Warren v. State, 43063.

Citation124 P.3d 522
Case DateDecember 15, 2005
CourtSupreme Court of Nevada

Philip J. Kohn, Public Defender, Craig F. Jorgenson, Chief Deputy Public Defender, and Mark S. Blaskey, Howard S. Brooks, and Craig D. Creel, Deputy Public Defenders, Clark County, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Martin W. Hart, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.



Willie Warren was charged with one count of conspiracy to commit robbery and one count of robbery. He was convicted of the robbery count and sentenced to a prison term of 72 to 180 months. On appeal, Warren contends that (1) the decoy operation resulting in his arrest constituted entrapment; (2) this court should reject the United States Supreme Court's holding in Luce v. United States,1 requiring a defendant to testify or waive any challenge to admissibility of impeachment evidence; and (3) the district court erred in permitting the State to use a certified minute order to rebut an entrapment defense and to impeach him if he testified.2

We conclude that Warren waived standing to raise the entrapment defense on appeal. We decline to follow Luce and instead adopt the offer of proof procedure outlined in Wickham v. State.3 Further, we conclude that the district court properly determined that the minute order would be admissible to rebut an entrapment defense, and although we conclude that the district court erred in finding that the minute order could be used for impeachment purposes, any error was harmless because the minute order would have been independently admissible. Accordingly, we affirm the conviction and sentence.


Decoy operation and resulting arrest

In November 2003, Las Vegas Metropolitan Police Officer Richard Gagnon posed as a decoy on Main Street between Carson and Lewis. Gagnon dressed as an off-duty casino dealer and placed a stack of twenty one-dollar bills in his dress shirt's left breast pocket, arranged so that they were visible to anyone near him. Gagnon then walked along Main Street, acting intoxicated and stopping periodically to lean against a wall and drink from a beer can.

While Gagnon was walking, Warren approached with his friend, Shelia Woods. Warren initiated a conversation with Gagnon and then placed his left hand on Gagnon's left shoulder. Gagnon rested his head on Warren's forearm. Gagnon felt Warren fishing around in Gagnon's left breast pocket with Warren's right hand while Warren continued talking. Gagnon attempted to see into his pocket, but Warren pushed Gagnon's head away with his forearm. Gagnon then felt and saw Warren take the money out of his pocket. Warren pushed Gagnon's head away again more forcefully, and Gagnon feared that Warren might punch him.

Warren and Woods then walked away, and Gagnon conveyed the bust signal. Officers arrested Warren and Woods, and a search revealed the money taken from Gagnon in Warren's back pocket. The State charged Warren and Woods each with one count of conspiracy to commit robbery and one count of robbery. Woods pleaded guilty; Warren pleaded not guilty.


At the outset of Warren's trial, the State inquired whether Warren intended to pursue an entrapment defense. If so, the State informed the court that it would use a certified minute order from a prior California conviction of Warren to rebut the defense by showing predisposition. Warren's counsel said that Warren would pursue an entrapment defense but objected to the relevancy of the prior conviction because the document was insufficient to establish that the person referenced in the conviction was Warren. Warren objected on no other grounds.

The court inquired whether the State would use the prior conviction for impeachment purposes, to which the State replied that it was only using it to rebut an entrapment defense. The court also inquired whether the State would use the prior conviction during its case-in-chief or on cross-examination. The State informed the court that it anticipated the entrapment defense would be raised through cross-examination and that it wanted to use the prior conviction during its case-in-chief. The court ruled that the State could use the California minute order in its case-in-chief as evidence of predisposition.

The State gave its opening statement without mentioning the California conviction. Warren's counsel reserved his opening statement. The State presented evidence on the events that led to Warren's arrest and the decoy operation. The State did not present the California conviction in its case-in-chief.

Warren's counsel informed the court that Warren would be testifying in his defense. The district court conducted the appropriate Fifth Amendment colloquy. Warren's counsel inquired whether the State would use the minute order of the California conviction for impeachment purposes if he testified. The State answered affirmatively. Warren's counsel renewed his objection that the prior conviction should be excluded on the basis of identity. The district court ruled that if Warren took the stand and presented an entrapment defense, the prior conviction could be used for both impeachment purposes and to show predisposition.

During a recess, the State informed the court that it also had a 1984 conviction for Warren from Washington. The State wished to use this conviction for impeachment and rebuttal purposes. In addition, the State wished to use the fingerprints and photo accompanying the Washington conviction to establish that the California minute order conviction referred to Warren.4 Warren objected.

The district court ruled that the California conviction was admissible, but prohibited the State from using the Washington conviction for impeachment or rebuttal purposes due to its remoteness in time. Warren did not testify, make an opening statement, or call any witnesses. Consequently, the California conviction was never offered for admission.

During the settling of jury instructions, the district court inquired whether an entrapment instruction was necessary. Warren's counsel stated that it was not necessary because he had not put on any evidence of entrapment. Neither party objected to any of the jury instructions.

At closing argument, Warren's counsel, having abandoned the entrapment defense, argued that the money could not be considered stolen because it was put in Gagnon's pocket with the purpose of being taken by someone else. Effectively, the money was being offered for people to take. Therefore, Warren could not have stolen something that someone was giving away for free.

Following argument and deliberation, the jury returned a verdict of not guilty on the one count of conspiracy to commit robbery and guilty on the one count of robbery.


Warren argues that his conviction should be set aside based on an entrapment defense. He also contends that we should reject the holding of Luce and find that he has not waived his right to contest the district court's ruling on the admission of impeachment evidence. Finally, Warren asserts that the district court erred by finding a certified minute order reflecting a prior conviction could be admitted to rebut an entrapment defense and impeach him if he took the stand to testify.

Entrapment defense

Warren argues that the Las Vegas Metropolitan Police Department's decoy operation constituted entrapment. Because Warren failed to present an entrapment defense below, we conclude that he has waived this argument on appeal.

Entrapment is an affirmative defense.5 When an affirmative defense is not raised in the district court, argument pertaining to that defense is waived on appeal.6 Although at the outset of trial, Warren declared his intention to pursue an entrapment defense, he abandoned this defense at the close of trial when he did not request an entrapment instruction. Warren therefore waived his entrapment argument on appeal.7

Applicability of Luce

Warren argues that the district court erred by permitting the State to use the minute order of his California conviction for impeachment purposes. Warren contends that the court's ruling prevented him from testifying. The State argues that Warren failed to preserve this issue for appeal because he did not testify. The State urges this court to adopt the United States Supreme Court's holding in Luce,8 which would preclude our review of the issue. Warren suggests that this court should not adopt Luce's holding because our decision in Pineda v. State9 is at odds with Luce.

In Luce, the Supreme Court held as a matter of federal evidence law that in order to "raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify."10 The Court offered two primary reasons in support of its holding.

The first reason involves the weighing of probative value versus prejudicial effect. The Court reasoned that without a defendant's trial testimony, there is an insufficient record from an in limine ruling to determine whether the trial court properly weighed the probative value of the impeachment evidence against its prejudicial effect.11 The precise nature of the defendant's testimony is necessary to perform the balancing.12

The second, and more fundamental reason involves the appellate court's ability to conduct harmless error review. The Court concluded that any harm resulting from a trial court's erroneous in limine ruling would be speculative absent the defendant's testimony.13 And, the Court reasoned that even a proffer of the defendant's intended testimony would be insufficient to determine whether the error was harmless because a defendant's testimony could differ from the proffer.14 Further, the trial court might have changed...

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  • State v. Holley
    • United States
    • Supreme Court of Connecticut
    • January 12, 2018
    ..., 139 Idaho 579, 582, 83 P.3d 123 (App. 2003) (requiring offer of proof in lieu of testimony); Warren v. State , 121 Nev. 886, 894–95, 124 P.3d 522 (2005) (suggesting that extensive offer of proof that would furnish a "sufficient record" to address "problems identified in Luce "); cf. State......
  • State v. Schnabel
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    ...such conditions, a reviewing court would have a sufficient record to conduct a harmless error analysis. Warren v. State, 121 Nev. 886, 124 P.3d 522, 527 (2005) (emphases added). In the instant case, it would be unwise to "apply" a rule that, in effect compelled Petitioner to make an "unfair......
  • State v. Amidon
    • United States
    • United States State Supreme Court of Vermont
    • August 29, 2008
    ..."constitutionally suppressed evidence").3 ¶ 13. We note that our sister states have not uniformly adopted Luce. See Warren v. State, 121 Nev. 886, 124 P.3d 522, 527 (2005) (collecting cases and reporting the adoption of Luce by courts Arizona, Arkansas, California, Colorado, Connecticut, De......
  • State v. Derby
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    ...... See Ohler, 529 U.S. at 761, 120 S.Ct. at 1856, 146 L.Ed.2d at 833 (Souter, J., dissenting) (noting Ohler raises none of the “practical difficulties” implicated in Luce ); Warren v. State, 121 Nev. 886, 124 P.3d 522, 527 (2005) (noting defendant's affirmative testimony on prior convictions raises different issues than defendant's decision not to testify). Moreover, Daly is not new law in this state. Daly was a mere affirmation of settled law that predated Brown. ......
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