The opinion of the court was delivered by: YOUNGDAHL
The defendant has been twice tried and convicted in this Court and both convictions have been reversed and remanded for new trials. Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618 (1962); 120 U.S.App.D.C. 123, 344 F.2d 508 (1964) (hereinafter referred to as to Naples I and Naples II). In Naples I the Court of Appeals for this Circuit, sitting en banc, ruled that a confession, obtained shortly after the defendant was brought to the precinct, had not been secured in violation of Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1958), and was therefore admissible, and this ruling was upheld as " law of the case" in Naples II. Recently the defendant moved the Court of Appeals to amend and clarify this latter ruling. The Court denied the motion to clarify but wrote a brief memorandum in which it declared that "[in] any new trial, the 'practice' of the law of the case would not operate to bar consideration of the admissibility of these confessions based upon material facts not heretofore adduced [citing Mallory cases] or supervening law [citing Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964)]." Naples v. United States, No. 18186, D.C.Cir., April 11, 1966, 123 U.S. App. D.C. 292, 359 F.2d 276 (footnotes omitted). On the authority of this memorandum, the defendant has moved this Court to suppress the confession. Two hearings have been held in which oral testimony has been taken and argument heard.
The Court of Appeals' meaning in this special memorandum is not entirely clear. The defendant has urged that the admissibility of the confession must now be determined de novo and that this Court is free to consider "supervening law" not only in the Escobedo area but in the Mallory area as well. However, such an interpretation would mean that a three-judge panel of the Court of Appeals had in effect granted this Court the power, without finding new facts, to reverse an en banc decision finding the confession here in question not barred by Mallory. Such a result seems highly irregular, particularly so when whatever "supervening law" in the Mallory area which exists in this Circuit reflects relatively minor changes in focus rather than a substantially different interpretation of the germinal case. Moreover, the interpretation urged by the defendant seems contrary to the language of the memorandum in which Mallory cases were cited for the proposition that new facts might permit reconsideration while Escobedo alone was cited as justifying reconsideration on the grounds of supervening law. The defendant has also contended that the Court of Appeals' citation of Escobedo indicates "that Escobedo should be applied to the facts of this case." Yet the Court's purpose in its memorandum seems to have been to permit this Court to reexamine the problem posed by this confession and to determine whether the Escobedo result should also obtain here. If the Court of Appeals had been certain that the facts of this case call into operation the Escobedo rule, it presumably would have expressed this certainty in the body of its memorandum and would have given this Court some clear guidance as to what the result of its reconsideration of the admissibility of this confession ought to be.
No substantial new facts bearing on the circumstances under which the confession was obtained were adduced at the hearing. The basic fact pattern thus remains as it was set forth by the Court of Appeals in Naples I, 113 U.S.App.D.C. at 283, 307 F.2d at 620.
On the night of December 16, 1958, Edna G. Jewel was found stabbed to death in her ransacked apartment in northeast Washington. The following day Detective Buch received two telephone calls from an unidentified caller who said he had a "friend" who might have been involved in the homicide. Arriving at the Palace Theater for a rendezvous with the caller, Detective Buch recognized him as Louis Naples. Louis said that the "friend" to whom he had referred was his brother, the defendant John Naples. He added that the defendant had told him on the night of the murder that he had done something terrible and would have to stay away for a while, that he had seen his mother with a lady's wallet that the defendant was supposed to have given her, and that the defendant carried a knife and a bag.
When the defendant arrived at the theater, about 1:15 p.m., Detective Buch placed him under arrest. He was allowed to speak briefly with his brother and the police overheard him deny to his brother that he had committed the murder. Thereafter, the defendant was placed in a police patrol wagon and driven to Precinct No. 9 by two uniformed policemen who asked him no questions. He arrived there at about 1:30 p.m., was led in by the back door and taken to the second floor office of Captain (then Lieutenant) Culpepper, where, in the defendant's presence, Detective Buch explained the circumstances of the arrest. Captain Culpepper then led the defendant to an adjoining room where, according to his testimony at the hearing,
I believe I explained to him in detail that I was a policeman, and then I told him that he did not have to talk to me or make a statement unless he wanted to. And he said he knew that, or "I know it." I am not sure which. * * *
Captain Culpepper admitted, however, that he did not inform the defendant of his right to counsel. Continuing, he said,
I asked him if he had done something wrong, something he was ashamed of, and he indicated that he did not know what I was saying, didn't know what I was referring to. I asked him again if he had not done something that he knew was wrong, and that he was ashamed of, and that he wanted to tell me about.
His answer was, "Do you mean about ...