Florencio P. Hernandez v. State of Nevada

469 F.2d 1393 Florencio P. HERNANDEZ, Plaintiff-Appellant, v. STATE OF NEVADA, Defendant-Appellee. No. 72-2363. United States Court of Appeals, Ninth Circuit. Dec. 14, 1972. Morgan D. Harris, Jeffrey D. Sobel, Las Vegas, Nev., for plaintiff-appellant. Robert List, Atty. Gen., Carson City, Nev., for defendant-appellee. Before MERRILL, BROWNING and WALLACE, Circuit Judges. PER CURIAM: [1] For the reasons set forth by the District Court in its order denying habeas corpus, we agree that under the circumstances of this case the pre-arrest photographic identification by an eye-witness played a negligible role in her in-court identification of appellant and that there was no substantial possibility of misidentification.1 [2] Affirmed. Footnotes [1] We agree with the views expressed by the Supreme Court of Nevada, Hernandez v. State, 87 Nev. 553, 490 P.2d 1245, 1247 (1971), that it is the duty of the state to preserve a record of the photographs used for identification purposes to enable counsel to reconstruct the identification process. However, we agree with that court and with the District Court that failure to meet this duty does not, per se, constitute error of constitutional proportions, and that whether due process was lacking depends on the facts of the particular case