluntari ness 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 b efore he confessed. During that time, the defendant was repeatedly interrogated by two sets of detectives f or a total of nearly six hours. 10 The duration of the interrogation weighs against the voluntariness of t he confession. • The defendant did not confer with a friendly adul t at any point during the interrogation. The absence of a p arent, attorney, or other interested adult at the defendan t's

10 "Police complete nearly all interrogations of juve niles and adults in less than one or two hours. By contr ast, 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 Empi rical Study of Policy and Practice, 97 J. Crim. L. & Criminolog y 219, 308 (2006).No. 2013AP127-CR.ssa

5 interrogation weighs against the voluntariness of t he confession. 11

• The defendant did not demonstrate that he underst ood his right to counsel. 12 At one point, a detective stated as follows: "If you decide to answer questions now wi thout a lawyer present, you have the right to stop questi oning at any time you wish and the right to ask for and t o 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 al l, then I don't want to say no more, I can just, um, d on't say nothing."

11 The record does not reveal whether the police actu ally contacted the defendant's parents, although they in formed the defendant that they had. It is undisputed, however , that the defendant had no opportunity to confer with a frien dly adult during the interrogation. "[T]he failure 'to call the parents for the purpose of depriving the juvenile of the op portunity to receive advice and counsel' will be considered 'str ong evidence that coercive tactics were used to elicit the incri minating 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 det ermining the constitutional validity of confessions should consi der "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 exis t 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, whi ch suggests the defendant did not fully grasp his Mira nda rights, weighs against the voluntariness of the confession. • The detectives' conduct in interrogating the defe ndant 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 employ ed 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 defen dant to tell the truth, and misinformed the defendant ab out various aspects of their investigation. The use of these psychological techniques in the instant case exceed ed the defendant's ability to resist and weighs against th e 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 p olice interrogation techniques are especially apt to lead to false confessions. Juveniles and the mentally retarded a re the most vulnerable to modern psychological interrogation te chniques." 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 gr ader of borderline intelligence, was in custody for roughly 11 hours; was interrogated for periods totaling nearly six ho urs; was subject to psychological interrogation methods; had no parent, attorney, or interested adult present during his in terrogation; and did not demonstrate an understanding of his Mir anda rights before making incriminating statements to the polic e. ¶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 suppress ed. ¶127 Considering the factors outlined above and the court's holding in Jerrell C.J., and exercising special car e 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 harmles s error, 15 the confession should be suppressed. I would reverse t he decision of the court of appeals and remand the cause for fu rther proceedings.

15 An error is harmless if the beneficiary of the err or (here the State) proves beyond a reasonable doubt t hat the error complained of did not contribute to the result. St ate v. Hale, 2005 WI 7, ¶60, 277 Wis. 2d 593, 691 N.W.2d 637. Th e 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 WALS H BRADLEY joins this opinion.No. 2013AP127-CR.ssa

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