The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from jury convictions of first-degree murder and aggravated battery. The defendant, Bob Ewing, raises a single issue involving the admission over his objection of his statement made at the scene in response to a question asked of him by the investigating officer without the benefit of a Miranda warning. We conclude the erroneous admission was harmless error and affirm.
Although the jury was presented with conflicting versions of how the crimes occurred, the facts necessary for the resolution of the single issue presented are not in dispute. A detailed statement of facts is necessary to demonstrate the harmless nature of the error raised.
Evelyn Wayne is the former wife of the defendant; the wife of Charles Wayne, the victim of the defendant’s aggravated battery; the sister of the murder victim, Johnella Guinn; and the mother of the defendant’s daughter, Misty Ewing. The defendant had been married to Evelyn Wayne for quite some time when they divorced in 1990. According to Evelyn, she and the defendant remained on good terms after the divorce until she started dating Charles. Evelyn testified that after her marriage to Charles the defendant became despondent and began threatening Charles,
The incident which led to the defendant’s convictions occurred on February 7,1993. Evelyn and Charles had attended church with members of Evelyn’s family and then went to Evelyn’s parents’ house, which was next door to the defendant’s house. When they arrived, the defendant was in his driveway washing his truck. They did not speak to or acknowledge the defendant.
Evelyn and Charles ate dinner at her parents’ house. That afternoon, the defendant called the house and asked Evelyn if he could pick up some cleaning supplies of his which were at her [400]*400house. Evelyn told him he could do so if he brought the police along. The defendant also asked Evelyn to send Charles outside because the defendant wished to apologize to him for things that he had said previously. Evelyn told him an apology was not necessary.
Later that afternoon, Evelyn and Charles prepared to leave. Charles testified that he opened the car door for his wife, walked around the car, and got in the driver’s seat. At this point, the defendant was standing in his yard. As Charles was preparing to' shut the door he heard Misty Ewing shout: “Daddy, don’t. Daddy, don’t.” Charles testified that he bent over to get his gun out from under the seat of the car because he was fearful of what the defendant might do to him. As he was trying to get the weapon, he saw the defendant stánding outside the car with a gun. The defendant fired two shots, one of which went through both of Charles’s legs.
Evelyn saw the defendant approach the car with a gun in his hands. She testified that she heard her daughter, Misty, saying, “Daddy, don’t,” and then heard two shots. As Evelyn got out of the car, she saw her sister, Johnella Guinn, running up towards the defendant. She testified that the defendant turned around, pointed the gun at Guinn, and fired. Guinn was struck by one bullet and died as a result of the wound.
The defendant testified that as Charles and Evelyn entered the car, he approached the car with some bills he needed to give to Evelyn. He stated that he saw Charles reach down beneath the seat and pull out a gun. He then pulled out the gun that he kept with him and shot Charles in self-defense. His daughter, Misty, then tried to get the gun away from him. During their struggle the gun accidentally discharged, killing Guinn.
Gary Granger, a Kansas City police officer, was patrolling approximately one block away from the incident when he was called to the address by the dispatcher. He arrived on the scene to find a crowd of approximately'30 people milling around. He checked Guinn for a pulse but found none..
From people in the crowd, Officer Granger discovered that a person named Ewing shot Guinn and that Ewing was next door. [401]*401Granger did not know anyone named Ewing. Granger went to Ewing’s house and as he approached, two males, one of whom was Ewing, walked out of the house. Officer Granger drew his gun and told both of the males to halt and put their hands where he could see them. He then asked: “Who shot the lady?” The taller of the two pointed to Ewing. Ewing stated: “I shot the bitch.” According to Granger’s direct testimony at trial, Ewing wns then taken into custody. However, in a hearing prior to trial, upon cross-examination, Granger had stated that he placed the defendant in custody when he emerged from the house. Granger then began searching for Ewing’s weapon, which he found on the front porch of Ewing’s house.
Prior to trial, the defendant moved in limine to suppress the statement he made to Granger on the ground that he had not been advised of his Miranda rights. The court denied the defendant’s motion on the basis that the two individuals were not in custody at the time the defendant made his statement and on the further basis that the investigation had not focused on the defendant. At trial, the defendant again objected to the admission of his statement.
The first question we must resolve is whether the district court erred by admitting the defendant’s statement to Granger. The defendant argues that he was in custody and undergoing interrogation and, therefore, his rights were required to be given to him, based on the ruling of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Miranda holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the privilege of self-incrimination. 384 U.S. at 444. It is undisputed that these procedural safeguards were not used prior to the defendant’s statement to Granger, “I shot the bitch.” Therefore, the proper question is whether the statement stemmed from a custodial interrogation of the defendant.
The district court refused to suppress based on two reasons: (1) The defendant was not in custody at the time the statement was made, and (2) the officer had not focused his suspicion on the [402]*402defendant. In a recent case, Stansbury v. California, 511 U.S. — 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994), the United States Supreme Court held that whether the interrogating officers had focused their suspicions upon the individual being questioned is not relevant for purposes of Miranda if those suspicions are not disclosed to the defendant. 128 L. Ed. 2d at 301. The Court held that an officer s knowledge or beliefs may bear upon the custody issue if they are being conveyed by word or deed to the individual being questioned, but they are relevant only to the extent they would affect how a reasonable person would gauge his or her freedom of action. 128 L. Ed. 2d at 300. Therefore, the determining factor in deciding whether a Miranda warning is required is whether the person has been taken into custody. See 128 L. Ed. 2d at 298-99.
In this case, Granger testified at trial that he put the individuals in custody after Ewing made his statement. However, as Stansbury makes clear, the subjective belief of the officer is not an issue in determining whether a suspect is in custody for the purposes of Miranda unless it is actually communicated to the suspect.
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The opinion of the court was delivered by
Davis, J.:
This is a direct criminal appeal from jury convictions of first-degree murder and aggravated battery. The defendant, Bob Ewing, raises a single issue involving the admission over his objection of his statement made at the scene in response to a question asked of him by the investigating officer without the benefit of a Miranda warning. We conclude the erroneous admission was harmless error and affirm.
Although the jury was presented with conflicting versions of how the crimes occurred, the facts necessary for the resolution of the single issue presented are not in dispute. A detailed statement of facts is necessary to demonstrate the harmless nature of the error raised.
Evelyn Wayne is the former wife of the defendant; the wife of Charles Wayne, the victim of the defendant’s aggravated battery; the sister of the murder victim, Johnella Guinn; and the mother of the defendant’s daughter, Misty Ewing. The defendant had been married to Evelyn Wayne for quite some time when they divorced in 1990. According to Evelyn, she and the defendant remained on good terms after the divorce until she started dating Charles. Evelyn testified that after her marriage to Charles the defendant became despondent and began threatening Charles,
The incident which led to the defendant’s convictions occurred on February 7,1993. Evelyn and Charles had attended church with members of Evelyn’s family and then went to Evelyn’s parents’ house, which was next door to the defendant’s house. When they arrived, the defendant was in his driveway washing his truck. They did not speak to or acknowledge the defendant.
Evelyn and Charles ate dinner at her parents’ house. That afternoon, the defendant called the house and asked Evelyn if he could pick up some cleaning supplies of his which were at her [400]*400house. Evelyn told him he could do so if he brought the police along. The defendant also asked Evelyn to send Charles outside because the defendant wished to apologize to him for things that he had said previously. Evelyn told him an apology was not necessary.
Later that afternoon, Evelyn and Charles prepared to leave. Charles testified that he opened the car door for his wife, walked around the car, and got in the driver’s seat. At this point, the defendant was standing in his yard. As Charles was preparing to' shut the door he heard Misty Ewing shout: “Daddy, don’t. Daddy, don’t.” Charles testified that he bent over to get his gun out from under the seat of the car because he was fearful of what the defendant might do to him. As he was trying to get the weapon, he saw the defendant stánding outside the car with a gun. The defendant fired two shots, one of which went through both of Charles’s legs.
Evelyn saw the defendant approach the car with a gun in his hands. She testified that she heard her daughter, Misty, saying, “Daddy, don’t,” and then heard two shots. As Evelyn got out of the car, she saw her sister, Johnella Guinn, running up towards the defendant. She testified that the defendant turned around, pointed the gun at Guinn, and fired. Guinn was struck by one bullet and died as a result of the wound.
The defendant testified that as Charles and Evelyn entered the car, he approached the car with some bills he needed to give to Evelyn. He stated that he saw Charles reach down beneath the seat and pull out a gun. He then pulled out the gun that he kept with him and shot Charles in self-defense. His daughter, Misty, then tried to get the gun away from him. During their struggle the gun accidentally discharged, killing Guinn.
Gary Granger, a Kansas City police officer, was patrolling approximately one block away from the incident when he was called to the address by the dispatcher. He arrived on the scene to find a crowd of approximately'30 people milling around. He checked Guinn for a pulse but found none..
From people in the crowd, Officer Granger discovered that a person named Ewing shot Guinn and that Ewing was next door. [401]*401Granger did not know anyone named Ewing. Granger went to Ewing’s house and as he approached, two males, one of whom was Ewing, walked out of the house. Officer Granger drew his gun and told both of the males to halt and put their hands where he could see them. He then asked: “Who shot the lady?” The taller of the two pointed to Ewing. Ewing stated: “I shot the bitch.” According to Granger’s direct testimony at trial, Ewing wns then taken into custody. However, in a hearing prior to trial, upon cross-examination, Granger had stated that he placed the defendant in custody when he emerged from the house. Granger then began searching for Ewing’s weapon, which he found on the front porch of Ewing’s house.
Prior to trial, the defendant moved in limine to suppress the statement he made to Granger on the ground that he had not been advised of his Miranda rights. The court denied the defendant’s motion on the basis that the two individuals were not in custody at the time the defendant made his statement and on the further basis that the investigation had not focused on the defendant. At trial, the defendant again objected to the admission of his statement.
The first question we must resolve is whether the district court erred by admitting the defendant’s statement to Granger. The defendant argues that he was in custody and undergoing interrogation and, therefore, his rights were required to be given to him, based on the ruling of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Miranda holds that the State may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the privilege of self-incrimination. 384 U.S. at 444. It is undisputed that these procedural safeguards were not used prior to the defendant’s statement to Granger, “I shot the bitch.” Therefore, the proper question is whether the statement stemmed from a custodial interrogation of the defendant.
The district court refused to suppress based on two reasons: (1) The defendant was not in custody at the time the statement was made, and (2) the officer had not focused his suspicion on the [402]*402defendant. In a recent case, Stansbury v. California, 511 U.S. — 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994), the United States Supreme Court held that whether the interrogating officers had focused their suspicions upon the individual being questioned is not relevant for purposes of Miranda if those suspicions are not disclosed to the defendant. 128 L. Ed. 2d at 301. The Court held that an officer s knowledge or beliefs may bear upon the custody issue if they are being conveyed by word or deed to the individual being questioned, but they are relevant only to the extent they would affect how a reasonable person would gauge his or her freedom of action. 128 L. Ed. 2d at 300. Therefore, the determining factor in deciding whether a Miranda warning is required is whether the person has been taken into custody. See 128 L. Ed. 2d at 298-99.
In this case, Granger testified at trial that he put the individuals in custody after Ewing made his statement. However, as Stansbury makes clear, the subjective belief of the officer is not an issue in determining whether a suspect is in custody for the purposes of Miranda unless it is actually communicated to the suspect. See Stansbury, 128 L. Ed. 2d at 300.
An officer s obligation to administer a Miranda warning attaches only where there has been such a restriction on the suspect’s freedom as to render him or her in custody. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); see State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990). In determining whether an individual was in custody, the “ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest. [Citation omitted.]” California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983); see Stansbury v. California, 128 L. Ed. 2d at 298 (quoting this standard); see also State v. Fritschen, 247 Kan. at 599 (discussing this standard).
The initial determination of custody depends upon the objective circumstances of the interrogation, and the only relevant inquiry is “how a reasonable man in the suspect’s shoes would have understood his situation.” Stansbury v. California, 128 L. Ed. 2d at 299 (quoting Berkemer v. McCarty, 468 U.S. 420, 422, 82 L. Ed. 2d 317, 104 S. Ct. 3138 [1984]. Kansas has not deemed it prudent to [403]*403set forth any hard and fast factors in making this determination, instead preferring to determine each case on its facts. See State v. Fritschen, 247 Kan. at 603.
We conclude that the defendant was in custody when Granger asked his question. Granger had ordered the defendant to stop at gunpoint. He then asked a question which by its nature would elicit a confession. At this time, a reasonable person would have believed that his freedom of action was significantly curtailed. The conduct by Granger was also the type of conduct which is associated more with a formal arrest than an informal request for information. Granger himself stated at the motion in limine hearing that he placed the defendant in custody before asking his question. Under the circumstances, the defendant was in custody and should have been advised of his Miranda rights prior to interrogation. This conclusion, however, does not end our inquiry. Even an error of constitutional magnitude may be harmless. If this court possesses a firm belief beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial, it may be declared harmless. State v. Watson, 256 Kan. 396, Syl. ¶ 7, 885 P.2d 1226 (1994).
The defendant’s response to the officer’s question identified the defendant as the one who had shot Guinn. However, identity was not in issue in this case. All testifying witnesses, including the defendant, readily admitted that it was the defendant who shot Guinn. The defendant’s theory was that he shot Guinn accidently. Thus, the response identifying the defendant as the shooter did not prejudice the defendant in light of his own admission and the overwhelming evidence establishing the defendant as the shooter.
The defendant argues that his response with the inclusion of the word “bitch” caused substantial prejudice, requiring that we reverse and remand for a new trial. We disagree. It must be noted that defendant’s main objection is to his own choice of language and not to the question asked by Granger. Moreover, the defendant was able to fully develop his theory of the case, which was that his shooting of Guinn was accidental, resulting from a struggle with his daughter at the scene. His choice of the word “bitch” while identifying himself as the shooter did not prevent the jury from [404]*404considering evidence of an accidental shooting, especially in light of the fact that there was no evidence of animosity towards Guinn on the part of the defendant.
We conclude that under the circumstances of this case, beyond a reasonable doubt, the question by the investigating officer and the response of the defendant had little, if any, likelihood of changing the result of the trial. Thus, we conclude that the error is harmless and affirm the defendant’s convictions.
The State makes a persuasive argument that a Miranda warning was not required in this case because of the public safety exception found in New York v. Quarles, 467 U. S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984), as applied by this court in the case of State v. McKessor, 246 Kan. 1, 6-7, 785 P.2d 1332 (1990). We need not discuss this exception based upon our firm conviction that any error in admitting the defendant’s statement was harmless.
Affirmed.