(dissenting).
I respectfully dissent for the following reasons. First, 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. Second, under the facts of this case we should not require objection before trial, at trial, and after trial in order to deem appellant’s objection to the admission of this testimony properly preserved. Last, I would hold that even if we find appellant’s objection not preserved, the trial court committed plain error in admitting the self-incriminatory statements.
In evaluating the need for the Kansas City police to have given appellant his Miranda warning, it seems to me the majority opinion is somewhat equivocal. On one hand, the opinion implies that because warnings were given by different police agencies some two months prior to the incident in question, appellant had sufficient knowledge of his rights at the time of questioning. On the other hand, the majority intimates earlier in the same paragraph that because the appellant was not under suspicion for the crime the Kansas City police were investigating, he was not in custody to an extent which would require giving a Miranda warning.
The idea that residual knowledge from a warning delivered to a suspect by the police at the time of an arrest several months earlier is sufficient was expressly disavowed by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 471-72, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966) wherein it was stated:
“[W]e hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation . . . . As with warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.”
Furthermore, I am unable to agree with the majority opinion’s view that appellant was not in custody to a degree which required a Miranda warning. It seems to me that clearly he was. The Supreme Court explained its holding in Miranda as follows:
“[T]he prosecution may not use statements, whether exculpatory or inculpato-ry, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612.
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 ear. 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 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. The foregoing hardly represents the general on-the-scene impromptu questioning the Supreme Court meant to leave unaffected by Miranda. It is true one of the detectives also testified that appellant simply accepted an “invitation” to go downtown to police headquarters and that he was free to go at *571any time, although no one informed him of that fact, but this uncommunicated, self-serving, subjective belief on the part of the police does nothing, in my opinion, to lessen the custodial aspects of defendant’s questioning. Appellant was deprived of his freedom in a significant way as contemplated by Miranda, and consequently, he has a right to Miranda warnings. Moreover, we have recognized the coercive atmosphere surrounding such police “requests”. In State v. Young, 425 S.W.2d 177, n. 4, (Mo.1968) we quoted with approval State v. Owens, 302 Mo. 348, 259 S.W. 100, 102 (banc 1924) to the effect that:
“. . . [i]f an officer appears at a person’s home, and in his official character demands the privilege of searching the premises, the owner of the premises who yields peaceably and silently to the official demand is as much under constraint as if he had forcibly resisted official interference.”
The same holds true for the police request here to go downtown. It was permeated with the coercive atmosphere presented by the apparent force of law. That required a Miranda warning be given.
The majority cites State v. Yowell, 513 S.W.2d 397 (Mo.banc 1974) for the proposition that the appellant, by neglecting to raise an objection at trial to the admission of his self-incriminatory statements to the Kansas City police, has failed to preserve this question for appellate review. Yowell explains, however, the reason for requiring an objection to the admissibility of evidence prior to trial in a motion to suppress, at trial, and after trial. One of the more important reasons, as explained by Yowell at 402-03, is to prevent judicial confusion and to preserve an orderly system of justice.
“The judge presiding over the trial would not necessarily know what transpired at the hearing on the motion to suppress nor would he know with any degree of particularity what items of evidence were the subject of the motion. The hearing of pretrial motions by a judge who does not preside at the trial itself occurs frequently in multiple-judge circuits and also occurs when a motion for change of judge is filed and granted in other circuits after the motion to suppress has been heard and decided.”
In the case before us, this reason for the rule does not exist. The parties in the case had just finished arguing the motion to suppress for two hours in front of the judge who presided at the trial which began immediately following argument on the motion. Furthermore, objection to admission of the statement was made again immediately after the state rested its case and again in the motion for new trial. Additionally, there is nothing to indicate that had the objection been made at trial immediately prior to the statement, the trial judge would have changed his mind from his ruling a few hours earlier and sustained the objection. Nor is there any indication that defendant has advanced any reasons for his objection other than those first presented to the court. The objection all along was that appellant had not been given the Miranda warning. In this case I would not require an objection at trial because to do so would be to require a needless act.
Last, even if objection at trial is required, I would review the admissibility of these self-incriminating statements as plain error affecting substantial rights which would result in manifest injustice or miscarriage of justice under Rule 27.20(c). See State v. Rapp, 412 S.W.2d 120 (Mo.1967); State v. Beasley, 404 S.W.2d 689 (Mo.1966). As to whether this is plain error, I agree with what Turnage, P. J., who wrote the court of appeals opinion reversing and remanding this case said, as follows:
“As revealed from the statement of facts heretofore given, it is apparent the State’s case rests on an entirely different footing without the admission of the defendant’s statement given to Detective Watson. It can certainly be said that without this statement the State does not have nearly as strong a case. It is obvious the defendant would be in a much different position before the jury without tlrerstatement in evidence. The resultant *572material weakening of the State’s case by excluding the statement is sufficient to demonstrate the admission of the statement affected defendant’s substantial rights. This resulted in manifest injustice to defendant. Under Rule 27.20(c) this is plain error requiring a new trial.”