462 F2d 626 Michael v. A Eyman

462 F.2d 626

Edward Lee MICHAEL, Jr., Appellant,
v.
Frank A. EYMAN, Warden, Arizona State Prison, Appellee.

No. 71-2774.

United States Court of Appeals,

Ninth Circuit.

June 16, 1972.
As Amended on Denial of Rehearing July 7, 1972.

Edward Lee Michael, Jr., in pro. per.

Gary K. Nelson, Atty. Gen., Louis A. Moore, Jr., Asst. Atty. Gen., Phoenix, Ariz., for appellee.

Before MERRILL, TRASK and GOODWIN, Circuit Judges.

PER CURIAM:

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1

An Arizona prisoner serving a sentence for second-degree murder appeals a denial of habeas-corpus relief, urging that his state conviction was tainted by "poisoned-tree" evidence and a bad instruction. We affirm.

2

The instruction, even if it was error under state law, a point which we need not decide, presents no federal constitutional question.

3

The evidentiary question affords no basis for habeas-corpus relief. The state introduced in evidence two pistols found in a drawer in the prisoner's room at the time of his arrest. The pistols were pointed out in answer to a question by a police officer who had arrived at the scene of the shooting while the prisoner was still somewhat shaken by recent events. He said, "I shot my wife," and, with reference to the fatal weapon, said, "It's over there."

4

Both statements were made without the benefit of pre-interrogation warnings. While the state court excluded both incriminating statements, it did not deem the physical exhibits fatally tainted by the lack of warnings. See State v. Michael, 103 Ariz. 46, 436 P.2d 595 (1968).

5

We express no opinion on whether a police officer must give pre-interrogation warnings prior to asking the location of a lethal weapon in the circumstances of this case. It is sufficient to note that the questioning occurred before Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was decided, and that Miranda is not, for federal habeas-corpus purposes, retroactive. Jacobson v. People of California, 431 F.2d 1017 (9th Cir. 1970). See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

6

Affirmed.