Lawyer wants tape in robbery case suppressed

Jan. 03, 2014 @ 05:57 PM

The attorney of a teenage robbery suspect wants a judge to suppress evidence in the case because Durham police let an interrogation-room recording system roll while the youth spoke to his mother.

The teen, former Southern High School wrestler Willie Hayes, is due in court next week. He faces counts of robbery with a dangerous weapon, conspiracy and felonious breaking and entering that date from the summer of 2012.

His lawyer, Alex Charns, contends police broke state and federal wiretapping law when they recorded an upset Hayes talking with his angry mother during a break in his interrogation.

Charns wants anything police learned from the discussion, and from any follow-up work based on what they heard, excluded from the evidence in the case.

“Using an angry parent against the distraught juvenile, and unlawfully recording their private conversation, is an attack on the family that should not be countenanced,” he said in a motion that’s been pending since June.

Hayes was 17 years old when police brought him in for questioning in the case late in July 2012.

His age at the time of the incident made him a juvenile under North Carolina law, albeit one who would be charged and tried as an adult. Police say he waived his rights to have a lawyer or parent present during questioning.

State law that went into effect in December 2011 requires police to make an “electronic recording” of any custodial interrogation of a juvenile involved in a criminal investigation.

The recording must include audio and may also include video.

The law requires that the tape provide “an uninterrupted record” of the interrogation, starting when an officer advises a suspect of his Constitutional rights and ending only when the interrogation is “completely finished.”

It does, however, allow for interruptions of the recording during “brief periods of recess” requested by officers or the suspect.

Charns says police never told Hayes he was being recorded, and initially prevented him from talking to his mother.

But after the initial round of questions, they asked Hayes if he wanted them to “escort his mother upstairs and tell her the truth,” Charns said.

The room’s microphone recorded what Hayes “said while crying alone in the room” before she arrived, plus what happened outside the presence of a detective as “the furious mother berated her son, and the son made disclosures to the mother,” Charns said.

Those disclosures wound up in the detective’s report and have been used to prosecute Hayes, he said, adding that police also never told the mother she was being recorded.

Charns contends police needed a court order before recording the conversation.

“This is similar to a confessional where one steps out of the very crowded church and into a small, closed room where the conversation between priest and penitent is privileged and protected,” he said. “A child may confess to his parent while remaining silent with the constable.”

Juvenile-rights advocates welcomed the N.C. General Assembly’s passage of the interrogation-recording statute in 2011, and have argued that the state should end the practice of prosecuting 16- and 17-year-olds as adults.

Teens otherwise legally remain juveniles until they’re 18.

Asked about the recording statute, Charns argued that it doesn’t authorize “warrantless electronic surveillance” by police of conversations occurring outside their presence.

“This statute is for the protection of juveniles, not for the purpose of tricking them and their parents,” he said.