McKnight (Derrick) v. State ( 2015 )

 the Jack-in-the-Box. As the witness went to call 9-1-1, she observed the
two men walking around the drive-thru at the Jack-in-the-Box. After
placing the 9-1-1 call, she observed the two men running back to the white
car. From video surveillance photographs, the witness identified
McKnight and Burnside as the men she saw after the shooting based on
their clothing. She identified McKnight as the driver of the white car.
Other evidence connected McKnight to Hardwick's murder.
The clothing that McKnight and Burnside were wearing when they were
recorded by the Mandalay Bay surveillance cameras matched the clothing
worn by the men in the Jack-in-the-Box video surveillance. McKnight's
mother owned a white Mazda, which she had loaned to McKnight. After
the murder, McKnight approached a family friend, Albert Edmonds, and
asked Edmonds to store a car in Edmonds' garage. Edmonds agreed. The
following day, McKnight's mother retrieved the car from Edmonds' garage.
During a search of Edmonds' home police found 9mm ammunition in a
room in which McKnight had stayed in December 2006. Eight 9mm shell
casings had been recovered from the Jack-in-the-Box drive-thru, all fired
from a single firearm. McKnight's and Burnside's cell phone records
showed that calls made from or received by their cell phones in the hours
surrounding the murder were handled by cell phone towers near the
Mandalay Bay.
A jury convicted McKnight of first-degree murder with the use
of a deadly weapon, robbery with the use of a deadly weapon, conspiracy to
commit robbery, and burglary. He was sentenced to 35 to 156 months in
prison for robbery with the use of a deadly weapon, plus an equal and
consecutive term for the deadly weapon enhancement; 13 to 60 months in
prison for conspiracy to commit robbery; 22 to 96 months in prison for
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burglary; and life in prison without the possibility of parole for murder
plus an equal and consecutive term for the deadly weapon enhancement,
to run consecutively to the other counts. 1 This appeal followed.
McKnight raises several claims of trial error, all of which we
conclude lack merit for the reasons explained below.
Motion to impanel separate jury or sever trial
McKnight contends that the district court abused its
discretion by denying his motion to empanel a separate jury or,
alternatively, motion for severance. In particular, he argues that his Sixth
and Fourteenth Amendment rights to a fair and impartial jury were
violated because a death qualified jury determined his guilt. The United
States Supreme Court has rejected the argument that a defendant tried
with a codefendant who is facing the death penalty is deprived of his right
to an impartial jury when tried by a death qualified jury, see Buchanan v.
Kentucky, 483 U.S. 402, 419-20 (1987), and we have observed that under
Witherspoon v. Illinois, 391 U.S. 510, 520 n.18 (1968), we are "not required
to presume that a death-qualified jury is biased in favor of the
prosecution," McKenna v. State, 101 Nev. 338, 344, 705 P.2d 614, 618
(1985). Rather, a defendant bears "the burden of establishing the non-
neutrality of the jury." Id. McKnight makes no argument that any seated
juror was biased against him. Nor does he substantiate his claim that he
was deprived of his right to a jury that represents a fair cross-section of
the community due to the exclusion of jurors who could not qualify for a
capital trial. McKnight has not shown bias or non-neutrality by any juror,
1 McKnight and Burnside were tried together. Burnside was
sentenced to death for the murder.
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and he was not entitled to a severance of the trial solely because the jury
was death qualified. We further reject his contention that he was entitled
to a separate jury because it is not authorized by Nevada law. See Ewish
v. State, 110 Nev. 221, 232, 871 P.2d 306, 314 (1994). Therefore, the
district court did not abuse its discretion by denying his motion. See
Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008).
Batson challenges
McKnight contends that the district court abused its
discretion by denying his challenge to the prosecution's peremptory strikes
against three prospective jurors (nos. 124, 183, and 191) under Batson v.
Kentucky, 476 U.S. 79 (1986); see also Purkett v. Elem, 514 U.S. 765, 767
(1995) (summarizing the three-step Batson analysis), because the
prosecutor's reasons for striking the prospective jurors were a pretext for
racial discrimination. The prosecution's strikes against these jurors were
grounded in its assertions that each of the jurors provided inconsistent
views regarding the death penalty in their questionnaires as compared to
their answers during voir dire. We conclude that the record supports the
district court's determination that the prosecution proffered race-neutral
reasons for striking the three prospective jurors and that there was no
evidence of discrimination. Accordingly, the district court did not abuse
its discretion by denying McKnight's Batson challenges. Thomas v. State,
114 Nev. 1127, 1136-37, 967 P.2d 1111, 1117-18 (1998); Washington v.
State, 112 Nev. 1067, 1071, 922 P.2d 547, 549 (1996).
Sleeping juror
McKnight argues that the district court abused its discretion
by not conducting a hearing after being alerted that a juror was sleeping
during trial. At the close of evidence and the settling of instructions,
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Defense counsel advised the district court that juror 6 appeared to have
been sleeping "numerous times" during trial. The trial judge responded
that she had been keeping a close eye on the jurors to ensure that they
were paying attention and did not see juror 6 sleeping. We conclude that
McKnight has not shown that the district court abused its discretion by
not further investigating his allegation or granting relief. See United
States v. Sherrill, 388 F.3d 535, 537 (6th Cir. 2004) (reviewing district
court's decision in denying defendant's request to interview jury about
allegation of sleeping juror for abuse of discretion). The trial "court's own
contemporaneous observations of the juror may negate the need to
investigate further by enabling the court to take judicial notice that the
juror was not asleep or was only momentarily and harmlessly so." Santad
v. United States, 812 A.2d 226, 230 (D.C. 2002) (internal quotation marks
omitted); see also United States v. Carter, 433 F.2d 874, 876 (10th Cir.
1970). Because the trial judge in this case regularly observed the jurors
and never saw juror 6 sleeping, there was no need to investigate further.
In addition, McKnight did not bring the matter to the district court's
attention when the juror was believed to be sleeping, but waited until
sometime later, and even then he did not explain how long the juror had
been sleeping, identify what portions of the trial or critical testimony the
juror had missed, specify any resulting prejudice, or request a remedy of
any kind. Considering the district court's contemporaneous observations
and the totality of the surrounding circumstances, we conclude that the
district court did not abuse its discretion. 2
2 This court recently rejected a similar argument by codefendant
Burnside. Burnside v. State, 130 Nev., Adv. Op. 40, 352 P.3d 627, 638-39
(2015).
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Motion to suppress identification
McKnight argues that the district court erred by denying his
motion to suppress identification testimony from Syncerrity Ray. There
are two aspects to his claim. First, he contends that the detective involved
in a photographic lineup did not follow proper procedure. In this, he
points to the detective's statement during the identification procedure that
Ray "should not worry about being right or wrong" but should identify
anyone in the photographs that she believed she saw on the night of the
murder. McKnight also challenges the detective's suggestion that Ray
could identify someone from the photographs despite her statements that
"it was hard" and she "did not know." McKnight argues that the
detective's statements contravened instructions given to Ray that she did
not have to identify anyone in the photographs. Considering the
comments in context, we conclude that they did not render the
identification procedure suggestive, as the detective did not suggest to Ray
that she had to identify anyone in the photographs.
Second, McKnight argues that suppression was required
because an interview where Ray identified the two men involved in the
shooting from photographs was not recorded. Specifically, he contends
that the basis for the detective's decision not to record this particular
interview Ray's apprehension and fear—is not credible, as Ray had
previously participated in recorded police interviews. However, McKnight
provides no authority requiring the recording of Ray's interview. Nor does
he explain how the lack of a recording rendered the identification
procedure suggestive. Accordingly, we conclude that the district court did
not abuse its discretion.
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Annotation and narration of surveillance videos
McKnight argues that the district court abused its discretion
by allowing annotations to be placed upon video surveillance images and
by allowing police detectives to narrate the videos as they were played for
the jury, describing what the videos showed. He contends that the
annotation and narration invaded the province of the jury because the
detectives had no prior familiarity with him or Burnside and were in no
better position than the jurors to determine the identity of the men
depicted in the videos and whether the men were stalking Hardwick.
The police detectives' testimony that McKnight and Burnside
were the individuals in the surveillance videos and the alias annotations
were based on other identification evidence that was admitted before the
detectives testified, including descriptions of the clothes the men were
wearing when the murder occurred and the testimony of Stewart
Prestianni, who was familiar with Burnside and McKnight and their
aliases. Because the detectives did not independently identify the men,
they were not required to have some prior knowledge or familiarity with
the men or be qualified experts in videotape identification. Cf. Edwards v.
State, 583 So. 2d 740, 741 (Fla. Dist. Ct. App. 1991) (concluding that police
officer's testimony that he recognized defendant in videotape of drug sale
was inadmissible because there was no showing that officer had prior
knowledge or familiarity with defendant or was qualified as expert in
videotape identification). See generally Rossano u. State, 113 Nev. 375,
380, 934 P.2d 1045, 1048 (1997) (observing that lay witness's opinion
testimony concerning identity of person in surveillance photograph is
admissible under NRS 50.265 "if there is some basis for concluding that
the witness is more likely to correctly identify the defendant from the
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photograph than is the jury" (internal quotation marks omitted)). As to
McKnight's complaint that the detective was improperly allowed to opine
that the men in the videotape were surveilling Hardwick, the district court
admonished the jurors that the detective was expressing his opinion as to
the content of the Mandalay Bay surveillance video and that they would
have the opportunity to review the videos in the jury room and draw their
own conclusions as to what the videos showed. We discern no error. 3
McKnight also argues that the district court erred by refusing
to give his proposed instruction advising jurors that their interpretation of
the actions depicted in the videos is controlling, not the interpretation or
opinions of the State's witnesses. Considering the admonishment noted
above and other instructions on matters related to witness credibility and
believability, witnesses with special knowledge, and drawing reasonable
inferences from the evidence, McKnight has not shown that the district
court abused its discretion by rejecting his requested instruction. Jackson
v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).
Cell phone records
McKnight argues that the district court abused its discretion
by admitting the defendants' cell phone records, which showed the location
of cell phone towers that handled their cell phone calls, and by allowing a
cell phone company records custodian to testify about those records and
signal transmissions and a detective to testify about a map he created to
show the locations of the cell phone towers. In this, he contends that the
evidence amounted to expert testimony and neither of the prosecution's
3 Thiscourt rejected a similar argument by Burnside. Burnside, 352
P.3d at 639-40.
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notices of expert witnesses identified the records custodian and the
detective as experts.
We recently dealt with the scope of lay and expert witness
testimony in this matter in Burnside v. State, 130 Nev., Adv. Op. 40, 352
P.3d 627, 635-37 (2015); see NRS 50.265 (lay witness testimony); NRS
50.275 (expert witness testimony). Determining whether the challenged
evidence constitutes expert testimony "lies with a careful consideration of
the substance of the testimony—does the testimony concern information
within the common knowledge of or capable of perception by the average
layperson or does it require some specialized knowledge or skill beyond
the realm of everyday experience?" Burnside. 352 P.3d at 636.
As to the detective's testimony, he reviewed the cell phone
records and cell site information and used that data to create a map of
calls made with cell phones registered to McKnight and Burnside during
the time period relevant to the murder. The map showed that several
calls were made between Burnside's and McKnight's cell phones during
the early morning hours of December 5, 2006, and the signals related to
those calls were transmitted from cell sites near the Mandalay Bay. We
conclude here, as we did in Burnside, that the detective's testimony did
not fall within the scope of expert testimony and therefore the prosecution
had no obligation to notice the detective as an expert witness. Therefore,
the district court did not abuse its discretion in this regard.
As to the SprintiNextel record custodian, his testimony
centered on explaining to the jury how cell phone signals are transmitted
from cell sites. We concluded in Burnside that this testimony "is not the
sort that falls within the common knowledge of a layperson but instead
was based on the witness's specialized knowledge acquired through his
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employment." Id. at 637. Nevertheless, reversal of the judgment of
conviction is not warranted considering other evidence placed McKnight
and Burnside at Mandalay Bay during the relevant time period. See NRS
178.598 (harmless error rule); Valdez v. State, 124 Nev. 1172, 1189, 196
P.3d 465, 476 (2008) (observing that nonconstitutional error requires
reversal "only if the error substantially affects the jury's verdict"). 4
Jury instructions
McKnight argues that the district court abused its discretion
by giving several jury instructions, including instructions on robbery,
coconspirator statements, and "material elements" of the offenses, implied
malice, premeditation and deliberation, and equal and exact justice. He
also asserts that the district court erred by not giving his proposed
instruction.
Robbery
McKnight argues that the district court erred by overruling
Ins' objection to the robbery and felony-murder instructions because
robbery should be defined as a specific intent offense. He recognizes that
this court determined in Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226,
1228-29 29 (1981), disapproved on other grounds in Talancon v. State, 102
Nev. 294, 721 P.2d 764 (1986), that robbery is a general intent crime but
4 McKnight also challenges the admission of the cell phone tower
records based on lack of notice. While the substance of his argument is not
entirely clear, it appears that his complaint is linked to the prosecution's
failure to notice the records custodian and detective as experts. To the
extent that it is an independent claim, the prosecution's notice of lay
witnesses identified the Sprint/Nextel record custodian and the detective,
and he does not allege a discovery violation occurred with regard to
records.
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urges the court to overrule Litteral and return robbery to its common law
classification as a specific intent offense given the ambiguity in NRS
200.380 as to the requisite intent, the common law history, and the rule of
lenity. As we recently observed in Burnside, we are not persuaded to
depart from Litteral. 352 P.3d at 644.
McKnight further argues robbery should be treated as a
specific intent offense when it is used to support a felony-murder charge.
However, the Legislature saw fit to view robbery as involving dangerous
conduct that creates a foreseeable risk of death. It is that risk that makes
robbery an appropriate felony to support a felony-murder charge. 5
Coconspirator statements
McKnight contends that the district court's instruction
regarding the jury's consideration of a coconspirator's statements in
furtherance of a conspiracy confused and misled the jury to believe that he
could be convicted under a conspiracy theory based on slight evidence
rather than the constitutionally required beyond-a-reasonable-doubt
standard. We disagree. The instruction solely addresses the jury's
consideration of a coconspirator's statements in furtherance of a
conspiracy as evidence against another member of the conspiracy,
outlining the preconditions to the jury's consideration of the evidence,
including slight evidence that a conspiracy existed. See McDowell v. State,
103 Nev. 527, 529, 746 P.2d 149, 150 (1987); Peterson v. Sheriff, Clark
Cray, 95 Nev. 522, 524, 598 P.2d 623, 624 (1979). The instruction does not
5 To the extent McKnight contends that robbery should be treated as
a specific intent offense to satisfy the constitutionally required narrowing
function to impose a death sentence, his contention is irrelevant because
he was not subject to the death penalty.
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suggest that McKnight may be convicted of conspiracy or a conspiracy
theory of liability based on slight evidence instead of the constitutionally
required beyond-a-reasonable-doubt standard. Additionally, two other
instructions advised the jury that the State had to prove McKnight's guilt
beyond a reasonable doubt. Accordingly, the district court did not abuse
its discretion by giving the instruction. 6 See Crawford v. State, 121 Nev.
744, 748, 121 P.3d 582, 585 (2005).
"Material element"
McKnight contends that the district court abused its
discretion by giving instruction 38, which advised the jury in pertinent
part: "The Defendant is presumed innocent until the contrary is proved.
This presumption places upon the State the burden of proving beyond a
reasonable doubt every material element of the crime charged and that
the Defendant is the person who committed the offense." He argues that
because the instruction does not identify which elements are "material,"
the jury was left to speculate which elements were "material." In
Burnside, we concluded that although the "material element" language is
unnecessary given the prosecution's burden to prove all elements of an
offense beyond a reasonable doubt, that language did not suggest to the
jury that the prosecution "carried a lesser burden of proof on any element
or charged offense." 352 P.3d at 638. Where, as here, the instructions as a
whole make it clear that the prosecution must prove every element of the
crime, the reference to "material element" in the instruction is not so
misleading or confusing as to warrant reversal.
6 Thiscourt rejected a similar argument by Burnside. Burnside v.
State, 352 P.3d at 644.
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McKnight's proposed instruction
McKnight asserts that the district court abused its discretion
by not giving the jury the following proposed instruction: "There is no
legal duty to report to the authorities that another person had committed
a crime." The district court rejected the instruction, concluding that it was
duplicitous with other instructions. We agree. The jury was instructed
that mere presence at the scene or knowledge of a crime is insufficient to
establish guilt and that mere knowledge or approval of or acquiescence in
the purpose of a conspiracy is insufficient to impute criminal liability. In
addition, the jury was instructed on the elements of the offenses and the
prosecution's burden of proof. We conclude that these instructions
sufficiently resolved McKnight's apparent concern that his convictions
could rest upon his mere presence when the crimes occurred or his
knowledge of them.
Remaining instructions
McKnight challenges two instructions given regarding implied
malice and equal and exact justice; we have consistently upheld those
instructions. See, e.g., Leonard v. State, 117 Nev. 53, 79 1 17 P.3d 397, 413
(2001) (upholding implied malice instruction; Leonard v. State, 114 Nev.
1196, 1209, 969 P.2d 288, 296-97 (1998) (upholding equal and exact justice
instruction). He also challenges the first-degree murder instruction (no.
26), specifically that portion relating to premeditation. The instruction as
a whole comports with Byford v. State, 116 Nev. 215, 237-38, 994 P.2d 700,
714 (2000), and we are not persuaded to reconsider Byford.
Sentencing evidence
McKnight contends that the district court improperly
admitted, during sentencing, a preliminary hearing transcript related to a
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pending murder prosecution against him. Relying on Apprendi v. New
Jersey, 530 U.S. 466 (2000), he reasons that the prosecution improperly
used that evidence to enhance his sentence to life without the possibility of
parole. While the prosecution first introduced testimony regarding
McKnight's pending murder prosecution, McKnight introduced the
preliminary hearing transcript and therefore he cannot complain about its
admission. Moreover, as his sentence fell within the statutory limits, see
NRS 200.030(4)(b), evidence of a pending murder prosecution did not
violate Apprendi. Further, evidence of a defendant's other crimes is
admissible at sentencing as long as the evidence is not impalpable or
highly suspect, see Homiele v. State, 108 Nev. 127, 138, 825 P.2d 600, 607
(1992), and McKnight has not shown that evidence of his pending murder
prosecution is impalpable or highly suspect.
Having considered McKnight's arguments and concluded that
no , relief is warranted, we
ORDER the judgrit'of conviction AFFIRMED.'
/ sc\
,J.
Gibbons Pickering
'McKnight argues that cumulative error requires reversal of the
judgment of conviction. Because McKnight demonstrated only one error
regarding the testimony of the Sprint/Nextel records custodian, there are
no errors to cumulate.
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ittirtMgriA
cc: Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth Judicial District Court
Eighth District Court Clerk
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