Warren v. State
124 P.3d 522, 121 Nev. 886 (2005)
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Rule of Law:
A defendant may preserve for appellate review a claim of improper impeachment with a prior conviction, even without testifying, by making an offer of proof that outlines the intended testimony and makes it clear from the record that the defendant would have testified but for the court's adverse in limine ruling.
Facts:
- In November 2003, Las Vegas Police Officer Richard Gagnon conducted a decoy operation disguised as an intoxicated casino dealer.
- Gagnon placed a stack of twenty one-dollar bills in his shirt's breast pocket, arranged to be visible.
- Willie Warren approached Gagnon, initiated a conversation, and placed a hand on Gagnon's shoulder.
- While conversing with Gagnon, Warren used his other hand to take the money from Gagnon's pocket.
- Warren pushed Gagnon's head away when Gagnon tried to look into his pocket.
- After Warren and his friend Shelia Woods walked away, Gagnon gave a prearranged signal, and officers arrested Warren.
- A search of Warren revealed the twenty one-dollar bills taken from Gagnon in Warren's back pocket.
Procedural Posture:
- The State charged Willie Warren in district court (trial court) with one count of conspiracy to commit robbery and one count of robbery.
- Before trial, the State indicated its intent to use a prior California conviction to rebut Warren's planned entrapment defense.
- The district court made a pre-trial (in limine) ruling that the State could use a certified minute order of the prior conviction to show predisposition.
- After Warren indicated he would testify, the district court ruled that the same minute order could also be used for impeachment purposes.
- As a result of the court's ruling, Warren chose not to testify and abandoned his entrapment defense.
- A jury found Warren not guilty of conspiracy but guilty of robbery.
- Warren was sentenced and subsequently appealed his conviction to the Supreme Court of Nevada.
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Issue:
Does a defendant waive the right to appeal a trial court's in limine ruling to admit a prior conviction for impeachment purposes if the defendant chooses not to testify as a result of that ruling?
Opinions:
Majority - Becker, C. J.
No, a defendant does not waive the right to appeal an in limine ruling on impeachment evidence by declining to testify, provided a sufficient record is made. This court rejects the federal standard from Luce v. United States, which requires a defendant to testify to preserve such a claim. Instead, the court adopts the 'offer of proof' procedure from Wickham v. State, which allows for meaningful appellate review without forcing the defendant into the 'catch-22' of testifying and being impeached or remaining silent and waiving the issue. In this case, the district court erred by ruling that a minute order was sufficient to prove a prior conviction for impeachment, as a formal judgment of conviction is required. However, the error was harmless because the minute order would have been properly admitted anyway to rebut Warren's intended entrapment defense by showing his predisposition to commit the crime.
Concurring - Maupin, J.
While agreeing with the ultimate outcome of affirming the conviction, the concurring justices would have applied the federal standard from Luce v. United States and held that Warren waived his claim by declining to testify. They believe that a defendant who chooses not to testify after an adverse in limine ruling cannot preserve the issue for appeal. However, because the majority reaches the same result through a different analysis (finding harmless error), they concur only in the judgment.
Analysis:
This decision marks a significant departure from the federal standard established in Luce v. United States, creating a more defendant-friendly procedure in Nevada for challenging pre-trial evidentiary rulings. By adopting the Wickham 'offer of proof' approach, the court allows defendants to appeal adverse impeachment rulings without having to first subject themselves to the prejudicial testimony they are challenging. This precedent establishes a clear, two-part test for preserving the issue for appeal, thereby protecting a defendant's right to testify and their right to appeal from being pitted against each other. It also clarifies the distinction between the types of evidence admissible for impeachment (judgment of conviction) versus rebuttal of an entrapment defense (minute order).
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