455 P.2d 915 (Nev. 1969), 5741, Hamlet v. State

Docket Nº:5741.
Citation:455 P.2d 915, 85 Nev. 385
Party Name:Floyd HAMLET, Appellant, v. The STATE of Nevada, Respondent.
Case Date:June 17, 1969
Court:Supreme Court of Nevada
 
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Page 915

455 P.2d 915 (Nev. 1969)

85 Nev. 385

Floyd HAMLET, Appellant,

v.

The STATE of Nevada, Respondent.

No. 5741.

Supreme Court of Nevada.

June 17, 1969.

[85 Nev. 386] James E. Ordowski, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., and Jerry J. Kaufman, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

ZENOFF, Justice.

During the afternoon of June 12, 1967 appellant Hamlet and three other men were parked outside of a small grocery store in Las Vegas. When the owner investigated he was told by Hamlet that the car had a

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dead battery. The owner made a note of the license number of the car because he suspected that the men were casing his store for the purpose of robbing it. During the evening hours of the next day the same owner saw Hamlet walking toward the store while pulling a mask [85 Nev. 387] over his face. Several men were following him and armed robbery ensued. They were later apprehended and Hamlet was convicted of being the gunman. On appeal he raised three principal issues (1) that his conviction should be reversed because a lineup was used against him without meeting constitutional requirements of his right to counsel (2) that his life imprisonment sentence is unconstitutional, and (3) that the prosecutor by his misconduct created reversible error.

1. There is no dispute that the lineup was conducted without the presence of counsel. Assuming this infirmity the question is whether the state proved by clear and convincing evidence that the in-court identification by the owner was based upon his observation at the scene of the offense. Thompson v. State, 85 Nev. 134, 451 P.2d 704 (No. 5616, Filed March 11, 1969).

The court held a hearing and from it concluded that the owner's wife should be prevented from making an in-court identification because she had not observed Hamlet independent of the lineup since she never saw his face at the scene although she chose him from the lineup. The trial judge allowed the owner's identification because he testified that he had observed Hamlet coming out of the car the day before the robbery, saw Hamlet's face just before he pulled the mask over his face as he walked outside the store, and that the testimony was incontroverted. We find no error in the court's ruling as to identification.

2. Records of Hamlet's prior...

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