___________ No. 93-2738

___________ Ralph C. Feltrop, * * Plaintiff-Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri * Michael Bowersox, * * Defendant-Appellee. *

___________ Submitted: March 1, 1996 Filed: August 8, 1996

___________ Before FAGG, HEANEY, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.
Missouri death row inmate Ralph C. Feltrop was convicted of mur dering and dismembering his live-in girlfriend, Barbara Ann Roam. The Missouri Supreme Court affirmed the conviction and death sentence, and the denial of Fel trop's petition for state post-conviction relief, in State v
. Feltrop , 803 S.W.2d 1 (Mo. banc), cert. denied , 501 U.S. 1262 (1991). We later affirmed the denial of his numerous claims for federal habeas corpus relief. Feltrop v. Delo , 46 F.3d 766 (8th Cir. 1995).

In rejecting Feltrop's claim that the police violated his right s under Mir anda v. Arizona , 384 U.S. 436 (1966), we gave deference to th e state court determina tion that he was not "in custody" prior to receiving Mirandawarnings, consistent with prior Eighth C ircuit cases construing 28 U.S.C. § 2 254(d) (1994). 46 F.3d at 773. The Supreme Court grante d certiorari, vacated our judgment, and remanded for further consideration in light of Thompson v. Keohane , 116 S. Ct. 457 (1995), in which the Court held

### Though he testified on another subject at the omnibus 1 

### motion hearing, Feltrop did not testify concerning Miranda issuesat that hearing or at trial. He did testify at the state postconviction hearing, and his testimony radically contradicted the earlier testimony of the police officers concerning the events surrounding his incriminating statements. The state courts did not consider this testimony because suppression issues must betaken up on direct appeal. Although Feltrop has cited his postconviction testimony in briefs to this court, he has given us no legal basis for considering it, and we may not do so. See Keeney v. Tamayo-Reyes , 504 U.S. 1, 10-12 (1992). -2- that the question of whether one is in custody for Miranda purposes must be reviewed de novo

. Feltrop v. Bowersox , 116 S . Ct. 559 (1995). We have
now reviewed supplemental briefs from the parties and considered that issu e de novo . We again conclude that Feltrop is not entitled to federal habeas corpus relief.

A. The I ncriminating Statements. Prior to trial, Feltrop moved t o suppress incriminatin g statements he made to police on the night of March 23, 1987. The trial court held a suppression hearing at which la w enforcement officers testified to the events in question. The partie s divided Feltrop's inc riminating statements into three categories: first, a statement that he t ried to take a knife from Roam's hands, which caused the officers to interrupt the interview and give Feltrop Miranda warnings; second, his subsequen t description of the killing and dismembering, after which he led police to the secluded farm pond where he had disposed o f Roam's head, hands, and feet; and third, a videotaped confession Feltrop gave after returning from the farm pond. The trial court admitted th e first s tatement because it was non-custodial, admitted the subsequen t statements because th ey were made voluntarily following Miranda warnings, but suppressed those portions of the videotaped confession that followed Feltrop's request that a lawyer be present. At trial, Feltrop renewed his motion to suppress al l his statements, based upon the officers' trial and suppres sion hearing testimony. The trial court denied that motion, an d 1 the Missouri Supreme Court affirmed.

### Congress strengthened the presumption of correctness in 2 

### Title I, § 104, of the Anti-Terrorism and Effective Death Penalty Act of 1996. See Pub. L. No. 104-132, tit. I, sec. 104(3)-(4), 110 Stat. 1214, 1219, to be codified at 28 U.S.C. § 2254(d)-(e). Even if this new statute governs this pending case, as Title I, § 107(c), might suggest, it does not affect our determination of the "in custody" question of law that the Supreme Court has remanded. -3- B. The Re levant Custody Facts. In conducting our de novo review of the custody issue, the first task is to determine the factual circumstance s surrounding the questioning -- to set the scene and reconstruct th e players' lines and actions. "State-court findings on these scene- an d acti on-setting questions attract a presumption of correctness under 2 8 U. S.C. § 2254(d)." Thompson , 116 S. Ct. at 465. When the state tria l 2 court has conducted a n adequate factual inquiry but has not made specific fact findings, as in this case, we apply the pre sumption of correctness to the Missouri Supreme Court's reconstruction of the events in question. Se e Sumner v. Mata , 449 U.S. 539, 547 (1981).
On March 16, 1987, shortly after a dismembered female torso was found in St. Charles County , Feltrop visited the Sheriff's Department in nearby Jeffers onCounty, where he and Roam resided, and reported to Sergean t Speidel th at Roam had been missing for a week. One week later, Sgt

. Speidel decided that the torso found in St. Charles County could fit the missing person description of Roam, and that a police composite of a man seen near the torso's site resembled Feltrop. The Missouri Supreme Court described the subsequent events as follows:

The record s hows that late in the afternoon on March 23, 1987, Sgt. Speidel contacted the St. Charles County Sheriff's Department, who asked him to arrange an interview wit h [Feltr op]. After contacting [Feltrop], Sgt. Speidel went t o [Feltrop's] house. [Feltrop] then followed Sgt. Sp eidel to the station. Sgt. Speidel and [Feltrop] arrived at approximately 8:30 p.m., and [Feltrop] waited in the watch comman der's office until the St. Charles of ficers arrived between 10:30 and 11:30 p.m. Sheriff Eubinger and Sgt. Kaiser questioned

### -4- [Feltrop] from 11:45 p.m. to 1:10 a. m. The officers asked [Feltrop] about his relationship with the vict im, why he reported her missing, and where he thought she might be. During this time [Feltrop ] seemed tired and emotional, and cried periodically. Finally, th e officers asked [Feltrop] whether he was a Christian and whether h e would tel l the truth. [Feltrop] then told the officers that he had "tried to take the knife away." At that time [he] became a suspect and wa s read his Miranda rights, which he waived. Questionin g resumed

. [Feltrop] related his version of the events. He claime d he killed Roam in self-defense. Lat er [Feltrop] led the officers to the remaining body parts. Using this information, the officer s obtained a warrant to search [Feltrop's] home and seized evidenc e found therein.
* * * * * [The questioning] officers engaged in no coercive conduct

. Theymade no promises or threats. [Feltrop] was given drinks and opportunities to use the restroom and to take breaks

. Alt houghthe room in which [he] was interviewed was small , there is no indication that [Feltrop] was psychologically o r otherwise coerced as a result of being in close quarters.
* * * * * [Feltrop] voluntarily followed Sgt. Speidel to the station. At all times prior to his making the incriminating sta tement, [he] was free to depart.

803 S.W.2d at 12-13. We have carefully reviewed the state court record an d conclude that these f acts must be presumed correct. We note that Feltrop did not se ek an evidentiary hearing in federal court to revisit thes e events.

C. The Cu stody Question of Law. Feltrop made the statement that he "tried to take the knife away" from Roam before he was given Mirand a warnings. That statement is inadmissible if he was in custody at the time he made it, because Miranda warnings must be given "where there has been sucha restriction on a person's freedom as to render him 'in custody.'" Oregon v. Mathiason , 429

### -5-

U.S. 492, 495 (1977). Whether Feltrop was "in custody" is determined by
an objective test -- viewing the totality of the circumstances, would a reason able person in Feltrop's position have considered his freedom o f action res tricted to the degree associated with a formal arrest. Se e Thompson , 116 S. Ct. at 465-66 & n.13; California v. Beheler , 463 U.S

. 1121, 1125 (1983). That the questioning takes place in a police station is relevant but not controlling. Mathiason , 429 U.S. at 495. Moreover, the subjective undisclosedbeliefs of Feltrop an d the questioning officers regarding custody are irrelevant. See Stansbury v. California , 114 S. Ct. 1526, 1529 (1994). Thompsonrequires us to apply this objective test de
novo to the facts found by the state courts.
Feltrop came voluntarily to the Jefferson County police station t o be interviewed by the St. Charles County investi gators. For the first two hours a fter he arrived, Feltrop waited in the small watch commander' s off ice with Sgt. Speidel, while Speidel attended to his unrelated watc h commander's duties. Speidel testified at trial:
Q Was [Feltrop] able to walk freely around the office?
A No. We have restricted areas in the office. But, he wa s free to move. If he wanted to leave, he could have.
(Emphasis added.) Sp eidel did not question Feltrop. This portion of the time Feltrop spent at the station was clearly non-custodial.

Whe nthe St. Charles County investigators arrived, Sgt. Speide l all owed them to interview Feltrop in the watch commander's office whil e Speide l worked elsewhere in the station. Two investigators interviewe d Fel trop in the small office while two others listened to the wire d conversation in anoth er room. When the interview began, the female torso discovered in St. Charles

### As the Missouri Supreme Court noted, Feltrop's conduct 3 

### later that night suggested that he did not consider the interview custodial: "after [Feltrop] confessed, he apparently assumed he was free to go; he asked to drive his own vehicle to the discovery site of the body parts so that he could later return home in time to go to work." 803 S.W.2d at 13. Cf. United States v. Klein , 13 F.3d 1182, 1184 (8th Cir.), cert. denied , 114 S. Ct. 2722 (1994). -6- County had not been identified. Feltrop had reported Roam missing, and on e week later Sgt. Speidel asked if Feltrop would meet with the St. Charles Countyinvestigators. During the interview, Feltrop was emotional about his m issing girlfriend, but that alone would not establish that he wa s concealing guilt. Thus, the setting is entirely consistent with a non

custodial interview of someone who may be able to shed light on an unsolve d crime but may not be subjected to the restrictions of a formal arrest

. True, the interview questions were designed to elicit incriminatin g respons es if Feltrop were guilty, but he was free to leave at all time s prior to his incriminating statement, and he was treated with th e consideration due one who has volunteered to be interviewed, the "kind of lati tude [that] is clearly inconsistent with custodial interrogation. " United States v. Jorgensen , 871 F.2d 725, 729 (8th Cir. 1989).
It is easy to say in hindsight that Feltrop was an obvious target of the investigation. But until he made an incriminating statement about 1 1/2 hours into the interview, there was no probable cause to arrest him, and the investigators had not curtailed his freedom of action to a degree associatedwith formal arrest. When Feltrop made that first obscure but 3 clearly incriminatingstatement -- he "tried to take the knife away" from Roam-- the investigators immediately gave him Miranda warnings and a len gthybreak in the questioning. In these circumstances, although th e issue is close, we conclude that Feltrop was not "in custody" prior t o receiving those warnings.

### -7- D. The Harmless Error Question. Feltrop not only argues that hi s first incriminating statement is inadmissible, but he also asserts that hi s later confession must be suppressed as the taint ed fruit of that poisonous tree. We disagree. In Oregon v. Elstad , 470 U.S. 298, 309 (1985), th e Supreme Court held, "Though Miranda requires that the unwarned admission must b e suppressed, the admissibility of any subsequent statement [mad e after Miranda warnings are given] should turn . . . solely on whether it is knowingly and voluntarily made." Feltrop's subsequent description of the killing and his decision to lead police to the remainder of Roam's body "were not the product of unconstitutional coercion." 46 F.3d at 772

. Those statements and conduct are admissible and were infinitely mor e incriminating than his initial incriminating statement. Therefore, an y Mir anda error in admitting that initial statement was harmless beyond a reasonable doubt. See United States v. Robinson , 20 F.3d 320, 322-23 (8th Cir. 1994).
For the foregoing reasons, we reinst ate our prior decision affirming the d istrict court's denial of Feltrop's petition for a writ of habea s corpus.
HEANEY, Circuit Judge, dissenting.

It is cl ear that I conceded too much in my original dissent. I agreed with the original majority that the state court's finding tha t Feltrop was not in cu stody when he made his first incriminating statement
was entitled to a presumption of correctness. Now, in light of the Suprem e Court's recent holdin g that this "ultimate 'in custody' determination" is subject t o de novo review, Thompson v. Keohane , 116 S. Ct. 457, 46 5 (1995) , I even more resolutely believe that police obtained Feltrop' s initial statement in violation of his Mirandari ghts. In my view, we must
reverse the United States District Court and direct that court to remand to the state court with directions to release Fe ltrop or to give him a new trial within a reasonable period of time.

### -8- In this case, the presumption of correctness with respect to th e state court's determination of the factual circumstances is overcome by th e state cour t's omission of undisputed, relevant facts. While I do no t quarrel with--and presume correct--the facts set out by the state court, the fac ts which are not set out by the state court cause me significan t trouble. Therefore, unlike the majority, I do not believe we can properl y meet our obligation t o conduct an independent review of the circumstances of Feltrop's interrogation by simply relying on the factual statement as provided by the state court.
In my vie w, the essential, undisputed missing facts are as follows:
1. Serge ant Speidel suspected that Feltrop was involved in Barbara Roam' s death when he contacted Feltrop for questioning. (Trial Tr. a t 124.) The Missouri Supreme Court was either spe aking hyper-technically or simply wrong in stating that Feltrop only became a suspect after he offere d his initial admissionthat a struggle occurred between he and the victim. See State v. Feltrop , 803 S.W.2d 1, 12 (Mo.), cert. denied , 501 U.S. 1262 (1991). It is undisputed that Sergeant Speidel connected Feltrop, who had recent lyreported his girlfriend missing to Sergeant Speidel, with a compo site drawing of a person seen near the site where an unidentifie d torso was discovered in St. Charles County. (Tr ial Tr. at 998-1001, 1004, 1019.) Sergeant Speidel even testified that he suspected Feltrop committe d a crime related to his girlfriend's disappearance.

2. Serge ant Speidel reported his suspicions to the St. Charle s Sher iff's Department, who asked him to contact Feltrop and arrange a meeting between their investigators and Feltrop. ( Id. at 1005.) Sergean t Speidel we nt to Feltrop's home several times, but could not find him

. ( Id. ) He then left his business card with a nei ghbor, asking that Feltrop call him. ( Id. at 1007.) Later that

### -9-

night, Sergeant Speidel returned to Feltrop's home and told him that the only way he could obt ain any information about his missing girlfriend was if he went with Sergeant Speidel to the police station that night. ( Id. at 1021-22 ). Feltrop drove his car to the Jefferson County Sheriff' s Department, escorted by Sergeant Speidel. ( Id. at 1022).

3. When Feltrop arrived at the Jefferson County Sheriff' s Department, he was placed in a small, nine-foot- by-nine-foot room and kept there for at least two hours until the St. Charles County investigator s arrived. (Trial Tr. 125-26). During this time, he was never told he was free to leave.

4. T he interview lasted from approximately 11:45 p.m. until 1:1 0
a.m. or 1:20 a.m. Near the end of the interview, Kaiser, a St. Charle s County investigator, told Feltrop that he was pretty sure the severed tors o that had been found in St. Charles County was Roam and he wanted to know how the torso got there. (Trial Tr. at 1048-50).

In ad dition to omitting essential facts, the majorit y mischar acterizes several conclusions of the Missouri Supreme Court a s factual findings. Fo r example, the state court's determinations that (1) Feltrop voluntarily followed Sergeant Speidel to the station and (2) he wa s free to leave at all times prior to making the i ncriminating statement are conclusions, not findings of fact. The findings go well beyond "basic , primar y, or historical . . . recital of external events and th e credibility of their narrators." See Thompson , 1 16 S. Ct. at 464 (internal quotat ions omitted). The state court's ultimate conclusions are no t entitled to a presump tion of correctness and we must review them de novo.
When all relevant facts are considered and when the legal concl usions of the state court are set aside, it becomes apparent that no reasonable person in Feltrop's position would have believed

### -10-

that h e was free to leave and that his Miranda rights were violated

. Therefore, I respectfully dissent.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.