Miller v. State

Citations: 110 P.3d 53; 121 Nev. 92; 121 Nev. Adv. Rep. 10; 2005 Nev. LEXIS 12Docket: 43192

Court: Nevada Supreme Court; April 28, 2005; Nevada; State Supreme Court

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Richard William Miller appealed his conviction for larceny from the person, stemming from an undercover operation by the Las Vegas Metropolitan Police Department (LVMPD) aimed at reducing street-level robberies. During the operation, Detective Jason Leavitt, disguised as an intoxicated vagrant, displayed a small amount of cash to entice a potential thief. On July 29, 2003, Miller approached Leavitt, attempted to solicit money, and then stole twenty dollars from him. Following his arrest, Miller was convicted after a two-day trial and sentenced to a maximum of 32 months and a minimum of 12 months in prison.

On appeal, Miller contended that he had been entrapped and claimed prosecutorial misconduct, including comments on his choice not to testify. The court ruled that Miller was not entrapped, explaining that entrapment requires the state to present an opportunity to commit a crime to someone who is not predisposed to do so. The court clarified that while undercover operations are lawful, they must not lead an innocent person to commit a crime. Ultimately, the court found no evidence of entrapment in Miller's case.

In DePasquale v. State, the court differentiated between permissible undercover police operations and entrapment based on the vulnerability of a decoy. Previous cases established that when a decoy appears helpless, intoxicated, or feigns unconsciousness, it can indicate entrapment. However, in this case, the defendant, Miller, was not entrapped when he stole from Detective Leavitt, an undercover officer who was not feigning unconsciousness and had money discreetly stored rather than openly displayed. The incident occurred in Las Vegas, where Miller approached Detective Leavitt and, after being refused money, quickly pickpocketed twenty dollars. The court concluded that the police acted properly, as the opportunity to commit the crime was not improper and was only available to someone predisposed to commit theft. 

Miller's actions indicated a predisposition to larceny, supported by five factors considered to assess predisposition: (1) the defendant's character, (2) who initiated the criminal activity, (3) whether the crime was for profit, (4) any reluctance shown by the defendant, and (5) the nature of government inducement. Although Miller's character was not fully established, he initiated the interaction and engaged in theft for profit without any reluctance. The analysis favored the conclusion that Miller was predisposed to commit larceny, thus he was not entrapped.

Miller's request for a new trial based on claims of improper comments by the State regarding his failure to testify was denied. The prosecutor's statement during opening arguments clarified that the defense was not required to present evidence and outlined the State’s burden to prove guilt beyond a reasonable doubt. Since defense counsel did not object to the statement at trial, Miller waived his right to challenge it on appeal. The court referenced prior rulings establishing that appellate review is generally limited to issues properly preserved by objection. 

Miller’s argument that the prosecutor's comments minimized the State’s burden was rejected, as he did not demonstrate that the comments were prejudicial or substantial enough to affect the trial's outcome. Additionally, claims of prosecutorial misconduct for describing Miller as dangerous and a predator were found to lack merit. The court emphasized that prosecutorial comments must be evaluated in context, and a new trial would only be warranted if the misconduct was clearly substantial and prejudicial. Miller also failed to object to other statements made by the prosecutor, leading to further waiver of his claims. Overall, the court upheld the trial's integrity, asserting that Miller did not meet the burden of proving any prejudicial error.

Defense counsel objected to the prosecutor's assertion regarding the defendant's actions, stating there was no evidence that the defendant was seeking to prey on others. The court did not formally rule on the objection, allowing the prosecutor to continue. The conclusion reached was that the prosecutor's comments did not constitute prejudicial error, as they could argue inferences supported by evidence. The case involved Miller, charged with larceny, and the evidence justified the characterization of him as preying on others through theft. Therefore, any potential error in the prosecutor's statement was deemed harmless. The court affirmed that Miller was not entrapped, noting he was predisposed to commit larceny. Additionally, there was no improper comment on Miller's failure to testify, nor prosecutorial misconduct in suggesting he was dangerous. The conclusion reaffirms the two-part test for entrapment and highlights the importance of timely objections to alleged prejudicial remarks.