Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION GRANTING APPROPRIATE FEDERAL HABEAS RELIEF JOHN W. OLIVER, Chief Judge. I. This State prisoner federal habeas corpus case separately presents a Sixth Amendment assistance of counsel question and a Miranda question. The State trial court, although afforded three separate opportunities to rule both questions in accordance with controlling federal law, decided both questions adversely to the petitioner. The Missouri Court of Appeals, Kansas City District, found it necessary on direct appeal to reach only the Sixth Amendment question. That court, after reliably finding the undisputed facts and properly applying controlling principles of federal constitutional law, reversed petitioner’s conviction and remanded the case for new trial. The Supreme Court of Missouri, however, on application of the Attorney General, ordered the case transferred to that court. In a divided opinion, a majority of the Supreme Court of Missouri refused to consider the merits of either of the two federal constitutional questions presented and affirmed petitioner’s conviction. State v. To-liver, 544 S.W.2d 565 (Mo. banc 1976). Two judges of that court filed separate dissenting opinions based on the Miranda ground in which each stated their agreement with the result of the Missouri Court of Appeals decision reversing and remanding the case for a new trial. For reasons that must be stated in detail, we find and conclude that both the Sixth Amendment question and the Miranda question are properly before this Court for determination and that both questions should be decided on their respective merits. II. The Sixth Amendment and Miranda questions were created by the failure of an experienced Kansas City police officer to preface his interrogation of the petitioner, who at the time was a defendant represented by counsel in a pending criminal case, either with any of the required Miranda warnings or with even a superficial attempt to obtain a waiver of petitioner’s Sixth Amendment right to the assistance of counsel. The State prosecutor, with full knowledge of those circumstances, elected to use at trial the oral statements allegedly made to the police officer. The case is here because a majority of the Missouri Supreme Court, after ordering transfer from the Missouri Court of Appeals, refused to consider the merits of either of the federal constitutional questions presented. The following factual circumstances are not in dispute. Petitioner was convicted in the Circuit Court of Johnson County, Missouri, of stealing guns from a Warrensburg discount store on September 13, 1973. It is undisputed that petitioner was in the store with Richard Lee Stevenson at the time a theft of guns occurred. The majority opinion of the Supreme Court of Missouri reliably found the following facts concerning subsequent events: The two men left the store together and drove away in an automobile, which was later stopped by a state trooper who was reacting to a police radio bulletin concerning the alleged theft. Defendant had been driving about 80 m. p. h. with Stevenson and a man named Garner as passengers. After placing defendant under arrest for speeding and investigation of stealing over $50, the trooper gave defendant his “Miranda warnings,” although defendant assured the trooper it was unnecessary to do so, because he had done nothing wrong. A search of the car and its occupants produced no handguns. The group was taken to patrol headquarters in Lee’s Summit to be held for Warrensburg police, who were investigating the theft. At headquarters, Miranda warnings were read again and defendant was questioned about the theft. He denied the theft, saying he entered WalMart to look for camping materials and had left when he could not find what he desired. When later taken to Warrens-burg police headquarters, two more questioning episodes ensued preceded by Miranda warnings each time, but defendant made no statement. The three men were detained in the Johnson county jail over night .... [544 S.W.2d at 567-68]. The next day, petitioner and his companions were released. No formal charges were filed against them until later in the day on September 14, 1973. At that time, and after formal charges had been filed, a warrant was issued for the arrest of Richard Lee Stevenson and petitioner for stealing over $50. Petitioner and Stevenson returned to Warrensburg upon learning of the outstanding warrant and turned themselves in. Both were fingerprinted, photographed, arraigned on the pending charges, and released on bond. It is stipulated that approximately nine weeks later petitioner and Stevenson were again questioned by police officers. The subsequent interrogation, which is the interrogation involved in this case, was conducted by the “Metro Squad,” a group of officers drawn from various police agencies in the Kansas City Metropolitan Area to investigate major crimes. It is further stipulated that the Metro Squad, sometimes referred to as the “Kansas City police” was investigating a homicide at the time of the interviews of Stevenson and petitioner. It is clear from the record that petitioner was questioned by the Kansas City police because they had information that the homicide being investigated “had been committed with a handgun having the same serial number as one of those guns stolen from the [Warrensburg discount] store.” 544 S.W.2d at 568. Stevenson, petitioner’s co-defendant in the pending Johnson County case, was questioned after he had been given Miranda warnings on November 21, 1973, by Detective Watson and another officer of the Kansas City, Missouri, Police Department. Stevenson’s written statement (Ex. D, attached to the stipulation) incriminated himself and petitioner. The next day, on November 22, 1973, in possession of Stevenson’s statement and reports from the Warrensburg police department concerning the theft, Detective Watson “was requested by Major Hatfield to go to Raymond’s house to see if he would come down and we could interview him.” [Tr. 45], The only State judge to make any findings of fact concerning this questioning was Chief Justice Seiler in his dissenting opinion in the Missouri Supreme Court. In the absence of any relevant findings in the majority opinion of the Supreme Court of Missouri in regard to petitioner’s interrogation by the Kansas City police, we have carefully reviewed the State trial proceedings and find that the following findings of Chief Justice Seiler are accurate and reliable: In the case before us, two officers, who knew that the appellant was charged with the theft of a gun which they had in their possession as the murder weapon in a homicide they were investigating, drove to appellant’s residence in an unmarked state highway patrol car. According to their own testimony, upon arriving at appellant’s residence, they got out of the car went up to the house, pounded repeatedly on the door, “I really whammed it,” and yelled for appellant to come out. The officers then placed appellant in the front seat of the car with one of the officers and a companion of appellant [Garner] in the back seat with another officer. The two were driven downtown to police headquarters, separated from one another, and the appellant was questioned for one hour with three officers present. [544 S.W.2d at 570 (Seiler, C. J., dissenting)] The State concedes that petitioner was not informed of his Miranda rights before he was questioned by the Kansas City police on November 22, 1973. The State does not contend, and there is no evidence to support any finding, that petitioner waived his Sixth Amendment right to the assistance of counsel. Detective Watson testified at trial that during the “interview” petitioner orally admitted stealing the guns from the Warrensburg store and selling them to a black man for some dope. [Tr. 202]. We now turn to the factual circumstances in regard to the manner petitioner’s federal claims were presented to the State trial judge. Petitioner filed a pretrial motion to suppress the Kansas City police officer’s testimony about the incriminating oral statements allegedly made by petitioner on November 22, 1973. That motion alleged in its first paragraph that “the statement was obtained in violation of defendant’s . right to counsel as guaranteed by the . Sixth and Fourteenth Amendments to the United States Constitution.” [Tr. 17]. The third paragraph of that motion alleged that the “statement was made without counsel present, and without adequate warnings of his rights as set forth by the Supreme Court of the United States of America in Miranda v. Arizona [384 U.S. 436] 86 S.Ct. 1602 [16 L.Ed.2d 694].” [Tr. 18]. Immediately prior to trial on December 4, 1974, four police officers testified at a plenary evidentiary hearing on the motion to suppress [Tr. 27— 62]. Petitioner did not testify. At the close of that hearing, the State trial judge denied the motion to suppress with the following conclusory statement: The Defendant had received the warning four times. Whether this was a custodial or noncustodial interrogation, I don’t think there’s any question but what he had previously been apprised of what his rights were. I don’t think it’s necessary that the Police every time they question him, they give him the warnings. The Court certainly feels that the further interrogation and investigation was not a custodial interrogation. [Tr. 62]. After the trial judge ruled the motion to suppress and after other pretrial discussion the trial commenced. The State’s last trial witness, Detective Maurice Watson of the Kansas City Police Department, testified late the same afternoon. He testified without additional objection that petitioner had orally admitted the theft to him, statements which petitioner previously and unsuccessfully had moved to suppress. [Tr. 202]. No written statement was offered. Petitioner’s counsel cross-examined Detective Watson, the State rested, and Court recessed for the evening. The next morning petitioner’s counsel appeared at the Court’s chambers before trial was scheduled to resume. He promptly moved to strike Detective Watson’s testimony and to instruct the jury to disregard that testimony “for all the reasons assigned in the motion to suppress.” [Tr. 211-12]. That motion was denied: Well, the motion will be overruled on two bases. Number One, the Court feels that there is a proper foundation for the admission of the statement and that the — ■ [Brief interruption while Judge answers phone.] First, that the interrogation was not a custodial interrogation. Secondly, that the defendant had been adequately warned previously concerning his rights in the matter. And secondly [sic], that the objection is untimely. It comes after the testimony has been admitted. [Tr. 212], Petitioner offered no evidence at trial and was convicted on December 5, 1974. [Tr. 258]. Petitioner’s counsel assigned the denial of the motion to suppress and the admission of the allegedly tainted testimony as error in a post-trial alternative motion to set aside the verdict or for new trial [Tr. 250]. On April 1, 1975, petitioner was sentenced to ten years in prison. The proceedings on appeal have been stated above. III. Although the Attorney General recognized that the Missouri Court of Appeals reversed and remanded this case for a new trial on Sixth Amendment grounds, he contends that the theory upon which that court based its reversal “really doesn’t carry forward in this proceeding.” He further contends that petitioner’s reliance in this Court upon the Sixth Amendment right to counsel articulated in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), “boarders [sic] on the frivoilous [sic].” We disagree. A. The Attorney General’s arguments, which include an assertion that reliance on the Sixth Amendment in general, and on Massiah in particular, “is presented for the first time” in this Court, ignore the fact that the Missouri Court of Appeals expressly based its reversal of petitioner’s conviction on principles articulated in Massiah as properly stated and applied by the Supreme Court of Missouri in 1967. The Missouri Court of Appeals concluded that this case was controlled by principles stated by the Supreme Court of Missouri in State v. Witt, 422 S.W.2d 304 (Mo.1967). Witt involved the admissibility of a defendant’s oral statements made to police officers and a prosecuting attorney after the defendant “had been formally charged in magistrate court.” Id. at 307. The interrogation took place after the defendant “or someone for him had employed counsel and defendant and counsel together with the prosecuting attorney had met in magistrate court and agreed upon a future date, 3 days away, for preliminary hearing.” Id. at 307-08. In that case, as in this case, there was no claim, and no evidence to support a claim, that the defendant had waived his Sixth Amendment right to the assistance of counsel. The Supreme Court of Missouri cited and properly applied Massiah to the factual circumstances presented and accordingly reversed the judgment of conviction and remanded the case for a new trial. In its opinion in this case, the Missouri Court of Appeals recognized that “although defendant has failed to properly preserve this claim of error, it is necessary to examine this contention under the Plain Error Rule 27.20(c) since a constitutionally protected right is involved. State v. Henderson, 510 S.W.2d 813 (Mo.App.1974).” Court of Appeals Opinion at 610. Thus reaching the merits of the Sixth Amendment question the Missouri Court of Appeals reliably found that “Detective Watson knew the defendant was charged in Johnson County, Missouri [and was on bond],” id. at 611, and that “[t]here was no evidence [that] the defendant in any way knowingly and voluntarily waived his right to have his counsel present or notified.” Id. at 611. It therefore concluded that “[absent any effort on the part of Detective Watson to determine if defendant had counsel, and absent any evidence of any waiver on the part of defendant to have counsel notified or present, the rule in Witt will be applied.” Id. at 611. On the facts, the Missouri Court of Appeals reliably found that the Kansas City police “failed to take either step,” properly concluded that “the statement was inadmissible under the holding [of] Witt,” id., and reversed and remanded the case for a new trial.” It is difficult to understand the nature of the argument the Attorney General attempts to make when he states that the Sixth Amendment question is presented “for the first time” in this Court and that the theory upon which the Court of Appeals decided the case “really doesn’t carry forward in this [federal habeas] proceeding.” Examination of the Attorney General’s response to this Court’s order to show cause suggests that the Attorney General may be attempting to make some sort of an exhaustion argument based upon language in Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Assuming the language used by the Attorney General in his brief in this Court is broad enough to include an exhaustion argument, we reject that argument for reasons most recently stated by our Court of Appeals in Harkins v. Wyrick, 589 F.2d 387 (8th Cir. 1979), and by this Court in Martin v. Wyrick, 423 F.Supp. 884 (W.D.Mo.1976), supplemented 433 F.Supp. 921 (W.D.Mo. 1977), rev’d on other grounds, 568 F.2d 583 (8th Cir. 1978). Both those eases cite and apply the settled law which makes clear that Picard v. Connor — which states in the abstract that “the federal claim must be fairly presented to the state courts” — does not hold that the State court must decide the federal question before a federal district court may properly exercise habeas jurisdiction. Rather, the controlling exhaustion principle is whether the petitioner presented the state courts with a full and fair opportunity to decide and apply controlling federal law to the petitioner’s federal claims. The trial court papers in this case clearly show that petitioner’s motion to suppress was based upon the separate and alternative grounds that (a) petitioner’s Sixth Amendment rights had been violated and (b) that petitioner had not been given the required Miranda warnings. See paragraphs 1 and 3, respectively, of petitioner’s motion to suppress. [Tr. 18], Defense counsel’s cross-examination of Detective Watson in the hearing on the motion to suppress clearly informed the State trial judge that the grounds of petitioner’s motion were broader than a routine Miranda claim. Petitioner’s motion to strike Detective Watson’s testimony expressly advised the State trial judge that the motion should have been granted for “all the reasons assigned in the motion to suppress hereinbefore filed in this Court.” [Tr. 212]. Petitioner’s federal constitutional claims were stated in a like manner in petitioner’s alternative motion for new trial. [Tr. 251], It is therefore apparent that the State trial judge was presented with an opportunity to rule the Sixth Amendment question on three separate occasions and that his attention was directed to that question on other occasions on the day Detective Watson testified at trial. The fact that the single appellate brief filed on petitioner’s behalf — filed in the Missouri Court of Appeals — placed principal reliance on Miranda rather than the rationale of Massiah is neither material nor controlling. The material fact is that the Missouri Court of Appeals did consider and decide the Sixth Amendment question presented to and decided by the State trial judge. What may have prompted the Missouri Court of Appeals to consider that question is quite immaterial because it is clear in this case, as it was clear in Harkins v. Wyrick, that petitioner’s trial papers “squarely presented” the State trial court with the Sixth Amendment question. Thus petitioner “provided the State courts with ample opportunity to review the application [of the Sixth Amendment] to the facts of his case.” 589 F.2d at 390-91 (footnote omitted). In addition, the State court record shows that the Attorney General argued the merits of the Sixth Amendment question in both his alternative motion for rehearing or for transfer filed in the Court of Appeals and in his application for transfer and his later brief on the merits filed in the Supreme Court of Missouri. Therefore, it is clear that the Massiah question was fairly and adequately presented for decision on the merits in the State trial court, the Missouri Court of Appeals and the Supreme Court of Missouri. The Supreme Court of Missouri had a full and fair opportunity to decide whether the admission of petitioner’s statements violated his Sixth Amendment rights, and accordingly we find and conclude that this issue is exhausted. Finally, we are convinced that an independent and alternative principle of exhaustion should be recognized and applied in this case. In Rice v. Wolff, 513 F.2d 1280, 1290 (8th Cir. 1975), rev’d on other grounds sub nom. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), Judge Matthes concluded that “to send the petitioner back to the state courts over two years after the filing of his federal habeas motion, to assert a question which the State Supreme Court previously had before it is manifestly unreasonable and we do not believe that law requires such a result.” We are satisfied that the circumstances of this case, particularly as they relate to the inadequate manner in which petitioner was represented on appeal, reflect the sort of exceptional case in which federal habeas jurisdiction should be exercised even though it could be argued that petitioner may not have fully exhausted available State court remedies. We find and conclude for this separate and alternative reason that we are required to reach the merits of the Sixth Amendment question presented. B. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), decided after both the Missouri Court of Appeals and the Supreme Court of Missouri considered this case, confirms the validity of the Missouri Court of Appeals’ application of Massiah principles to this case. In Brewer v. Wil Hams, the District Court based its grant of federal habeas relief on three alternative and independent grounds. The Court of Appeals affirmed on two of those grounds. The Supreme Court, however, concluded that it needed to consider only the petitioner’s Sixth Amendment claim. “For it is clear,” said the Court, “that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a . . . constitutional right— the right to the assistance of counsel.” 430 U.S. at 397-98, 97 S.Ct. at 1239. The Court stated: Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him— “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, supra, [406 U.S. 682] at 689 [92 S.Ct. 1877, 1882, 32 L.Ed.2d 411] [430 U.S. at 398, 97 S.Ct. at 1239], On the facts the Supreme Court stated that “[t]here can be no doubt in the present ease that judicial proceedings had been initiated against Williams [because a] warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a Davenport courtroom, and he had been committed by the court to confinement in jail.” Id. at 399, 97 S.Ct. at 1239. The Court then concluded that “[t]he circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States, supra.” Id. at 400, 97 S.Ct. at 1240. It added: That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. See ibid.; McLeod v. Ohio, 381 U.S. 356 [85 S.Ct. 1556, 14 L.Ed.2d 682;] United States v. Crisp, 435 F.2d 354, 358 (C.A.7); United States ex rel. O’Connor v. New Jersey, 405 F.2d 632, 636 (C.A.3); Hancock v. White, 378 F.2d 479 (C.A.l). Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. [430 U.S. 400-01, 97 S.Ct. at 1240]. The Supreme Court then agreed with the conclusion of the District Court and the Court of Appeals “that the Iowa courts had ‘applied wrong constitutional standards’ in ruling that Williams had waived the protections that were his under the Constitution” 430 U.S. at 402, 97 S.Ct. at 1241. It then concluded that: The District Court and the Court of Appeals were also correct in their understanding of the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law — that it was incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. [458] at 464, [58 S.Ct. 1019, 1023, 82 L.Ed. 1461]. That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant, Carnley v. Cochran, 369 U.S. 506, 513 [82 S.Ct. 884, 888, 8 L.Ed.2d 70;] cf. Miranda v. Arizona, 384 U.S. at 471, [86 S.Ct. 1602, 1626, 16 L.Ed.2d 694,] and that courts indulge in every reasonable presumption against waiver, e. g., Brookhart v. Janis, supra, [384 U.S. 1] at 4 [86 S.Ct. 1245, 1246, 16 L.Ed.2d 314]; Glasser v. United States, 315 U.S. 60, 70 [62 S.Ct. 457, 464, 86 L.Ed. 680.] This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. Schneckloth v. Bustamonte, 412 U.S. 218, 238-240 [93 S.Ct. 2041, 2053-2054, 36 L.Ed.2d 854;] United States v. Wade, 388 U.S. [218] at 237 [87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149], [430 U.S. at 404, 97 S.Ct. at 1242]. The Court ruled that “the Court of Appeals was correct in holding that, judged by those standards, the record in this ease falls far short of sustaining petitioner’s burden,” id. and, after an analysis of the facts, added that “[t]he circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.” Id. at 405, 97 S.Ct. at 1243. However, the Court confirmed: The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not. [430 U.S. at 405-06, 97 S.Ct. at 1243 (emphasis in original)]. It is thus clear Brewer v. Williams reaffirmed and revitalized Massiah and that the Missouri Court of Appeals was therefore correct in applying State v. Witt, a direct progeny of Massiah, when it concluded that petitioner’s Sixth Amendment rights were violated. Under the undisputed factual circumstances of this case petitioner, who had been charged, arrested, and released on bond on the Warrensburg' charge, had a Sixth Amendment right to assistance of counsel at the time of his interrogation by the Kansas City police. Under Massiah and Brewer v. Williams, petitioner’s Sixth Amendment rights had attached before his interrogation and his inculpatory statements were inadmissible unless the State satisfied its “heavy burden” of demonstrating that the petitioner waived that right. In this case the State does not even claim, and there is no evidence whatsoever in the record to demonstrate that the petitioner waived his Sixth Amendment rights. It is apparent that petitioner is entitled to federal relief unless the arguments presented by the Attorney General to the Supreme Court of Missouri on the merits of the Sixth Amendment question have some validity. We find and conclude that they do not. C. The Attorney General summarized the four arguments presented to the Supreme Court of Missouri on the merits of the Sixth Amendment question by stating that in this case [1] “the questioning was in a non-custodial setting; [2] the appellant voluntarily answered questions; [3] was not questioned concerning the crime for which he had been arrested and charged by another prosecutor; and [4] there was no evidence that the Kansas City Police were aware that [counsel] had been appointed for the theft charge in Warrensburg.” See the Attorney General’s brief in the Supreme Court of Missouri, p. 13. The Attorney General’s first argument is that petitioner’s right to counsel was not violated because the interrogation was “non-custodial.” We disagree. Massiah itself establishes that whether the accused is in custody at the time of questioning is constitutionally irrelevant. The second argument, based on the factual assumption that the petitioner “voluntarily answered” questions — and therefore made a knowing and intelligent waiver of his right to counsel — fails as a matter of proof. As we have noted already, the record in this case is barren of any effort to prove that the defendant waived his Sixth Amendment rights and voluntarily answered the questions. The factual circumstances in this regard are comparable to those involved in Brewer v. Williams. The Attorney General’s third argument — that the petitioner “was not questioned concerning the crime for which he had been arrested and charged” — was considered and properly rejected in accordance with applicable controlling federal standards by the Missouri Court of Appeals. It is obvious that petitioner was being interrogated about a related offense. Indeed, the Attorney General admitted in his applieation to transfer the case to the Supreme Court of Missouri that the petitioner had been “formally charged with a related offense.” (Emphasis added). The Missouri Court of Appeals appropriately stated that “it is obvious that the sole reason for the interview with the defendant was because of his alleged connection with the theft of a gun which had been used in a homicide.” Court of Appeals Opinion at 611. The Missouri Court of Appeals rejected the argument that the principles of Massiah should not be applied because the interrogation was prompted “by another crime distinct from the offense for which the defendant was subsequently tried.” Id. The Missouri Court of Appeals properly concluded that: It is readily apparent, and was unquestionably clear to Detective Watson at the time, that any interrogation of the defendant would necessarily involve the details of how the defendant was connected with the gun taken in the theft and used in the homicide. Thus, Detective Watson knew any interview with the defendant would cover any and all connection the defendant had with the gun from the beginning of his connection to the end. This necessarily involved the crime for which defendant was later tried, and eliminated any distinction between this case and the Witt case based on any difference between the crime for which the defendant was tried and the subject crime on which interrogation took place. [Id.] That conclusion reflected a proper application of controlling federal constitutional principles. See United States v. Diggs, 497 F.2d 391 (2nd Cir. 1974), cert, denied, 419 U.S. 861, 95 S.Ct. 112, 42 L.Ed.2d 96 (1974). The Attorney General’s final argument, that “there was no evidence that the Kansas City Police were aware that petitioner had appointed counsel for the theft charge in Warrensburg,” is equally invalid. Knowledge of whether an accused has counsel after his constitutional right to assistance of counsel has attached is constitutionally irrelevant. Massiah and Brewer make clear that the Sixth Amendment question does not turn on whether the police officer knew the accused was represented by counsel, but rather on whether the accused’s constitutional right to the assistance of counsel had attached by reason of the stage of the criminal proceedings against him. 430 U.S. at 398, 97 S.Ct. 1232. We therefore conclude that none of the arguments presented by the Attorney General have any validity under the undisputed circumstances of this case. Finally because Brewer v. Williams cites State ex rel O’Connor v. State of New Jersey, 405 F.2d 632, 637 (3rd Cir. 1969), with approval, 430 U.S. at 401, 97 S.Ct. 1232, and because that case concluded that it was appropriate to make a Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), inquiry under the circumstances, we also reach the question of whether the erroneous admission of petitioner’s oral statements was harmless error. After our careful review of the complete trial transcript, including examination of all the evidence adduced and the arguments made by counsel to the jury we find and conclude that Detective Watson’s testimony relating the petitioner’s oral statement may have been the most critical factor in the jury’s finding of guilt. Where that possibility exists, the constitutional error in admitting that statement in evidence cannot be characterized as “harmless beyond a reasonable doubt” within the meaning of Chapman v. California. See also 544 S.W.2d at 571-72 (Seiler, C. J., dissenting); Court of Appeals Opinion at 612. For all the reasons stated, we find and conclude that petitioner is entitled to appropriate federal habeas corpus relief on the separate and independent ground that his Sixth Amendment right to the assistance of counsel was violated. We now turn to the other questions presented in this case. IV. A. The first point relied upon by the Attorney General in his brief in this Court is that the Miranda question “is not cognizable in this proceeding, because the petitioner’s failure to make a contemporaneous objection to the statement at the time it was introduced into evidence . . . constituted a ‘procedural default’ which precludes habeas corpus review.” The State argues that the Supreme Court held in Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 94 (1976), that “such a procedural default amounts to an adequate, independent state ground which prevents federal review in a habeas corpus proceeding.” We disagree. The State’s sweeping interpretation of what the Court actually held in Wainwright is much too broad. The most that can be said of Wainwright is that the Court held that a total failure to comply with a contemporaneous objection rule which serves a legitimate state interest may be an adequate and independent state ground precluding review in the Supreme Court of the United States and therefore be said to bar federal habeas review. The factual and procedural circumstances of Wainwright were entirely different from those presented in this case. In addition, Wainwright recognized and reaffirmed a longstanding constitutional principle that overly technical state procedural rules can not bar review of constitutional rights in the Supreme Court of the United States. We find and conclude that the Missouri rule of appellate procedure which petitioner’s counsel was found to have violated is not an adequate and independent state ground which bars federal habeas review under Wainwright’s rationale. In Wainwright, the petitioner, after trial and direct appeal proceedings had been completed, challenged for the first time in a post-conviction motion to vacate sentence the admissibility of incriminating statements which had been admitted at his trial. He contended that the statements were inadmissible because he had been intoxicated when the Miranda warnings were read to him and that under those circumstances he could not knowingly have waived his rights under the standards of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The Florida courts refused to consider the question presented in the motion to vacate sentence or in a subsequent state petition for habeas corpus because at no time during the trial was the admissibility of any of the defendant’s statements challenged by his counsel on the ground later and for the first time stated in the post-conviction proceedings and because the question was not presented as required by Fla. Rule Crim. Pro. 3.190(i). The Court concluded “that Florida procedure did, consistently with the United States Constitution, require that respondent’s confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See Henry v. Mississippi, 379 U.S. 443, [85 S.Ct. 564, 13 L.Ed.2d 408] (1965).” 433 U.S. at 86-87, 97 S.Ct. at 2506 (emphasis added). The Court stated in detail the purposes served by a contemporaneous objection rule designed to protect legitimate state interests by directing the state trial judge’s attention to a defendant’s federal claim so that the judge could make at trial “the factual determinations necessary for properly deciding the federal constitutional question,” rather than having those questions decided “years later in a federal habeas proceeding.” Id. at 88, 97 S.Ct. at 2507. Having concluded that Sykes’ failure to raise his constitutional claims at the time of trial amounted to an independent and adequate state ground which would have prevented direct review by the Supreme Court in an appeal from the highest appellate court of a State, the Court proceeded to the question of whether the rule of Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), barring federal habeas corpus review absent a showing of “cause” and “prejudice,” should be applied in a case in which no objection based on federal constitutional grounds had been made at or during the state court trial. Id. 433 U.S. at 87, 97 S.Ct. 2497. The Court answered that question in the affirmative and proceeded to find neither “cause” nor “prejudice” under the circumstances presented in Wainwright. The rationale of Wainwright generally, and the Supreme Court’s approving citation of Henry v. Mississippi in particular, require that this Court must determine whether the finding of the Supreme Court of Missouri,— that petitioner’s counsel “failed to keep alive and preserve for appellate review the [Miranda ] question raised by his motion to suppress,” [544 S.W.2d at 568] — is an independent and adequate state ground that would bar review in the Supreme Court of the United States and thus preclude federal habeas review. The Attorney General’s argument assumes without discussion that a violation of Missouri’s rule of appellate procedure applied in this case is an independent and adequate state ground which would bar Supreme Court review on direct appeal. We find and conclude that a violation of Missouri’s rule of appellate procedure would not constitute an independent and adequate state ground barring direct review in the Supreme Court and therefore does not bar federal habeas review under the new rationale of Wainwright. Wainwright did not change or challenge the long established principle that “the adequacy of state procedural bars to the assertion of federal questions is itself a federal question.” Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 1078, 13 L.Ed.2d 934 (1965). See, e. g., Henry v. Mississippi, 379 U.S. 443, 447, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Staub v. City of Baxley, 355 U.S. 313, 318, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 68 L.Ed. 143 (1923); Carter v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 44 L.Ed. 839 (1900). Henry v. Mississippi defines the inquiry a federal court must make in determining whether a state’s procedural grounds may bar federal review: These cases settle the proposition that a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State’s insistence on compliance with its procedural rule serves a legitimate state interest. In every case we must inquire whether the enforcement of a procedural forfeiture serves such a state interest. If it does not, the state procedural rule ought not be permitted to bar vindication of important federal rights. [379 U.S. 447-48, 85 S.Ct. at 567]. See also id. at 448 n.3; 85 S.Ct. 564 n.3; Michigan v. Tyler, 436 U.S. 499, 512 n.7, 98 S.Ct. 1942, n.7, 56 L.Ed.2d 486 n.7 (1978); Camp v. Arkansas, 404 U.S. 69, 92 S.Ct. 307, 30 L.Ed.2d 223 (1971) (per curiam), rev’g and remanding 249 Ark. 1075, 467 S.W.2d 707 (1971). Henry v. Mississippi also teaches that a state procedural rule which requires that a contemporaneous objection be made at and during a defendant’s state criminal trial in order that the state trial judge be in a position to prevent or correct trial error “clearly does serve a legitimate state interest. By immediately apprising the trial judge of the objection, counsel gives the court the opportunity to conduct the trial without using the tainted evidence. If the objection is well taken the fruits of the illegal search may be excluded from jury consideration, and a reversal and new trial avoided.” 379 U.S. at 448, 85 S.Ct. at 567-8. Despite the general legitimacy of the Florida type of contemporaneous objection rule considered in Wainwright the Court in Henry stated that a state finding that such a state rule had been violated would not constitute an independent and adequate state ground barring direct review in the Supreme Court of the United States when the purpose of the rule — to permit appropriate consideration of the federal constitutional issue by the state trial judge — was substantially served by some other trial development accomplishing the same purpose. The Court stressed: [0]n the record before us it appears that this purpose of the contemporaneous-objection rule may have been substantially served by petitioner’s motion at the close of the State’s evidence asking for a directed verdict because of the erroneous admission of the officer’s testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action. ... In these circumstances, the delay until the close of the State’s case in presenting the objection cannot be said to have frustrated the State’s interest in avoiding delay and waste of time in the disposition of the case. If this is so, and enforcement of the rule here would serve no substantial state interest, then settled principles would preclude treating the state ground as adequate; giving effect to the contemporaneous-objection rule for its own sake “would be to force resort to an arid ritual of meaningless form.” Staub v. City of Baxley, 355 U.S. 313, 320, 78 S.Ct. 277, 281, 2 L.Ed.2d 302); see also Wright v. Georgia, 373 U.S. 284, 289-291, 83 S.Ct. 1240, 10 L.Ed.2d 349. [Id., 379 U.S. at 448-49, 85 S.Ct. 564, 568 (footnote omitted)]. Henry therefore makes clear that not every “procedural default” resulting from a state court’s finding of a violation of some state procedural rule can properly be considered as an independent and adequate state ground precluding Supreme Court review and thus be viewed as a bar to federal habeas review. Indeed, the Court in Henry concluded that the purpose of a valid contemporaneous objection rule would be substantially served by any procedure which focused the attention of the state trial judge on a federal constitutional claim and which afforded that judge an appropriate opportunity to rule the federal question in a manner consistent with applicable federal law. A refusal of a state appellate court to reach the merits of a defendant’s federal claim fairly presented to the state trial court at the time of trial on the ground that the defendant’s counsel was in “procedural default” of a state rule of appellate decision which requires multiple objections to be made at trial simply is not an independent and adequate state ground which would preclude review in the Supreme Court. Wainwright did not overrule the long line of cases illustrated by Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In Douglas, the Alabama Court of Appeals refused to consider petitioner’s constitutional claim because of his counsel’s failure to make a “sufficient” objection. The Supreme Court pointed out that defense counsel at trial had made multiple objections at trial, had moved to exclude the evidence, and had included the claimed error in defendant’s motion for new trial. The Court found that under those circumstances the Alabama Court of Appeals’ finding that the federal claim had not been preserved for state appellate review was not an independent and adequate state ground barring Supreme Court review: [A]n objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here. ... On these facts, it is clear that the defense brought the objection to the attention of the court at several points, at any of which corrective action could have been taken by stopping the questioning, excusing the jury, or excluding the evidence. To the extent that the Alabama rule requires objection after each and every question in this prolonged series, it is plainly inadequate to bar our review of the federal question presented. [Id. at 422-23, 85 S.Ct. at 1078-1079 (citations omitted).] In this case petitioner’s counsel made the State trial judge aware of his constitutional objection in a motion to suppress filed two days prior to trial. On the very day of trial the state trial judge conducted an evidentiary hearing on the motion to suppress. After the hearing the state trial judge denied the motion to suppress and the case proceeded to trial. It is true, of course, that the police officer was permitted to testify to the incriminating oral statements the same day without further objection and that defendant’s counsel cross-examined the police officer before the case was recessed for the day. However, promptly the next morning before further proceedings with the jury petitioner’s counsel moved to strike Detective Watson’s testimony and requested that the state trial judge instruct the jury to disregard that testimony for the reasons stated in the motion to suppress. The state trial judge was afforded a final trial opportunity to rule petitioner’s federal claim in accordance with applicable federal law when the question was presented in petitioner’s alternative motion for a new trial. The Missouri Supreme Court refused to review the merits of petitioner’s constitutional claim, holding that the petitioner “failed to keep alive and preserve for appellate review the question raised by his motion to suppress. State v. Yowell, 513 S.W.2d 397, 402-3 (Mo. banc 1974),” 544 S.W.2d at 568. It is obvious that the trial court was made aware of the petitioner’s federal claim before the trial commenced and that the question was again brought into precise focus a number of times during the trial. It is clear that the state trial judge was afforded ample opportunity to make proper rulings and to take appropriate action in regard to petitioner’s federal claim consistent with applicable federal standards. Thus the legitimate state interests which could have been served by a state trial or appellate rule of procedure requiring a eontemporaneous trial objection were fully served under the circumstances of this case. We find and conclude that the Supreme Court of Missouri’s enforcement of Missouri’s rule of appellate decision in this case served no legitimate state interest and thus does not constitute an independent and adequate state ground precluding federal habeas review within the rationale of Wainwright. Under these circumstances, to give effect to the state procedural rule “for its own sake ‘would be to force resort to an arid ritual of meaningless form.’ ” Henry v. Mississippi, 379 U.S. at 449, 85 S.Ct. at 568, quoting Staub v. City of Baxley, 355 U.S. 313, 320, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958). See also NAACP v. Alabama, 377 U.S. 288, 297, 84 S.Ct. 1302, 1308, 12 L.Ed.2d 325 (1964). (“The consideration of asserted constitutional rights may not be thwarted by simple recitation that there has not been observance of a procedural rule with which there has been compliance in both substance and form, in every real sense.”); Wright v. Georgia, 373 U.S. 284, 291, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); NAACP v. Alabama, 357 U.S. 449, 457-58, 78 S.Ct. 1163, 1169, 2 L.Ed.2d 1488 (1958) (“Novelty in procedural requirements cannot be permitted to thwart review, . . .”); Williams v. Georgia; 349 U.S. 375, 383, 75 S.Ct. 814, 819, 99 L.Ed. 1161 (1955) (“where a State allows questions of this sort to be raised at a late stage and be determined by its courts as a matter of discretion, we are not concluded from assuming jurisdiction and deciding whether the state court action in the particular circumstances is, in effect, an avoidance of the federal right. A State court may not, in the exercise of its discretion, decline to entertain a constitutional claim while passing upon kindred issues raised in the same manner.”); Davis v. Wechsler, 263 U.S. 22, 24, 44 S.Ct. 13, 14, 68 L.Ed. 143 (1923) (“Whatever springes the State may set . . ., the assertion of federal rights, when plainly and reasonably made, is not to be defeated [in] the name of local practice.”); Ward v. Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751 (1920) (“It therefore is within our province to inquire whether [a federal right] was denied in substance and effect, as by putting forward non-federal grounds of decision that were without any fair or substantial support.”); Vandalia Railroad v. South Bend, 207 U.S. 359, 367, 28 S.Ct. 130, 132, 52 L.Ed. 246 (1907) (“A case may arise in which it is apparent that a Federal question is sought to be avoided or is avoided by giving an unreasonable construction to pleadings . .”); Rogers v. Alabama, 192 U.S. 226, 230, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Carter v. Texas, 177 U.S. 442, 448, 20 S.Ct. 687, 44 L.Ed. 839 (1900). See also Chambers v. Mississippi, 410 U.S. 284, 309, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (Rehnquist, J., dissenting). B. The only opinion of the Court of Appeals for the Eighth Circuit which has considered Wainwright is Collins v. Auger, 577 F.2d 1107, 1110-11 (8th Cir. 1977), cert, denied, - U.S. -, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979), vacating and remanding 451 F.Supp. 22 (S.D.Iowa 1977). Wainwright was handed down after the District Court had granted federal habeas relief. The Court of Appeals therefore remanded Collins v. Auger to the District Court to certify additional findings as to “whether there had been a contemporaneous objection in the state trial court as to the due process issue and, if not, whether petitioner demonstrated ‘cause’ and ‘prejudice’ under the new standards adopted in Sykes.” Id. at 1108. On remand, the District Court “found that the petitioner had failed to make an adequate contemporaneous objection . and thus was required to establish both cause . . . and prejudice.” Id. at 1109. The District Court concluded that Wainwright required it to vacate its original order granting habeas relief because petitioner had established cause but had not established prejudice. The Court of Appeals, however, vacated the District Court’s order and directed that the original order granting habeas relief be reinstated. It concluded that under the circumstances of that case the petitioner had “asserted an adequate contemporaneous objection in the state proceedings” and that therefore the District Court should not have attempted to apply the “cause” and “prejudice” rule of Francis v. Henderson in the case before the court. Id. The Court of Appeals concluded that the record of the state court proceedings established that “the trial court, as well as the Supreme Court of Iowa was alerted to evidentiary and constitutional issues pertaining to the confession’s admissibility.” Id. It therefore held “that petitioner asserted an adequate contemporaneous objection in the state proceedings.” Id. The Court of Appeals, however, proceeded to make alternative findings relating to both factors of “cause” and “prejudice” included in the rule of Francis v. Henderson on the assumption that the Supreme Court might later decide that “petitioner did not properly challenge the admission of the statements and the ‘cause’ and ‘prejudice’ test required by Sykes is properly before us.” Id. at 1110. Although we are convinced that the procedural circumstances of this case are comparable to those presented in Collins v. Auger and that petitioner asserted an adequate contemporaneous objection in the state proceedings, we believe that we should follow the pattern of making alternative findings as established by our Court of Appeals in Collins v. Auger. We therefore find and conclude in the alternative that petitioner has established “cause” for his counsel’s failure to object at trial because there is nothing in the record to suggest that defense counsel’s failure to renew his objection to Detective Watson’s testimony was a matter of trial strategy. Rather, it is clear that petitioner’s counsel must have been unaware of the necessity for such repetitious action in light of the state trial judge’s adverse ruling made earlier the same day. Petitioner’s counsel’s motion to strike Detective Watson’s testimony before the case was submitted to the jury reflected every intention to preserve petitioner’s federal claim for state appellate review. We find and conclude that his apparent lack of knowledge of the necessity for multiple objections is sufficient cause under the circumstances. The Court of Appeals for the Eighth Circuit discussed the factor of “prejudice” in some detail in Collins v. Auger, 577 F.2d at 1110-11. It pointed out that the Supreme Court in Wainwright left open the question of whether prejudice was to be established under a harmless error test or a more rigorous standard. The Court of Appeals held that, applying either standard, petitioner Collins had established prejudice. Similarly, we hold that, applying either a harmless error or a more rigorous standard, petitioner in this case has established prejudice flowing from the admission of Detective Watson’s testimony. From our independent examination of the overall state court record we find and conclude in the alternative that it is impossible for this Court to conclude that the evidence presented as to the petitioner’s guilt was substantial to a degree that would negate any possibility of actual prejudice resulting from the admission of that testimony. We further find and conclude in the alternative that it is reasonable to assume that Detective Watson’s testimony relating petitioner’s alleged oral admissions substantially influenced the jury on the issue of guilt. Therefore, either under a standard of harmless error or a more rigorous standard, the admission of petitioners incriminating statements was prejudicial to petitioner. We therefore find and conclude that under the circumstances of the overall record of the state court proceedings petitioner established both “cause” and “prejudice” as would be required under the rule of Francis v. Henderson, assuming that rule is properly applicable to this case. For all the reasons stated, we find and conclude that the principles of Wainwright v. Sykes do not bar review of the merits of the Miranda question presented. V. The second point relied upon by the Attorney General in his brief filed in this Court contends that “consideration of the merits of the petitioner’s challenge to his inculpatory statement is barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), since the petitioner makes only a bare allegation of a Miranda violation without questioning the actual voluntariness or reliability of the confession, and the petitioner received a full and fair opportunity to raise the issue in the state courts.” We find and conclude that the doctrine of Stone v. Powell does not apply to this case. In Stone v. Powell, the Supreme Court ruled that the exclusionary rule mandating the inadmissibility of physical evidence which is found to have been taken in a search or seizure in violation of the Fourth Amendment should not be applied in a federal habeas corpus review of a state conviction “absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.” 428 U.S. at 495 n.37, 96 S.Ct. at 3053. The Court stated that exclusion of “typically reliable and often the most probative” physical evidence was a cost to our “rational system of criminal justice” which outweighed any incremental deterrent effect of the exclusionary rule. Id. at 490, 494, 96 S.Ct. at 3050, 3052. The Attorney General would have us extend this ruling to the Fifth Amendment area. This we refuse to do. In Stone the Court specifically limited its ruling to constitutional claims arising under the Fourth Amendment. See id. at 495 n.37, 96 S.Ct. at 3052-3053 n.37 (“[O]ur decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally.”) (emphasis in original); id. at 496-98, 96 S.Ct. 3037. (Burger, C. J., concurring.) As Chief Justice Burger suggested, a confession taken in violation of Fifth Amendment guarantees is “inherently dubious”; therefore the alleged constitutional violation deserves close consideration on the merits. The Court of Appeals for the Seventh Circuit is the only federal appellate court to consider whether to apply the doctrine of Stone v. Powell to a violation of the Miranda rules. It refused. See United States ex rel. Henne v. Fike, 563 F.2d 809, 812 (7th Cir. 1977), cert, denied sub nom. Henne v. Fike, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 766 (1978) (per curiam). We agree with that ruling, and consequently we find and conclude that the doctrine of Stone v. Powell does not apply to this case. We now turn to the merits of petitioner’s Miranda claims. VI. The third and final point relied upon by the Attorney General in his brief filed in this Court argues on the merits that “the state trial court did not commit error of constitutional magnitude by refusing to exclude the petitioner’s statement to Kansas City, Missouri, police officers, notwithstanding their failure to give the petitioner a Miranda warning, since the statement elicited was not the result of ‘custodial interrogation’ inasmuch as the petitioner voluntarily accompanied police to police headquarters and since his freedom of action was not restrained in any significant way.” The state trial judge denied petitioner’s motion to suppress on dual grounds: (1) the petitioner “had received the [Miranda ] warning four times” and (2) “the further interrogation and investigation was not a custodial interrogation.” [Tr. 61-62]. In ruling petitioner’s motion to strike Detective Watson’s testimony, the state trial judge reversed the order in which the grounds were stated by ruling that “the motion will be overruled on two bases. . First, that the interrogation was not a custodial interrogation. Secondly, that the defendant had been adequately warned previously concerning his rights in the matter.” [Tr. 212]. The state trial judge did not indicate which of the two “bases” for his decision he believed was the most significant. He made no findings whatever to support his conclusion that the police questioning was not a “custodial interrogation.” His references to the prior warnings which had been given petitioner were, or course, references to the Miranda warnings properly given the petitioner by the State Highway Patrol and by the Warrensburg police back in September, 1973, approximately two months before petitioner was questioned by the Kansas City police. The Attorney General does not even attempt to sustain the state trial judge’s action on the ground that the Kansas City police were somehow relieved from giving the petitioner Miranda warnings because he had received such warnings from other police officers two months earlier. The Attorney General does contend, however, that petitioner’s interrogation by the Kansas City police on November 22,1973, was not a “custodial interrogation” and that, therefore, petitioner was not entitled to Miranda warnings under the circumstances. The only state court judge who made any specific findings in regard to the nature of petitioner’s interrogation properly concluded that Miranda warnings were required under the circumstances. That judge also concluded that the trial court record could not support a finding that the petitioner had voluntarily waived his constitutional rights. Consistent with familiar principles of comity, we find and conclude that Chief Justice Seiler properly applied controlling federal principles to the findings which we find and conclude were reliably made by him: Appellant’s self-incriminatory statements to the Kansas City police should not have been admitted into evidence because he was neither apprised of his rights to remain silent and to be represented by counsel, nor did he voluntarily waive these rights. ... In the case before us, two officers, who knew that the appellant was charged with the theft of a gun which they had in their possession as the murder weapon in a homicide they were investigating, drove to appellant’s residence in an unmarked state highway patrol car. According to their own testimony, upon arriving at appellant’s residence, they got out of the car, went up to the house, pounded repeatedly on the door, “I really whamm