Dorsey v. United States

2 A.3d 222, 2010 D.C. App. LEXIS 496, 2010 WL 3256378

• Court: District of Columbia Court of Appeals
• Decided: August 19, 2010
• Docket: 06-CF-1099
• Status: Published

Opinions

REID, Associate Judge:

The government concedes that during the first phase of police interrogation of appellant, James A. Dorsey, “the police violated the prophylactic rule articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)” by not stopping the interrogation when Mr. Dorsey invoked his right to counsel after having initially waived his Miranda rights. This case requires us to determine, primarily, (1) whether Mr. Dorsey initiated conversation with the police that resulted in his confession during the second phase of the interrogation; and (2) whether the trial court properly determined that, before the second phase of interrogation, he knowingly and intelligently, and voluntarily waived his rights under Edwards.¹ We affirm the judgment of the trial court.

FACTUAL SUMMARY

The record shows that Mr. Dorsey’s conviction was based on his May 3, 2005 assault and robbery of Vassiliki Fotopoulous, an 83-year-old limited English-speaking street vendor, who sold merchandise outside a subway station located in the Northwest quadrant of the District of Columbia. As Ms. Fotopoulous proceeded to her nearby apartment house while pushing a cart containing her vending items, Mr. Dorsey struck her and she fell to the ground. When she would not give him her money, Mr. Dorsey kicked her several times, causing “excruciating pain,” and he removed about $300 from her person. Ms. Fotopoulous did not recall all of the details of the assault but remembered both seeing her children at the hospital and being in a lot of pain, especially “excruciating pain” in her leg. Theodora Kunec, Ms. Fotopou-lous’s daughter, testified that she saw her mother in the emergency room of the hospital on May 3, 2005. Her mother’s “eyes were swollen and ... blue”; her face was swollen; “the whole body had blood everywhere” — nose, mouth; “her head had bumps all over”; “she was moaning, and she was in horrible pain.” Four persons identified Mr. Dorsey as the perpetrator after viewing a surveillance tape depicting the attack.²

After Mr. Dorsey’s arrest on another charge on May 7, 2005, he waived his Miranda rights at about 8:30 p.m., and the police interrogated him about the attack and robbery of Ms. Fotopoulous. Parenthetically, the record shows that Mr. Dorsey is a high school graduate, worked at a liquor store, had ten prior convictions, and has been arrested on more than thirty occasions. Mr. Dorsey spent approximately twelve or thirteen hours in the interview or interrogation room — from Saturday evening, May 7, until about 8:30 or 9:00 a.m. the next morning. He sat alone for several hours of that time.³ During this first phase of the police interview, several members of the Metropolitan Police Department (“MPD”) interrogated Mr. Dorsey. They ignored his repeated efforts to terminate the interrogation, specifically his statements that he wanted to tell his story in court; he wished to go to his cell so he could sleep; he needed to talk to a lawyer; he was waiting to be charged; and he did not want to talk. Despite the officers’ persistence in posing questions to him and their rigorous interrogation using tactics designed to persuade a suspect to talk and to confess, Mr. Dorsey never made a statement that implicated himself in the crimes committed against Ms. Fotopoulous. The officers took him to a cell around 8:30 a.m. on May 8.

According to the testimony of Detective Michael Ross, an apparently unidentified officer heard Mr. Dorsey banging on his cell in the afternoon around 3:30 or 4:30 p.m. “At some point, a detective overheard [Mr. Dorsey] say that he wanted to speak to Detective Ross, that he wanted to confess.” Mr. Dorsey was returned to an interview or interrogation room. As he sat there, MPD Officer Joseph Crespo, whom he knew, passed by. According to Officer Crespo’s testimony, Mr. Dorsey said: “Crespo, come here, I want to talk to you about what I did. I did it.” This encounter between Officer Crespo and Mr. Dorsey was not videotaped. Officer Cres-po asserted that he was not aware of how long Mr. Dorsey had been interrogated before he arrived for work on May 8, 2005. Nor did he know whether Mr. Dorsey “had waived or invoked” his right to counsel.

Nevertheless, Officer Crespo and Sergeant James T. Young, who was scheduled to question Mr. Dorsey that afternoon, interviewed Mr. Dorsey together. They did not reiterate the Miranda warnings. The DVD of the second phase of the interrogation shows Mr. Dorsey handcuffed to a chair and Officers Crespo and Young seated at the table with him. As the recording began, Officer Crespo told Mr. Dorsey:

As I walked by just now you called out to me. You obviously said you wanted to talk about this. O.K.? We are going to want for you to be specific. We want you to tell us the story first. Tell us exactly what happened. Then we have some questions for you. So tell us what happened.

When Officer Crespo declared, “[y]ou obviously said you wanted to talk about this,” Mr. Dorsey did not respond either verbally or by body movement to signify yes or no; he simply sat there.

Once Officer Crespo finished his remarks, Mr. Dorsey began to talk about the incident, without hesitation. About a week before the attack on Ms. Fotopoulous, Mr. Dorsey had asked her to change a $20 bill but she told him to get away from her vending stand. On the day of the attack, a man, who apparently had witnessed the earlier exchange, asked Mr. Dorsey why he had let Ms. Fotopoulous treat him that way. Mr. Dorsey then approached Ms. Fotopoulous and asked her for money. She rebuffed him. He walked down the street, waited for her, and asked for money when she appeared. When she failed to hand over her money, he shoved her to the ground, and kicked her before taking her money. Mr. Dorsey demonstrated how he assaulted and took money from Ms. Foto-poulous. Officer Crespo pressed for more details, saying “you’ve admitted it; it’s not going to get worse.” Mr. Dorsey provided more details and he stated several times that he did not know the woman he assaulted and robbed was “that old.” Eventually, the officers ceased their questioning so that Mr. Dorsey could eat and smoke a cigarette.

After more questions following Mr. Dorsey’s meal, Officer Crespo commented that he has known Mr. Dorsey “for a long time” and “appreciate[d] Mr. Dorsey’s talking to [him and Officer Young].” Just before his bathroom break, Mr. Dorsey said he did not “want a lot of charges,” and that he would “take the robbery” charge. Officer Crespo responded, in part: “Unfortunately, I’m not in charge of what happens to you. My job is to go get you_That’s not my job to determine what happens to you.” Mr. Dorsey reiterated that he did not “need a whole lot of charges” and that he would “take the robbery plea.”

ANALYSIS

Mr. Dorsey challenges the trial court’s admission of his videotaped confession into evidence; he claims that despite his explicit request to speak to a lawyer, the government failed to scrupulously honor that request. Instead, he maintains, the police continued to badger him and tried to extract a confession during the first day and night of questioning. He contends that his request to speak with detectives on the second day cannot be regarded as an “initiation” under Edwards, because “a suspect cannot be said to have validly ‘initiated’ contact with police when he asks to speak with them after they have violated Edwards by badgering him to confess.”

The government “agree[s] that the police violated the prophylactic rule of Miranda ..., and Edwards ..., when, in the first phase of their interrogation, they questioned [Mr. Dorsey] after he asserted his rights.” But the government insists that Mr. Dorsey’s “decision to renew the conversation [with the police] and confess did not result from any police coercion” since “[t]he police had not engaged in oppressive conduct overbearing [Mr. Dorsey’s] will.” In addition, the government contends, “any improper pressure had dissipated by the time of the second interview,” and Mr. Dorsey confessed “because he felt remorse and wanted to ‘get it off [his] chest.’ ”

Contrary to the government’s argument, Mr. Dorsey asserts that “the detectives’ constitutionally improper conduct ‘played the dominant role’ in eliciting [his] confession,” and that the real reason he decided to speak with the detectives the following day was not remorse. Rather, “he decided to talk because [Detective] Crespo promised him leniency — -an incentive that aligned with the advice that he should plead guilty to ensure that it would be a ‘straight robbery’ and the threat that refusing to talk would result in greater charges.”

The trial court determined that “there [was] a significant break in the questioning” when Mr. Dorsey was taken to “a different location” (a cell) so that he could sleep. The court credited the testimony of Officers Ross and Crespo about Mr. Dorsey’s initiation of contact with the police after he had slept, and discredited the assertions of Mr. Dorsey that he did not ask to talk to the police on the afternoon of May 8, and that he confessed because Officer Crespo said he would help him out. The judge specifically found Officer Cres-po to be a “very credible witness,” and noted that Mr. Dorsey did not say that Officer Crespo incorrectly stated that he, Mr. Dorsey, wanted to talk. The court reasoned that Mr. Dorsey decided to confess because “he wanted to get it off his chest and he didn’t know that lady was so old.” Thus, the trial court did not “find that there is any suggestion or any evidence that [Mr. Dorsey] didn’t initiate the conversation after he went to the cell and went to sleep.” The court observed that Mr. Dorsey had “knowledge of the [c]rimi-nal justice system” and “knew about a waiver” of his rights due to his past arrests and convictions. The court saw no “hint of coercion, force, intimidation, psychological whipping or anything else in viewing [the] videotape [of the confession].” Hence, the trial court concluded that Mr. Dorsey “initiated the contact and he voluntarily and knowingly and intelligently waived his right to remain silent and have a lawyer present because his testimony supported that as well as his demeanor.”

This appeal requires us to decide whether Mr. Dorsey initiated conversation with the police on the afternoon of May 8 and whether, having invoked his right to counsel during the first phase of police interrogation, he knowingly and intelligently waived his right to counsel during the second phase of police questioning. “The trial court’s underlying factual findings ... are reviewed under the ‘clearly erroneous’ standard, and they will only be set aside if they lack substantial support in the record.” Morris v. United States, 728 A.2d 1210, 1215 (D.C.1999) (citations omitted). However, we review the trial court’s legal conclusions de novo. See Robinson v. United States, 928 A.2d 717, 725 (D.C. 2007).

In reviewing the initiation and waiver issues, we are guided by legal principles distilled from Edwards, supra, and other cases. Edwards held, in part, that a suspect who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the [suspect] himself initiates further communication, exchanges, or conversations with the police.” 451 U.S. at 484-85, 101 S.Ct. 1880; see also Jennings v. United States, 989 A.2d 1106, 1113 (D.C.2010). The “fundamental purpose [of the Edwards/Miranda prophylactic rule] is to [p]reserv[e] the integrity of an accused’s choice to communicate with police only through counsel, by preventing] police from badgering a defendant into waiving his previously asserted Miranda rights.”⁴ Maryland v. Shatzer, — U.S. -, 130 S.Ct. 1213, 1220, - L.Ed.2d - (2010) (internal quotation marks and citations omitted; first alteration added); see also Morris, 728 A.2d at 1226 (Terry, J., concurring in part and dissenting in part). If the suspect “initiate[s] the meeting [with the police], nothing in the Fifth ... Amendment ] would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at trial.” Edwards, 451 U.S. at 485, 101 S.Ct. 1880.

Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), held that a court must apply a two-part test to determine whether a suspect’s responses to police questions after he has invoked his right to counsel, nevertheless may be admitted into evidence. First, the court must determine whether the suspect initiated the subsequent conversation with the police. The defendant initiates the conversation where his words “evince[ ] a willingness and a desire for a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. 2830. Second, because initiation does not “amount to a waiver of a previously invoked right to counsel,” id. at 1044, 103 S.Ct. 2830, the court must determine whether the government met its “burden ... to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation,” id. at 1044-45, 103 S.Ct. 2830 (referencing Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880). “This inquiry, of course, also includes an examination of the voluntariness of the waiver.” United States v. Straker, 596 F.Supp.2d 80, 95 (D.D.C.2009) (citations omitted). Thus, the waiver determination “ ‘depends upon the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.’ ” Id. (quoting Bradshaw, 462 U.S. at 1046, 103 S.Ct. 2830) (alteration in original).

There is no doubt on this record, as the parties recognize, that Mr. Dorsey invoked his right to counsel during the first phase of police interrogation, and that the police improperly ignored his request. Thus, the critical questions are whether Mr. Dorsey subsequently initiated conversation with the police on the afternoon of May 8, and whether he knowingly and intelligently, and voluntarily, waived his Fifth Amendment right to have an attorney present during the second phase of police interrogation.

We begin our analysis with a threshold matter. Mr. Dorsey insists that “initiation” is impossible in this case since he invoked his right to counsel during the first phase of the interrogation. As he states in his reply brief: “Mr. Dorsey does not challenge the trial court’s finding that he knocked on the eellblock door and asked to speak to Detective Ross. Rather, Mr. Dorsey contends that his request could not qualify as an ‘initiation’ under Edwards, because Edwards does not make its initiation exception available after police have violated Edwards.” He invites us to “adopt the reasoning of Judge Kozinski’s concurrence in Collazo v. Estelle, 940 F.2d 411 (9th Cir.1991) (en banc), and hold that the initiation ‘escape hatch’ is unavailable when police refuse to cease an interrogation after a request for counsel and badger the defendant to give up his rights.” We decline to adopt that reasoning because we do not believe that Fifth Amendment jurisprudence supports what we understand to be Mr. Dorsey’s argument — that the prophylactic rule announced by Edwards/Miranda means that once a defendant invokes his right to counsel and police continue their interrogation, he cannot thereafter validly initiate a conversation with the police. Edwards did not announce such an absolute prohibition; nor does Mr. Dorsey call our attention to any cases which have adopted this type of categorical bar with respect to initiation by a defendant.⁵

Indeed, as the government asserts, the “categorical rule” which Mr. Dorsey advocates “is undermined by the number of cases where courts have upheld the admission of defendant-initiated statements despite the fact that the police, in an earlier interview, failed to respect the defendant’s invocation of rights.” See, e.g., Howard v. Moore, 131 F.3d 399, 412-14 (4th Cir.1997) (en banc); State v. Yoh, 180 Vt. 317, 910 A.2d 853, 860-62 (2006). Furthermore, we do not believe that the Edwards rule was designed to end any possibility of a voluntary confession after a defendant invokes his right to counsel under the Fifth Amendment, which the police ignore. Without voluntary confessions, any number of crimes could not be resolved, and hence there would be “substantial costs to the truth-seeking process and the criminal justice system.” Montejo v. Louisiana, — U.S. -, 129 S.Ct. 2079, 2091, 173 L.Ed.2d 955 (2009) (citations omitted). In short, we reject Mr. Dorsey’s threshold argument, and since he has not challenged the trial court’s finding that he initiated conversation with Detective Ross on the afternoon of May 8, we proceed to determine whether he knowingly and intelligently waived his Fifth Amendment right to counsel before he confessed, and whether the waiver was voluntary.

The question whether Mr. Dorsey knowingly and intelligently waived his Fifth Amendment right to counsel before he confessed, and whether any waiver was voluntary, gives us some pause, particularly since the police did not reiterate the Miranda warnings before posing questions to Mr. Dorsey on the afternoon of May 8.⁶ The burden to demonstrate a knowing and intelligent, and voluntary waiver rests with the government. Bradshaw, 462 U.S. at 1044-45, 103 S.Ct. 2830. To examine this issue, we look at “ ‘the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.’ ” Id. at 1046, 103 S.Ct. 2830 (quoting Edwards, supra, 451 U.S. at 486 n. 9, 101 S.Ct. 1880). That is, we focus on “the particular facts and circumstances surrounding [this] case, including the background, experience, and conduct of the accused.”⁷ Id. at 1046, 103 (internal quotation marks and citations omitted). We are convinced on this record that “the failure of [the police] to provide [Mr. Dorsey] with new Miranda warnings impacts only slightly on the validity of his waiver of the right to counsel, because only a [relatively] short time had passed between [his] receiving the Miranda warning and [his] requesting to speak with [Detective Ross and Officer Crespo],” United States v. Velasquez, 885 F.2d 1076, 1087 (3d Cir.1989), and because the waiver is supported by the “totality of the circumstances.”

Here, Mr. Dorsey initially waived his Miranda rights but then invoked his right to counsel during the first phase of interrogation, thus showing that he was aware of his right to counsel. At that time, he not only had substantial experience with the criminal justice system due to his multiple arrests and ten prior convictions, but as a high school graduate he was able to read, write and understand the English language. During the second phase of police questioning, Mr. Dorsey further demonstrated his awareness of his rights through a comment to Officer Crespo after the break in questioning following his confession. He stated to Officer Crespo: “I know /all [did not have a] case on me. I could have probably gone to court and beat it anyway.” What undoubtedly motivated Mr. Dorsey to initiate the conversation with the police and to confess, as the trial court found, was his remorse at having hit an elderly woman. As Mr. Dorsey remarked at least four times during his conversation with Officers Crespo and Young, he did not know the victim was “that old.” He also recalled that he had “never [before] robbed a woman in [his] life.” Hence, we have no doubt that Mr. Dorsey knowingly and intelligently waived his right to counsel before he confessed. We turn now to whether his waiver was voluntary.

Mr. Dorsey’s initiation of conversation with the police on May 8, which he concedes is part of our “totality of the circumstances” analysis, contributed to the voluntariness of his waiver. Bradshaw, supra, 462 U.S. at 1046, 103 S.Ct. 2830. The trial court explicitly credited the testimony of Detective Ross and Officer Crespo that Mr. Dorsey, not the police, initiated the conversation, and the court expressly discredited Mr. Dorsey’s testimony that he did not initiate the conversation with the police. The trial court found credible Detective Ross’s testimony that while Mr. Dorsey was still in his cell around 3:30 or 4:00 p.m. in the afternoon, an officer heard him ask to speak with Detective Ross and heard him say “that he wanted to confess.” Mr. Dorsey was taken to an interview room to wait for Detective Ross. While he was there, Officer Crespo passed by and Mr. Dorsey called out to him that he wanted to speak with the officer “about what I did.” There is no ambiguity in Mr. Dorsey’s words. Clearly his words at least “evinced a willingness and a desire for a generalized discussion about the investigation” into the robbery of Ms. Fotopoulous. Bradshaw, supra, 462 U.S. at 1045-46, 103 S.Ct. 2830. Significantly, when Officer Crespo said to Mr. Dorsey, before asking any questions during the second phase of the police interview, “you called out to me” and “[y]ou obviously said you wanted to talk about this,” Mr. Dorsey did not protest or deny that he made a request to talk to Officer Crespo. After Officer Crespo invited Mr. Dorsey to recount what happened, Mr. Dorsey again did not protest or indicate that Officer Crespo mistakenly concluded he wanted to talk. Rather, Mr. Dorsey waived his right to counsel as he began to describe his encounter with Ms. Fotopoulous the week before he attacked her, and then provided details about how he attacked and robbed her.

We are unpersuaded by Mr. Dorsey’s contention that “the initiation in this case must be understood as the ‘delayed product’ of the unconstitutional interrogation that preceded it.”⁸ Nothing in this record convinces us that Mr. Dorsey succumbed to psychological pressure to speak to the police and to confess. I fully agree with and I join Judge Thompson’s concurring opinion. In response to the dissent’s presentation of a detailed examination of the first day of interrogation, Judge Thompson (1) details how Mr. Dorsey ably resisted police efforts to extract a confession on the first day of interrogation; and (2) demonstrates that Mr. Dorsey voluntarily initiated conversation with the police, and “his actions” were not “tainted by the detectives’ failure to honor scrupulously [his] invocation of his right to counsel.”

Mr. Dorsey revealed on May 7 and in the early hours of May 8 that, despite alcohol withdrawal symptoms, he could not be pressured into confessing even though the police used well-known psychological tactics designed to elicit a confession. Significantly, there is no evidence that the police used physical coercion or threats of physical punishment that prompted Mr. Dorsey to give in and confess on May 8. In fact, the trial court specifically found that there was not “any hint of coercion, force, intimidation, [or] psychological whipping” that prompted Mr. Dorsey’s confession.⁹ A more plausible explanation of his decision to initiate conversation with the police and to confess is the significant break in interrogation that allowed Mr. Dorsey to sleep and to reflect. After the break, he made a conscious choice to speak with the police about his crimes against Ms. Foto-poulous. On the particular facts and circumstances of this case, as revealed in the record, we see no danger that the “fundamental purpose [of the Miranda/Edwards prophylactic rule]” will be violated, because we are satisfied that “police ... badgering” [did not] prompt Mr. Dorsey “[to] waiv[e] his previously asserted Miranda rights.” Shatzer, 180 S.Ct. at 1220.

In sum, in light of our review of the record, the trial court’s credibility determinations and its factual findings, Mr. Dorsey’s substantial experience with the criminal justice system, his high school education, his obvious knowledge that he had a right to an attorney (which he had invoked during phase one of the interrogation), and his initiation of his conversation with the police on May 8, we have no doubt that the trial court was correct in concluding, based on the totality of the circumstances, that Mr. Dorsey knowingly and intelligently waived his right to counsel. For the same reasons, we are satisfied that the trial court was correct in asserting that Mr. Dorsey’s confession was voluntary, that is, it was the “product of a free and deliberate choice rather than intimidation.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). See also Bradshaw, 462 U.S. at 1044-46, 103 S.Ct. 2830; Jennings, supra, 989 A.2d at 1113-14.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.¹⁰

So ordered.

1 . A jury convicted Mr. Dorsey of aggravated assault while armed (shod foot), in violation of D.C.Code §§ 22-404.01, 22-4502 (2001), and armed robbery of a senior citizen, in violation of D.C.Code §§ 22-2801, 22-4502, 22-3601(a) (2001). The trial court sentenced him to concurrent terms of fourteen years for each offense, followed by five years of supervised release.

2 . Ondria Jeter, who lived in the area where Ms. Fotopoulous was attacked, was acquainted with Mr. Dorsey, had seen him over the past ten years, and had spoken with him in a neighboring park. When she saw the televised surveillance tape, she recognized Mr. Dorsey by his clothing (including skull cap), backpack, shoes, and walk. She was “95, 96 percent sure that [it was] [Mr. Dorsey].” Richard Harrison, who worked at a club in the area, had been accustomed to seeing Mr. Dorsey for the past five to seven years because Mr. Dorsey loitered outside the club "every day” and asked for money. He knew Mr. Dorsey as "Jimmy," and recognized him on the videotape by his walk, looks and mannerisms. He stated that Mr. Dorsey normally wore a black skull cap and carried a backpack. Dino Demetro (and his wife) owned a business in the area. He, too, identified the man on the televised surveillance tape as Mr. Dorsey, who was known to him as “Jimmy.” He knew it was Mr. Dorsey from "his body language,” that is, "the way he walksf] [t]he way he moves.” Mr. Dorsey had performed "odd jobs” for Mr. Demetro over the past four or five years. Mr. Dorsey wore the same outfit daily, consisting of Army or camouflage pants and he carried a backpack every day. Andrew Goss, a liquor sales representative, sold liquor to retail establishments in the area where Ms. Fotopoulous was attacked. He also knew Mr. Dorsey as "Jimmy,” and recognized him on the televised surveillance tape by "[t]he certain way he carried himself[,] [t]he way he walked.” He consistently wore black, and had a "do rag" for his head.

3 . The record includes eight DVDs of the interrogation, seven of which pertained to the first phase of the interrogation. Mr. Dorsey notes that “[t]he recording of the overnight interrogation is just over thirteen hours long.” The government estimates that "[o]ut of the 12 hours between the time he waived his rights at 8:25 p.m. and the time the first interview ended at 8:21 a.m., Mr. Dorsey was alone for approximately nine hours.”

4 . As the Court said in Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990):

The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determina-. tions of voluntariness, and implements the protections of Miranda in practical and straight-forward terms.

5 . State v. Beaupre, 123 N.H. 155, 459 A.2d 233 (1983), United States v. Whaley, 13 F.3d 963 (6th Cir.1994), and Metcalf v. State, 284 Ark. 223, 681 S.W.2d 344 (1984), cases cited by Mr. Dorsey, do not impose the categorical, per se initiation rule advocated by Mr. Dorsey. Beaupre did not involve initiation by a defendant; rather, it concerned a defendant’s response to an "invitation” or a "request” by a detective "for the defendant to make a statement,” 459 A.2d at 235. Whaley raised the question, whether a defendant's conversation three weeks prior to interrogation constituted an initiation — -a question the court did not decide since defendant did not ask to speak to the police on the day he confessed in response to police-initiated questions, 13 F.3d at 968. And, the defendant in Metcalf did not initiate contact with the police on the morning he was removed from his cell and taken to the interrogation room, 681 S.W.2d at 345. Wilson v. United States, 444 A.2d 25 (D.C. 1982), one of our precedents on which Mr. Dorsey leans, does not help him with respect to his per se rule against initiation. That opinion contained no facts on which the court could determine whether Mr. Wilson had initiated conversation with the police; nor did the case seek to address a per se initiation rule of the type advocated here.

6 . The government observes in its brief that our cases appear to conflict concerning our standard of review of the waiver issue; that is, whether it is deferential because it is a question of fact, or whether we review the issue de novo because it is a question of law. Compare Robinson, supra, 928 A.2d at 725 ("[W]e review the trial court’s legal conclusions [on the voluntariness of the waiver] de novo.’’) (citing In re M.A.C., 761 A.2d 32, 38 (D.C.2000) (internal quotation marks and other citation omitted; second alteration in original)), with Dean v. United States, 938 A.2d 751, 763-64 (D.C.2007) ("Whether a suspect voluntarily waived his Miranda rights is an issue of fact to which this court defers to the trial court's finding unless it is without substantial support in the evidence or plainly wrong.”). We interpret our cases as recognizing that the waiver issue may involve both factual and legal questions. As we said in In re M.A.C., supra:

If there is substantial evidence in the record to support the trial court's factual findings of a knowing, voluntary, and intelligent waiver of Miranda rights, we uphold them. However, we review the trial court's legal conclusions de novo. The ultimate issue of voluntariness is a legal question.

761 A.2d at 38 (internal quotation marks and citations omitted).

7 . In People v. Neal, 31 Cal.4th 63, 1 Cal. Rptr.3d 650, 72 P.3d 280 (2003), defendant initiated conversation with the police on the morning after the first interrogation. At trial, the detective who conducted the interrogation on both the first and second days "admitted that [during the first day of interrogation] he intentionally continued interrogation in deliberate violation of Miranda in spite of defendant’s invocation of both his right to remain silent and right to counsel ..., ‘probably’ '7 to 10 times.’ ” Id., 1 Cal.Rptr.3d 650, 72 P.3d at 286. In addition, the detective threatened defendant with the "heaviest] charge” — "first degree murder or whateverf,]" if he did not "cooperate” with the police. 1 Cal.Rptr.3d 650, 72 P.3d at 285. After the first day of interrogation, defendant was placed in a cell under deplorable conditions (including no access to a toilet). Id., 1 Cal.Rptr.3d 650, 72 P.3d at 286. On the morning of the second day, defendant asked to speak with the same detective who had interrogated him on the first day; he confessed during two interviews by the detective. Id., 1 Cal.Rptr.3d 650, 72 P.3d at 286-87. The court articulated three reasons for concluding that defendant’s confessions should have been suppressed on grounds that his initiation of the second interview and his confessions were not voluntary: (1) "in the course of the first interview, [the detective] intentionally continued interrogation in deliberate violation of Miranda in spite of defendant's repeated invocation of both his right to remain silent and right to counsel,” id., 1 Cal.Rptr.3d 650, 72 P.3d at 291; (2) defendant’s age (18), his minimal education ("fail[ure] to graduate even from continuation high school”), his "background ... of thoroughgoing neglect if not abuse,” his low intelligence, and his lack of "extensive” experience "with respect to legal matters,” id., 1 Cal.Rptr.3d 650, 72 P.3d at 292; and (3) the detective’s "[p]romise and threats to defendant at the first interview,” id. In contrast to the defendant in Neal, Mr. Dorsey had both a high school education and extensive experience with the criminal justice system and, as Judge Thompson’s concurring opinion substantiates, he knew how to deflect the questions of those who interrogated him, both when he chose not to respond on the first day of interrogation, and when he corrected the police detectives on the second day as they mentioned incorrect information. Furthermore, Mr. Dorsey was not threatened in the manner of the Neal defendant; nor was he promised any leniency in exchange for his confession. And, unlike the Neal defendant, Mr. Dorsey did not ask for and was not interrogated on the second day by Detective Thompson who clearly had violated his Edwards! Miranda rights on the first day of interrogation. Although Mr. Dorsey initially asked for Detective Ross, that detective did not question him on the second day, and had sought to safeguard Mr. Dorsey's right to counsel on the first day of interrogation (but the trial court found that Detective Ross had ignored one unambiguous assertion by Mr. Dorsey of the right to remain silent). Significantly, on the second day Mr. Dorsey also asked to speak with Detective Crespo (the trial court found him to be a "very credible witness”), and the second day of interrogation was conducted only by Officers Crespo and Young.

8 . Our dissenting colleague labels this matter as “the most egregious case of police disobedience to the requirements of Miranda and Edwards " that he has seen since joining the bench. His outrage is misplaced. He belabors what the government and the majority readily have acknowledged — that the police violated Mr. Dorsey’s rights during the first phase of the interrogation, but he virtually ignores the trial court’s findings and credibility determinations, as well as Mr. Dorsey's actions and words concerning the second phase. Moreover, he approaches the question of waiver in a formalistic manner. Yet, Justice Kennedy, speaking for the majority in Berghuis v. Thompkins, - U.S. -, 130 S.Ct. 2250, — L.Ed.2d -(2010) declared, in part:

The prosecution does not need to show that a waiver of Miranda rights was express. An “implicit waiver” of the "right to remain silent” is sufficient to admit a suspect's statement into evidence, [North Carolina v.] Butler, [441 U.S. 369] 376 [99 S.Ct. 1755, 60 L.Ed.2d 286 (2010)]. Butler made clear that a waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver." 441 U.S., at 373 [99 S.Ct. 1755].... Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning, ... it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. ... As Butler recognized, 441 U.S. at 375-76 [99 S.Ct. 1755], Miranda rights can therefore be waived through means less formal than a typical waiver on the record in a courtroom, ... given the practical constraints and necessities of interrogation and the fact that Miranda's main protection lies in advising defendants of their rights....

Berghuis, 130 S.Ct. at 2261-62 (other citations omitted). Our dissenting colleague’s conclusion that Mr. Dorsey confessed only as a result of the impact of the first phase of interrogation rings hollow on this record in light not only of the trial court's recognition of Mr. Dorsey's considerable experience with the criminal justice system and his obvious knowledge of his rights, but also Mr. Dorsey's conduct of first remaining silent and then starting to speak when Officer Crespo said to him at the very beginning of the second phase, "you called out to me. You obviously said you wanted to talk about this. O.K.?” In addition, after his confession, as we have noted, Mr. Dorsey made a statement that indicates he knew his rights when he confessed: "I know y'all [did not have a] case on me. I could have probably gone to court and beat it any way.” Even though our dissenting colleague resists the notion that Mr. Dorsey freely, intelligently and deliberately confessed to the vicious and painful beating of Ms. Foto-poulous out of remorse (because he did not know she was "that old”), the trial court so found, and the court further concluded, as the videotape establishes, that Mr. Dorsey confessed during the second phase of interrogation without any "hint of coercion, force, intimidation, psychological whipping or anything else....” On this record, our conclusion that Mr. Dorsey implicitly and deliberately waived his Miranda and Edwards rights intelligently, knowingly and voluntarily before confessing is consistent with the principles articulated in Berghuis.

9 . Mr. Dorsey leans heavily on Collazo, supra, in an effort to support his argument that he did not make a knowing, intelligent and voluntary waiver of his right to counsel, and hence, that his confession was not voluntary. The factual circumstances in Collazo are not the same as in this case, and as Bradshaw makes clear — the waiver determination "depends upon the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.” Id. at 1046, 103 S.Ct. 2830. The record in Collazo substantiated the appellant's claims that "he was scared, and that [the police interrogator’s] threats [were] what caused him to change his mind and talk without counsel.” 940 F.2d at 421. Mr. Dorsey never voiced fear of his interrogators and there is no indication in the record of any police threats that prompted him to initiate conversation and to confess. In addition, unlike Mr. Dorsey’s case, only three hours elapsed between the first phase of interrogation in Collazo and the appellant’s decision to talk. Id. at 420. Moreover, in Collazo, the interrogators in the second phase began by linking it to the first phase. Id. at 422. Here, Officer Crespo did not mention the first phase of police questioning as he began the afternoon session following Mr. Dorsey’s initiation of the conversation. Thus, Mr. Dorsey’s case is not like Collazo where there was "unmistakable evidence that no break in the causal chain or stream of events had occurred." Id. at 422.

10 . We are unpersuaded by Mr. Dorsey’s argument that the trial court abused its discretion by not permitting Dr. Richard Leo to present expert testimony on the specific techniques that police officers use to elicit confessions and the phenomenon or psychology of false confessions. According to the defense proffer, police techniques and false confessions are "part of two larger scientific areas known as social psychology and criminology.” Dr. Leo would have "explainfed] the relation of social psychology to criminology.” He would also have demonstrated that police techniques may coerce individuals to confess falsely. As we have reiterated repeatedly, "[t]he trial judge has wide latitude in the admission or exclusion of expert testimony, and his decision with respect thereto should be sustained unless it is manifestly erroneous.” In re Melton, 597 A.2d 892, 897 (D.C.1991) (en banc) (internal quotation marks and citation omitted). "Reversals for abuse are rare.” Id. (internal quotation marks and citation omitted). The trial court carefully considered the pleadings of the government and the defense on tills issue. It determined that the "factors and conditions” that Dr. Leo would discuss "are the same factors and conditions that jurors traditionally consider in evaluating challenges to custodial statements by individuals suspected of having committed a criminal offense.” In addition, the trial court stated that “the proffered testimony does not take into account an evaluation of the defendant, the proffered testimony is of minimal probative value, and under these circumstances would most likely interject confusion into the trial and the deliberating process.” On this record, we conclude that the trial court's ruling is not "manifestly erroneous.” Melton, 597 A.2d at 897.