                                   ___________

                                   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 murdering
and dismembering his live-in girlfriend, Barbara Ann Roam.       The Missouri
Supreme Court affirmed the conviction and death sentence, and the denial
of Feltrop'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 rights
under Miranda v. Arizona, 384 U.S. 436 (1966), we gave deference to the
state court determination that he was not "in custody" prior to receiving
Miranda warnings, consistent with prior Eighth Circuit cases construing 28
U.S.C. § 2254(d) (1994).      46 F.3d at 773.       The Supreme Court granted
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
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 issue
de novo.    We again conclude that Feltrop is not entitled to federal habeas
corpus relief.


     A. The Incriminating Statements.      Prior to trial, Feltrop moved to
suppress incriminating statements he made to police on the night of March
23, 1987.     The trial court held a suppression hearing at which law
enforcement officers testified to the events in question.       The parties
divided Feltrop's incriminating statements into three categories:     first,
a statement that he tried to take a knife from Roam's hands, which caused
the officers to interrupt the interview and give Feltrop Miranda warnings;
second, his subsequent description of the killing and dismembering, after
which he led police to the secluded farm pond where he had disposed of
Roam's head, hands, and feet; and third, a videotaped confession Feltrop
gave after returning from the farm pond.      The trial court admitted the
first statement because it was non-custodial, admitted the subsequent
statements because they 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 all his statements, based upon the officers' trial and
suppression hearing testimony.1    The trial court denied that motion, and
the Missouri Supreme Court affirmed.




     1
      Though he testified on another subject at the omnibus
motion hearing, Feltrop did not testify concerning Miranda issues
at that hearing or at trial. He did testify at the state post-
conviction 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 be
taken up on direct appeal. Although Feltrop has cited his post-
conviction 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-
     B. The Relevant Custody Facts.   In conducting our de novo review of
the custody issue, the first task is to determine the factual circumstances
surrounding the questioning -- to set the scene and reconstruct the
players' lines and actions.    "State-court findings on these scene- and
action-setting questions attract a presumption of correctness under 28
U.S.C. § 2254(d)."   Thompson, 116 S. Ct. at 465.2   When the state trial
court has conducted an adequate factual inquiry but has not made specific
fact findings, as in this case, we apply the presumption of correctness to
the Missouri Supreme Court's reconstruction of the events in question.   See
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
Jefferson County, where he and Roam resided, and reported to Sergeant
Speidel that 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 shows 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 with
     [Feltrop]. After contacting [Feltrop], Sgt. Speidel went to
     [Feltrop's] house. [Feltrop] then followed Sgt. Speidel to the
     station. Sgt. Speidel and [Feltrop] arrived at approximately
     8:30 p.m., and [Feltrop] waited in the watch commander's office
     until the St. Charles officers arrived between 10:30 and 11:30
     p.m. Sheriff Eubinger and Sgt. Kaiser questioned




     2
      Congress strengthened the presumption of correctness in
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-
     [Feltrop] from 11:45 p.m. to 1:10 a.m. The officers asked [Feltrop]
     about his relationship with the victim, why he reported her missing,
     and where he thought she might be.       During this time [Feltrop]
     seemed tired and emotional, and cried periodically. Finally, the
     officers asked [Feltrop] whether he was a Christian and whether he
     would tell the truth. [Feltrop] then told the officers that he had
     "tried to take the knife away." At that time [he] became a suspect
     and was read his Miranda rights, which he waived.        Questioning
     resumed. [Feltrop] related his version of the events. He claimed
     he killed Roam in self-defense. Later [Feltrop] led the officers to
     the remaining body parts.     Using this information, the officers
     obtained a warrant to search [Feltrop's] home and seized evidence
     found therein.

                             *   *    *     *   *

     [The questioning] officers engaged in no coercive conduct.
     They made no promises or threats. [Feltrop] was given drinks
     and opportunities to use the restroom and to take breaks.
     Although the room in which [he] was interviewed was small,
     there is no indication that [Feltrop] was psychologically or
     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 statement, [he]
     was free to depart.


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


     C. The Custody Question of Law.       Feltrop made the statement that he
"tried to take the knife away" from Roam before he was given Miranda
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
such a restriction on a person's freedom as to render him 'in custody.'"
Oregon v. Mathiason, 429




                                     -4-
U.S. 492, 495 (1977).    Whether Feltrop was "in custody" is determined by
an objective test -- viewing the totality of the circumstances, would a
reasonable person in Feltrop's position have considered his freedom of
action restricted to the degree associated with a formal arrest.         See
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 undisclosed beliefs of Feltrop and the questioning officers
regarding custody are irrelevant.   See Stansbury v. California, 114 S. Ct.
1526, 1529 (1994).    Thompson requires 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 to
be interviewed by the St. Charles County investigators.    For the first two
hours after he arrived, Feltrop waited in the small watch commander's
office with Sgt. Speidel, while Speidel attended to his unrelated watch
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 was
     free to move. If he wanted to leave, he could have.


(Emphasis added.)    Speidel did not question Feltrop.    This portion of the
time Feltrop spent at the station was clearly non-custodial.


     When the St. Charles County investigators arrived, Sgt. Speidel
allowed them to interview Feltrop in the watch commander's office while
Speidel worked elsewhere in the station.     Two investigators interviewed
Feltrop in the small office while two others listened to the wired
conversation in another room.   When the interview began, the female torso
discovered in St. Charles




                                     -5-
County had not been identified.         Feltrop had reported Roam missing, and one
week later Sgt. Speidel asked if Feltrop would meet with the St. Charles
County investigators.         During the interview, Feltrop was emotional about
his missing girlfriend, but that alone would not establish that he was
concealing guilt.          Thus, the setting is entirely consistent with a non-
custodial interview of someone who may be able to shed light on an unsolved
crime but may not be subjected to the restrictions of a formal arrest.
True,       the interview questions were designed to elicit incriminating
responses if Feltrop were guilty, but he was free to leave at all times
prior       to   his   incriminating   statement,   and   he   was   treated   with   the
consideration due one who has volunteered to be interviewed, the "kind of
latitude [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
associated with formal arrest.3          When Feltrop made that first obscure but
clearly incriminating statement -- he "tried to take the knife away" from
Roam -- the investigators immediately gave him Miranda warnings and a
lengthy break in the questioning.           In these circumstances, although the
issue is close, we conclude that Feltrop was not "in custody" prior to
receiving those warnings.




        3
      As the Missouri Supreme Court noted, Feltrop's conduct
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-
        D. The Harmless Error Question.     Feltrop not only argues that his
first incriminating statement is inadmissible, but he also asserts that his
later confession must be suppressed as the tainted fruit of that poisonous
tree.     We disagree.   In Oregon v. Elstad, 470 U.S. 298, 309 (1985), the
Supreme Court held, "Though Miranda requires that the unwarned admission
must be suppressed, the admissibility of any subsequent statement [made
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 more
incriminating than his initial incriminating statement.        Therefore, any
Miranda 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 reinstate our prior decision affirming
the district court's denial of Feltrop's petition for a writ of habeas
corpus.


HEANEY, Circuit Judge, dissenting.


        It is clear that I conceded too much in my original dissent.        I
agreed with the original majority that the state court's finding that
Feltrop was not in custody when he made his first incriminating statement
was entitled to a presumption of correctness.     Now, in light of the Supreme
Court's recent holding that this "ultimate 'in custody' determination" is
subject to de novo review, Thompson v. Keohane, 116 S. Ct. 457, 465
(1995), I even more resolutely believe that police obtained Feltrop's
initial statement in violation of his Miranda rights.     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 Feltrop or to give him a new
trial within a reasonable period of time.




                                     -7-
        In this case, the presumption of correctness with respect to the
state court's determination of the factual circumstances is overcome by the
state court's omission of undisputed, relevant facts.           While I do not
quarrel with--and presume correct--the facts set out by the state court,
the facts which are not set out by the state court cause me significant
trouble.       Therefore, unlike the majority, I do not believe we can properly
meet our obligation to 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 view, the essential, undisputed missing facts are as follows:


        1.    Sergeant Speidel suspected that Feltrop was involved in Barbara
Roam's death when he contacted Feltrop for questioning.           (Trial Tr. at
124.)    The Missouri Supreme Court was either speaking hyper-technically or
simply wrong in stating that Feltrop only became a suspect after he offered
his initial admission that 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
recently reported his girlfriend missing to Sergeant Speidel, with a
composite drawing of a person seen near the site where an unidentified
torso was discovered in St. Charles County.       (Trial Tr. at 998-1001, 1004,
1019.)       Sergeant Speidel even testified that he suspected Feltrop committed
a crime related to his girlfriend's disappearance.


        2.     Sergeant Speidel reported his suspicions to the St. Charles
Sheriff's Department, who asked him to contact Feltrop and arrange a
meeting between their investigators and Feltrop.      (Id. at 1005.)   Sergeant
Speidel went to Feltrop's home several times, but could not find him.
(Id.)    He then left his business card with a neighbor, asking that Feltrop
call him.       (Id. at 1007.)   Later that




                                        -8-
night, Sergeant Speidel returned to Feltrop's home and told him that the
only way he could obtain 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 investigators
arrived.   (Trial Tr. 125-26).        During this time, he was never told he was
free to leave.


     4.        The interview lasted from approximately 11:45 p.m. until 1:10
a.m. or 1:20 a.m.         Near the end of the interview, Kaiser, a St. Charles
County investigator, told Feltrop that he was pretty sure the severed torso
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        addition     to    omitting         essential     facts,      the    majority
mischaracterizes several conclusions of the Missouri Supreme Court as
factual findings.       For example, the state court's determinations that (1)
Feltrop voluntarily followed Sergeant Speidel to the station and (2) he was
free to leave at all times prior to making the incriminating statement are
conclusions, not findings of fact.             The findings go well beyond "basic,
primary    ,    or   historical   .   .   .   recital     of   external    events    and   the
credibility of their narrators." See Thompson, 116 S. Ct. at 464 (internal
quotations omitted).         The state court's ultimate conclusions are not
entitled to a presumption of correctness and we must review them de novo.


     When all relevant facts are considered and when the legal conclusions
of the state court are set aside, it becomes apparent that no reasonable
person in Feltrop's position would have believed




                                              -9-
that he 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.




                                 -10-
