Corbin v. State
| Decision Date | 30 March 1995 |
| Docket Number | No. 22309,22309 |
| Citation | 892 P.2d 580,111 Nev. 378 |
| Parties | William CORBIN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Philip H. Dunleavy, Las Vegas, for appellant.
Frankie Sue Del Papa, Atty. Gen., Carson City, Stewart L. Bell, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Clark County, for respondent.
William Corbin was convicted by jury verdict of three counts of sale of a controlled substance and one count of offer or attempt to sell a controlled substance. Corbin correctly asserts that the district court erroneously instructed the jury on the entrapment defense and erroneously deprived him of the right to impeach a key prosecution witness with evidence of prior felony convictions. For reasons discussed hereafter, we reverse the judgment entered below and remand for a new trial.
On May 15, 1990, the state filed a criminal complaint against Corbin, charging him with three counts of sale of a controlled substance and one count of offer or attempt to sell a controlled substance. At the jury trial, which began on January 22, 1991, Corbin waived his right to counsel and proceeded in proper person. Outside the presence of the jury, the state made an oral motion in limine to limit Corbin's questioning of Neil McGregor, a confidential informant. The state indicated that McGregor would be called as a witness and that McGregor had "some prior convictions." The state asked that Corbin not be permitted to cross-examine McGregor about the prior convictions unless Corbin had certified copies of the judgments of conviction. Corbin informed the court that he had asked for the certified copies two or three months prior to the trial, but that he had not received the copies. The district court granted the state's motion, but gave Corbin permission to ask McGregor about McGregor's time in prison with Corbin.
The district court instructed the jury about the entrapment defense as follows:
Entrapment is an affirmative defense and one that a Defendant must prove by a preponderance of the evidence.
If the jury is satisfied by a preponderance of the evidence that the Defendant had no previous intent or was induced or persuaded by some law officer, then the jury should find the Defendant not guilty.
Preponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.
The defense of entrapment is not available where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent.
The jury found Corbin guilty of all three counts of selling a controlled substance and the count of attempted sale of a controlled substance. On April 19, 1991, the district court entered a judgment of conviction and sentenced Corbin to serve four seven-year terms, two of which are to be served consecutively to each other and two of which are to be served concurrently with the first two, in the Nevada State Prison. Corbin appeals his
conviction, alleging that (1) the district court did not conduct a thorough Faretta 1 canvass on his waiver of the right to counsel; (2) he was entrapped as a matter of law; (3) prosecutorial misconduct warrants reversal; (4) his pretrial counsel was ineffective; (5) the district court erroneously instructed the jury on the entrapment defense; and (6) the district court erroneously deprived him of the right to impeach a key witness with evidence of prior felony convictions.
We have carefully considered Corbin's first three contentions and conclude that they lack merit. 2 As to Corbin's fourth contention that his pretrial counsel was ineffective, this court has consistently concluded that it will not entertain claims of ineffective assistance of counsel on direct appeal. Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981). Corbin has not raised this issue in a post-conviction proceeding in district court; therefore, we decline to entertain this claim. We conclude, however, that Corbin's contentions pertaining to the entrapment jury instructions and the right to impeach a witness with evidence of a prior felony conviction warrant reversal.
In Shrader v. State, 101 Nev. 499, 504, 706 P.2d 834, 837-38 (1985), we clarified the subject of which party bears the burden of proving or disproving the entrapment defense:
We now hold that the 'affirmative' nature of the [entrapment] defense merely requires the defendant to put forth evidence of governmental instigation. Thereafter it is incumbent upon the state to demonstrate the defendant's predisposition. Essentially, the defendant bears the burden of production on the first element, while the prosecution subsequently bears the burden of proof on the second element.
In this case the district court instructed the jury that "entrapment is an affirmative defense and one that a Defendant must prove by a preponderance of the evidence." This instruction shifted the burden of proof from the state to appellant on the issue of appellant's predisposition to commit the offense and, thus, does not conform to the law as announced in Shrader. We, therefore, conclude that reversal is warranted on this issue.
NRS 50.095 provides, in relevant part:
1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which he was convicted.
.... 6. A certified copy of a conviction is prima facie evidence of the conviction.
NRS 50.095 does not require that the judgment of conviction be presented before questioning a witness about prior felony convictions. We have, however, consistently held that the state may not ask the accused or a defense witness a question concerning a prior felony conviction if it is unprepared to prove the prior conviction with a copy of the judgment of conviction in the event that the conviction is denied. See Tomarchio v. State, 99 Nev. 572, 665 P.2d 804 (1983). We have not had occasion to consider whether this same rule applies when the defense is attempting to impeach a prosecution witness.
We conclude that a different standard applies when the defense is attempting to impeach a prosecution witness with proof of a prior felony conviction. In such a situation, the concerns of a possible prejudicial effect are not the same as when the prosecution is attempting to impeach the accused or a defense witness. The possibility of a resulting prejudicial impact is far greater for the accused than for the state. As stated by the Eighth Circuit of...
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