dissenting.
I respectfully dissent because (1) Feltrop’s incriminating statements should have been suppressed because they were taken in violation of his Miranda rights; and (2) the jury received an unconstitutionally vague aggravating circumstance instruction during the penalty phase of the trial.
I. Admission of Incriminating Statements
I agree with the majority that the state court’s finding that Feltrop was not “in custody” when he first made an incriminating statement is entitled to a presumption of correctness. In my view, however, the presumption is overcome by the undisputed facts.
Ron Speidel, a sergeant with the Jefferson County Sheriffs Department, testified that on March 16, 1987, Feltrop visited the sheriffs office to make a missing person’s report concerning Barbara Roam. Feltrop stated that Roam had disappeared a week earlier and that he did not immediately report her missing because in the past she had sometimes disappeared but always returned home within several days. Speidel told Feltrop to wait a few days and then return to the sheriffs office if Roam had not yet come home.
On March 23, 1987, Speidel was again on duty when a fellow officer informed him that Roam’s mother had reported her missing. Speidel recalled his recent meeting with Fel-trop and also remembered a local news broadcast that had reported that an unidentified torso had been found in St. Charles County. The broadcast showed a composite drawing of a person who was seen near an automobile parked on the road near where the torso was found. A copy of the composite was in the hallway of the sheriffs department, and Speidel stated that he believed the composite looked “identical” to Feltrop. Tr. 119. When Speidel was asked at the suppression hearing whether he “suspected” Feltrop after seeing the composite on television, he replied, “sure.” Tr. 124.
Speidel then called the St. Charles County Sheriffs Department and reported that the composite drawing looked like Feltrop, the man who had first reported Roam missing. St. Charles officers asked Speidel to call Feltrop and arrange for Feltrop to meet with them.
Speidel went to Feltrop’s trailer home several times but did not find him home. Spei-del left his card with a neighbor and asked him to have Feltrop call. Feltrop telephoned Speidel and said he would be in as soon as possible. Feltrop drove his own vehicle to the Jefferson County Sheriffs Department, but Speidel did not recall whether he went to Feltrop’s home and followed Feltrop as he drove to the sheriffs office. Feltrop arrived sometime between 8:00 p.m. and 9:00 p.m.
*777While there is a dispute in the record as to the time the St. Charles County officers arrived at the Jefferson County headquarters, according to deputies from the St. Charles County Sheriffs Department, four of their officers arrived at the Jefferson County headquarters at 10:30 p.m. Thus, Feltrop was in the Jefferson County headquarters for at least an hour and a half before the St. Charles County officers arrived. During this time he was not told that he was free to leave. Rather, the Jefferson County officers made it clear to him that he was to await the arrival of the St. Charles officers.
David Kaiser, an investigator for St. Charles County, and Sheriff Eubinger were the primary interrogators of Feltrop. The interrogation began at approximately 11:45 p.m. and was conducted in a small room at the back of the Jefferson County headquarters. It is conceded that Feltrop was not read his Miranda rights prior to the interview. The initial interview lasted until approximately 1:10 or 1:20 a.m. Near the end, Kaiser 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. Feltrop did not respond. Kaiser then asked Feltrop if he was a Christian, and Feltrop responded that he had been raised that way. He then stated that he had tried to take the knife away from Roam. This statement clearly inculpated Feltrop. Only then did Kaiser leave the room and suggest to his supervisor, Lieutenant Simeox, that Feltrop be given his Miranda rights. Simeox agreed, and Kaiser advised Feltrop of his Miranda rights, but by then the damage had been done.
Feltrop spent nearly three hours in the small room at the sheriffs office waiting to be interviewed, and an additional hour and a half being interviewed by Kaiser and the sheriff. During this time he was clearly a suspect, and there is no credible evidence in the record to support the view that Feltrop was free to leave the premises at any time during the interview. While there is evidence that Feltrop left the interview room when he was escorted to the restroom and that the officers brought him a soda, there is no evidence to support the view that he was free to leave the premises. To the contrary, no one even suggested to Feltrop that he was free to leave the premises, let alone told him so explicitly. By the words and actions of the interviewers and the nature of the interview, the only reasonable conclusion one can draw is that Feltrop was not free to leave the premises and that his Miranda rights were violated.
The Missouri Supreme Court stated in State v. Feltrop, 803 S.W.2d 1, 13 (Mo.), cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991), that Feltrop himself assumed he was free to go because “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.” The fact is that Feltrop rode to the site in a law enforcement vehicle driven by Sgt. Speidel, with another officer riding in the back seat. Only then was he formally placed under arrest.
I do not believe that Stansbury v. California, — U.S. -, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), buttresses the State’s position. In Stansbury, • the Court stated that “the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation.” Id. at-, 114 S.Ct. at 1529. Here Feltrop was a suspect and could not have reasonably understood that he could leave during the course of the interview.
In my view, the failure to suppress Fel-trop’s inculpatory statements entitles him to a new trial. It may be, of course, that the State would have sufficient evidence on retrial to convict him even without these statements. I conclude only that the State must procure such conviction without the use of statements obtained in violation of Feltrop’s constitutional rights.
II. Aggravating Circumstance Instruction
I also maintain that, even if Feltrop’s conviction stands, the case must be remanded for resentencing because the jury’s decision to impose the death penalty rested on an invalid aggravating circumstance. At the penalty phase of the trial the jury received a single instruction on aggravating circumstances. Instruction No. 4B stated:
*778In determining the punishment to be assessed against the defendant for the murder of Barbara Ann Roam, you must first unanimously determine whether the following aggravating circumstance exists:
Whether the murder of Barbara Ann Roam involved torture and or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.
(Emphasis added.) In fixing punishment at death, the jury found the following aggravating circumstance beyond a reasonable doubt: “the murder of Barbara Ann Roam involved depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.” (Emphasis added.) This finding was handwritten and signed by the jury foreman on the verdict form, as required by Missouri law. The jury clearly found the existence of “depravity of mind” and made no finding of “torture” despite being given the opportunity to do so.
The Missouri Supreme Court itself has rejected as inadequate this bare instruction on “depravity of mind.” In State v. Preston, 673 S.W.2d 1, 10-11 (Mo.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984), it stated that “[t]he danger of wafting ‘depravity of mind’ without proper tethers is manifest: that circumstance could be utilized as a ‘catchall’ for murders not falling into any other statutory aggravating circumstances,” citing Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980). The supreme court noted “the mandate of Godfrey to establish ‘clear and objective standards’ as to what types of murders constitute ‘depravity of mind’ ” in order to prevent arbitrary or capricious infliction of the death penalty. 673 S.W.2d at 10-11. Despite this acknowledgement of the need to further define “depravity of mind,” the jurors at Fel-trop’s trial in 1988 were never given any narrowing construction to channel their discretion in determining Feltrop’s sentence.
The majority holds that the defective “depravity of mind” instruction was “cured” in the first instance by the trial judge in his role as “final sentencer” and, second, by the Missouri Supreme Court’s independent review of the evidence supporting Feltrop’s conviction and sentence. I respectfully disagree.
The conclusion that the trial judge “cured” the defective instruction rests on the determination by the Missouri Supreme Court that (1) the judge acted as the “final sentencer” due to his power under Missouri Rule of Criminal Procedure 29.05 to reduce a sentence as excessive; and (2) the judge is presumed to have known and applied the law, specifically the relevant factors enunciated in Preston. Feltrop, 803 S.W.2d at 15-16.
It is indeed true that there is no constitutional right to a jury-imposed sentence and that “there are many constitutionally permissible ways in which States may choose to allocate capital-sentencing authority.” Espinosa v. Florida, — U.S. -, -, 112 S.Ct. 2926, 2929, 120 L.Ed.2d 854 (1992); see also Clemons v. Mississippi, 494 U.S. 738, 746, 110 S.Ct. 1441, 1447, 108 L.Ed.2d 725 (1990). Mere declaration by the state supreme court that a particular party is the “final sentencer,” however, is not sufficient. It is the task of the federal court to determine how a capital sentencing scheme operates in fact, i.e., whether the judge, the jury, or a combination of both, acts as “sentencer” for Eighth Amendment purposes.
In Espinosa the State of Florida cited the authority of the Florida Supreme Court in Smalley v. State, 546 So.2d 720, 722 (Fla.1989), to argue that the jury was not the “sentencer” for Eighth Amendment purposes because the jury only made a sentencing recommendation and the trial judge thereafter independently weighed aggravating and mitigating circumstances to arrive at a sentence of death or life imprisonment. — U.S. at-, 112 S.Ct. at 2928. Therefore, the State argued, no harm resulted from the jury’s consideration of an unconstitutional aggravating circumstance instruction. Id. In ruling against the State, the Supreme Court examined the actual requirements and operation of the State’s capital sentencing regime to see which actor played what role in sentencing and the constitutional implications of that allocation of sentencing authority. Id. at-, 112 S.Ct. at 2928-29; see also Beltran-Lopez v. State, 626 So.2d 163, 164 (Fla.1993) (“In Espinosa, the United States *779Supreme Court rejected our analysis in Smalley based upon its view that Florida has essentially split the death penalty weighing process between the jury and the trial judge.”)
Examination of Missouri’s sentencing scheme shows that, with some exceptions not applicable here, the Missouri legislature has given the jury the task “to assess and declare the punishment” at death or life imprisonment.1 Mo.Rev.Stat. § 557.036.2. The fact that Missouri Rule of Criminal Procedure 29.05 permits the judge to reduce the punishment assessed by the jury “if [the judge] finds that the punishment is excessive” does not convert Missouri’s capital sentencing scheme into “judge sentencing” rather than “jury sentencing” for purposes of constitutional analysis. As Chief Justice Blackmar noted in dissent in the Missouri Supreme Court’s Feltrop opinion, “[i]t would be equally logical to argue that the governor acts as ‘final sentenced according to § 565.020.2, RSMo, which grants the governor power to ‘release’ the defendant.” 803 S.W.2d at 22 (Blackmar, C.J., concurring in part and dissenting in part). Rule 29.05 is designed to be a posttrial safeguard against excessive jury verdicts. It does not supplant the jury’s preeminent role in sentencing capital defendants.
Additionally, it is not logical under the circumstances of this case to apply any presumption that the trial judge knew and applied Preston’s limiting construction. The judge in fact permitted the jury to receive an aggravating circumstance instruction that did not contain the limiting factors and thus was unconstitutionally vague. To presume that the judge knew the law is to say that he deliberately gave a capital sentencing jury a defective instruction despite his awareness of its constitutional infirmity. I decline to adopt such a conclusion.
Moreover, the record gives no indication that the trial judge applied the Preston limiting factors. The brief memorandum denying Feltrop’s Rule 29.05 motion for reduction of sentence nowhere mentions those factors. State v. Feltrop, No. CR187-219-FX-J2 (Jefferson Cty. Cir. Ct. Aug. 3, 1988) (memorandum). Nor does the transcript of the 29.05 hearing show any acknowledgement by the judge that he realized his instructional error. The judge merely stated, “On the defense counsel’s rather eloquent plea for reduction of sentence, the Court has listened attentively to that and has recalled the testimony and the evidence in this cause, and the Court will overrule the Motion for Reduction of Sentence at this time.” Tr. 1564. Any presumption that the trial judge knew and correctly applied the limiting construction has been rebutted by the facts of this case.
I also conclude that the defective aggravating circumstance instruction was not “cured” by the Missouri Supreme Court in its review of Feltrop’s conviction and sentence. The majority holds that the state appellate court independently “cured” the trial court’s instructional error by finding “depravity of mind” using the narrow Preston standard. It cites the authority of Walton v. Arizona, 497 U.S. 639, 653-54, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990), which states that when the trial judge rather than the jury is the senteneer, the judge is presumed to know and apply any limiting construction, and even if the judge fails to properly apply the law, “a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined.” The majority further concludes that the state supreme court was not required to do a harmless error analysis or to reweigh the “depravity of mind” circumstance against the mitigating evidence because Missouri is not a “weighing” state.2
*780First, as discussed above, I reject the view that the judge rather than the jury is the “sentencer” under Missouri’s capital sentencing scheme. In addition, it is clear that one step in this scheme requires the jury to weigh aggravating and mitigating circumstances, and therefore the Supreme Court precedents applicable to “weighing” states apply to the issue presented here.
The majority cites Zant v. Stephens, 462 U.S. 862, 874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983), to define a “non-weighing” capital sentencing procedure as one in which “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” Zant examined the sentencing regime of Georgia, upon which Missouri’s system was based. The Supreme Court again discussed Georgia’s sentencing scheme, in comparison to Mississippi’s “weighing” system, in Stringer v. Black, 503 U.S. 222, 228-30, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (quoting Zant, 462 U.S. at 872, 103 S.Ct. at 2740):
Under Mississippi law, after a jury has found a defendant guilty of capital murder and found the existence of at least one statutory aggravating factor, it must weigh the aggravating factor or factors against the mitigating evidence. By contrast, in Georgia the jury must find the existence of one aggravating factor before imposing the death penalty, but aggravating factors as such have no specific function in the jury’s decision whether a defendant who has been found to be eligible for the death penalty should receive it under all the circumstances of the case. Instead, under the Georgia scheme, “in making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial.”
Unlike Georgia, however, Missouri’s sentencing procedure includes a “weighing” step. Missouri requires a jury to go through specific steps to establish a defendant’s predicate eligibility for the death penalty before the jury may take the ultimate step of determining whether to assess that penalty. First the jury must find at least one statutory aggravating circumstance beyond a reasonable doubt. Mo.Rev.Stat. § 565.030.4(1); Instruction No. 4B. If it does so, the jury must then find that the aggravating circumstances “warrant imposing the death sentence.” Mo.Rev.Stat. § 565.030.4(2); Instruction No. 5B. The next step in establishing eligibility requires the jury to find beyond a reasonable doubt that the mitigating circumstances are not “sufficient to outweigh the aggravating circumstance or circumstances.” Mo.Rev.Stat. § 565.030.4(3); Instruction No. 6B. Only if these requirements are satisfied does the jury proceed to decide “under all of the circumstances” whether “to assess and declare the punishment at death.” Mo.Rev.Stat. § 565.030.4(4); Instruction No. 7B.
Feltrop’s jury received a single aggravating circumstance instruction, which asked whether the murder “involved torture and or depravity of mind.” The jury found only that the murder involved “depravity of mind”; it did not find “torture.” It is undisputed that the “depravity of mind” instruction the jury received was unconstitutionally vague, and it is equally clear that this defective instruction tainted the jury’s assessment of Feltrop’s punishment. At a crucial step in the sentencing proceedings the jury was instructed that it “must return a verdict fixing defendant’s punishment at imprisonment for life ... without eligibility for probation or parole” if it finds that “one or more mitigating circumstances exist sufficient to outweigh the aggravating circumstance found by you to exist.” Instruction No. 6B. Having specifically excluded “torture” as an aggravating circumstance, the jury’s ultimate choice to impose the death penalty rested on the con-cededly erroneous instruction concerning “depravity of mind.” In making this choice, the jury decided that any mitigating circumstances pertaining to Feltrop or the murder did not “outweigh” the undefined “depravity of mind” involved in the murder.
*781It is clear then that a jury in Missouri cannot discharge its duty “to assess and declare the punishment” without undertaking a “weighing” process as a component of the capital sentencing scheme. As the Supreme Court stated in Espinosa, reiterating its earlier holdings, “the weighing of an invalid aggravating circumstance violates the Eighth Amendment.” — U.S. at-, 112 S.Ct. at 2928. No actor who has capital sentencing authority is permitted to weigh, even indirectly, a defective aggravating circumstance. Id. The death sentence assessed by Fel-trop’s jury cannot stand because it was tainted by the invalid “depravity of mind” instruction.
Furthermore, even if the instructional error is susceptible of correction by a state appellate court by reweighing the factors or by conducting a harmless error analysis, see Sochor v. Florida, — U.S.-,-, 112 S.Ct. 2114, 2119, 119 L.Ed.2d 326 (1992), it is undisputed that the Missouri Supreme Court here did neither. At oral argument the State urged this court to find that the state supreme court’s findings of sufficient evidence in the record to support “depravity of mind” using the Preston factors gives rise to a presumption of reweighing. I see no authority for doing so.
In sum, I would hold that Feltrop is entitled to a new trial because his incriminating statements should have been suppressed. Even if his conviction stands, I would remand the case for resentencing due to the erroneous aggravating circumstance instruction that the jury relied upon in fixing Feltrop’s sentence at death rather than life imprisonment.
. The court rather than the jury assesses the punishment when the defendant has so requested prior to trial; the defendant is a prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender; or the jury cannot agree on the punishment.
. In a recent opinion, LaRette v. Delo, 44 F.3d at 687 n. 4 (8th Cir.1995), this court stated that we recognized in Battle v. Delo, 19 F.3d 1547 (8th Cir.1994), and Mathenia v. Delo, 975 F.2d 444 (8th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993), that the Missouri Supreme Court definitively construed its capital sentencing statute as a non-weighing statute in cases such as State v. Shaw, 636 S.W.2d 667 (Mo.), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982), and State v. *780Bolder, 635 S.W.2d 673 (Mo.1982), cert. denied, 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983). I disagree that these cases stand for that proposition.