State v. Moore
| Decision Date | 16 June 2015 |
| Docket Number | No. 2013AP127–CR.,2013AP127–CR. |
| Citation | 363 Wis.2d 376,864 N.W.2d 827 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Raheem MOORE, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
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.
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.
¶ 1 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 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 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.
¶ 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.
¶ 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.
¶ 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.
¶ 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 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 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 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.
¶ 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.
¶ 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...
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