Burnside v. State

131 Nev., Advance Opinion 40
IN THE SUPREME COURT OF THE STATE OF NEVADA
TIMOTHY R. BURNSIDE, No: 56548
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JUN 2 5 2015
c _ JE K LINDEMAN
BY_
CHIEF DEP bLERK
Appeal from a judgment of conviction in a death penalt3kiase.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Affirmed.
David M. Schieck, Special Public Defender, and JoNell Thomas, Alzora
Jackson, and Michael W. Hyte, Deputy Special Public Defenders, Clark
County,
for Appellant
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Jonathan E. VanBoskerck, Chief Deputy District
Attorney, and Marc P. DiGiacomo and Nancy Becker, Deputy District
Attorneys, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, GIBBONS, J.:
Appellant Timothy Burnside, along with his companion
Derrick McKnight, robbed and shot to death Kenneth Hardwick. A jury
convicted Burnside of first-degree murder with the use of a deadly
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weapon, burglary, conspiracy to commit robbery, and robbery with the use
of a deadly weapon and sentenced him to death. In this opinion, we focus
primarily on three issues.
First, we consider whether the district court erred by
admitting testimony related to cell phone records and cell phone signal
transmissions because the State failed to notice its witnesses as experts.
We conclude that the cell phone company employee's testimony related to
how cell phone signals are transmitted constituted expert testimony
because it required specialized knowledge. In contrast, we conclude that a
police officer's testimony about information on a map that he had created
to show the location of the cell towers used by the defendants' cell phones
constituted lay testimony. Although the State did not notice the cell
phone company employee as an expert, we conclude that the error does not
warrant reversal of the judgment of conviction.
Second, we consider whether the district court erroneously
instructed the jury that the State had the burden of proving the "material
elements" of an offense beyond a reasonable doubt without defining
"material elements." Although the phrase "material elements" is
unnecessary and should be omitted in future instructions, we conclude
that the instruction is not so misleading or confusing as to warrant
reversal.
Third, we consider whether Burnside's prior conviction for
attempted battery with substantial bodily harm constitutes "a felony
involving the use or threat of violence to the person of another" for
purposes of the aggravating circumstance set forth in NRS 200.033(2)(b).
We conclude that a conviction for an attempt to commit a violent felony
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may fall within the purview of NRS 200.033(2)(b) if the State establishes
that the overt act required for the attempt involved the use or threat of
violence. Consistent with our decision in Redeker v. Eighth Judicial
District Court, 122 Nev. 164, 172, 127 P.3d 520, 525 (2006), because the
prior conviction was based on a guilty plea, the fact-finder could consider
the charging documents, "written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented" underlying the prior conviction. Based on the
evidence that could be considered in this case, the State failed to establish
that Burnside's prior conviction for attempted battery with substantial
bodily injury involved the use or threat of violence. Accordingly, this
aggravating circumstance is invalid. The jury's consideration of this
invalid aggravating circumstances does not, however, warrant reversal of
the death sentence as the jury found no mitigating circumstances to weigh
against the remaining aggravating circumstance and could consider the
prior conviction and the circumstances underlying it in selecting the
appropriate sentence in this case.
After considering these and Burnside's remaining claims of
error and reviewing the death sentence as required by NRS 177.055(2), we
conclude that Burnside is not entitled to relief from the judgment of
conviction and death sentence. We therefore affirm the judgment of
conviction.
FACTS AND PROCEDURAL HISTORY
The victim in this case, Kenneth Hardwick, was a former
professional basketball player who was known to carry quite a bit of cash,
wear expensive clothing and jewelry, and carry cigars in a silver traveling
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humidor. In the early morning of December 5, 2006; Hardwick was at the
Foundation Room Lounge at the Mandalay Bay Resort and Casino in Las
Vegas. Around 3:30 a.m., Burnside and McKnight entered the Foundation
Room Lounge. About 30 minutes later, Hardwick left the Foundation
Room Lounge and got in an elevator. McKnight followed Hardwick into
the elevator. After exiting the elevator, Hardwick approached the west
valet stand to retrieve his car, and McKnight reunited with Burnside in
the casino and then walked to the parking garage near the west valet
stand. At the valet stand, Hardwick noticed that an acquaintance was
involved in a disagreement over a missing valet ticket, and he attempted
to negotiate the dispute. Meanwhile, Burnside and McKnight got into a
white Mazda, parked in a no-parking zone, and watched Hardwick for
about an hour. When Hardwick eventually exited the parking structure,
Burnside and McKnight followed him
A short time later, Hardwick pulled up to a Jack-in-the-Box
drive-thru window. At the time, Hardwick was speaking on his cell phone
with his child's mother, who heard loud bangs over the phone. A video
recording obtained from a surveillance camera showed a man wearing a
"puffy" black jacket point a gun and shoot into Hardwick's car several
times. Hardwick approached the drive-thru window, indicating that he
had been shot. Hardwick suffered four gunshot wounds to his chest and
both arms. While the gunshot wound to his chest caused the most damage
to his body, all of the wounds resulted in great blood loss and contributed
to his death.
Two Jack-in-the-Box employees heard the gunshots. One of
the employees called 9-1-1 and reported that two men were involved in the
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shooting. One of the employees saw one of the men retrieve a silver case
from Hardwick's car.
Another witness heard the gunshots as she was walking to her
car in a nearby parking lot. Shortly thereafter, she noticed a white car
pull up next to her. The passenger exited the car, placed a gun in the car,
and took off a black "puffy" jacket and put it in the car. The driver got out
of the car and also removed a black "puffy" jacket and put it in the car.
The two men ran in the direction of 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. About a week later, the police
showed the witness a set of photographs, and she tentatively identified
McKnight as the driver of the white car but was unable to identify the
passenger. Subsequently, after reviewing still photographs taken from the
surveillance videos obtained from the Mandalay Bay, she was able to
identify Burnside and McKnight as the men she saw after the shooting
based on their clothing.
Other evidence linked Burnside to Hardwick's murder. The
clothing that Burnside and McKnight 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. In
December 2006, 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
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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. During a search of Burnside's
mother's home, the police recovered a day planner with a handwritten
entry dated February 16, 2007, that suggested that Burnside's photograph
had been shown on "Crime Stoppers." Additionally, Burnside's and
McKnight'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.
The State charged Burnside with murder with the use of a
deadly weapon, burglary, conspiracy to commit robbery, and robbery with
the use of a deadly weapon. The jury convicted him of first-degree murder
with the use of a deadly weapon and the remaining charged offenses.
The State also sought the death penalty for the murder. It
alleged two aggravating circumstances: (1) Burnside had a prior conviction
for a violent felony (attempted battery with substantial bodily harm in
2002), and (2) the murder was committed during the perpetration of a
robbery.' The prosecution's evidence in aggravation primarily related to
the circumstances of the crime as support for the felony aggravating
circumstance under NRS 200.033(4). Respecting the prior-violent-felony
conviction, the prosecution introduced the preliminary hearing testimony
'The State included a third aggravating circumstance in its notice of
intent to seek the death penalty—that the murder was committed during
the perpetration of a burglary—but withdrew that aggravating
circumstance at the start of the penalty hearing.
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of the prior victim, Tyyanna Clark. Burnside pleaded guilty to attempted
battery with substantial bodily harm. As other matter evidence
admissible under NRS 175.552(3), the prosecution introduced evidence of
Burnside's conduct in prison and his juvenile and adult criminal history,
which included arrests and/or convictions/citations for a litany of violent
and nonviolent offenses. Finally, the prosecution presented victim-impact
testimony from Hardwick's girlfriend, older brother Clifford, and his
nephew Jamil. The jury learned that Hardwick had gone to college on a
basketball scholarship, played professional basketball, and had four
children. He was described as the "heart and soul" of the family and the
life of the party with an infectious personality. He spoke with his parents
and children daily. The witnesses also described the emotional
devastation that Hardwick's family experienced over his loss.
Burnside's mitigation evidence focused primarily on his
childhood, which was described by several family members. Although
Burnside's siblings lived with their mother, he lived with an aunt when he
was a young boy. His mother explained that she loved him but that his
aunt lived nearby, was very attached to him, and wanted him to live with
her. Burnside was very happy living with his aunt; family members
testified that she spoiled him. A cousin who lived with him at the time
described him as moody, smart, funny, and humble. When Burnside was
eight years old, his aunt passed away. Devastated by her death, he
became aggressive and difficult to handle. Through the rest of his
minority, Burnside moved around frequently and lived with different
relatives. Like other members of his family, he became involved with
drugs and alcohol. According to one of his brothers, an uncle was brutally
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murdered and "that's what messed up all of us." Burnside got into a fight
at age 15 and was shot three times. Two years later, he was stabbed
several times at a casino in Las Vegas. He was stabbed yet again in
another incident several years later. His mother testified that Burnside
was smart and an A student, but his school records showed that he
occasionally received Bs, Cs, and Fs, with some improvement when he was
at the Spring Mountain Youth Camp. His family expressed their love for
him and asked the jury to spare his life.
The defense also called a corrections officer to describe the
conditions in prison. Based on Burnside's record as a youth offender,
which included infractions for fighting and property violations ("things
associated with gang activity"), the witness opined that Burnside could be
safely housed at Ely State Prison for life.
The jury found both aggravating circumstances. Although the
defenseS offered 17 mitigating circumstances, none of the jurors found any
mitigating circumstances. After concluding that "the aggravating
circumstance or circumstances outweigh [ed] any mitigating circumstance
or circumstances," the jury imposed a death sentence for the murder. 2
This appeal followed.
2The district court later sentenced Burnside to concurrent terms of
26 to 120 months for burglary and 16 to 72 months for conspiracy to
commit robbery and two consecutive terms of 40 to 180 months for robbery
with the use of a deadly weapon to be served concurrently to the burglary
and conspiracy-to-commit-robbery sentences.
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DISCUSSION
Burnside argues that a plethora of errors occurred during the
guilt and penalty phases of the trial. Although we address all of the
claimed errors, we focus on three in particular. As to the guilt phase, we
focus on his claims that (1) the district court erred by admitting testimony
related to cell phone tower transmissions because the testimony fell within
the realm of expert testimony and the State had not noticed its witnesses
as experts and (2) the district court erroneously instructed the jury that
the State had the burden of proving the "material elements" of an offense
beyond a reasonable doubt without defining "material elements." As to
the penalty phase, we focus on his challenge to the validity of the prior-
violent-felony-conviction aggravating circumstance based on his conviction
for attempted battery with substantial bodily injury.
Guilt phase claims
Admission of cell phone tower records and testimony
Burnside 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. He complains that this
evidence amounted to expert testimony, and because the State failed to
notice the cell phone records custodian and the detective as expert
witnesses, the evidence should have been excluded.
The State's notices of expert witnesses did not list any cell
phone records custodians; its notice of lay witnesses identified records
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custodians from four cell phone companies. When a records custodian for
Sprint/Nextel began testifying at trial about cell phone tower locations,
defense counsel objected because the witness had not been included in the
State's notices of expert witnesses. Similarly, when the defense learned at
trial that a detective would testify about information on a map that he had
created to show the location of the cell phone towers used by the
defendants' cell phones on the night of the murder, defense counsel
objected that the detective would be providing expert testimony but the
State had not noticed him as an expert. The district court overruled both
objections, concluding that the Sprint/Nextel records custodian and the
detective were not offering expert testimony.
Our review of the district court's ruling hinges on whether the
witnesses testified as lay witnesses or as expert witnesses. The scope of
lay and expert witness testimony is defined by statute. A lay witness may
testify to opinions or inferences that are "[nationally based on the
perception of the witness; and . . [h]elpful to a clear understanding of the
testimony of the witness or the determination of a fact in issue." NRS
50.265. A qualified expert may testify to matters within their "special
knowledge, skill, experience, training or education" when "scientific,
technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue." NRS 50.275.
The key to determining whether testimony about information gleaned
from cell phone records constitutes lay or 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
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specialized knowledge or skill beyond the realm of everyday experience?
See Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979)
(observing that lay witness may not express opinion "as to matters which
are beyond the realm of common experience and which require the special
skill and knowledge of an expert witness"); Fed. R. Evid. 701 advisory
committee's note (2000 amend.) ("[T]he distinction between lay and expert
witness testimony is that lay testimony results from a process of reasoning
familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field." (internal
quotation marks omitted)); State v. Tierney, 839 A.2d 38, 46 (N.H. 2003)
("Lay testimony must be confmed to personal observations that any
layperson would be capable of making.").
We first consider the detective's testimony. The detective
reviewed the cell phone records and cell site information and used that
data to create a map showing the locations of the cell phone sites that
handled calls from the cell phones registered to Burnside and McKnight
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. Burnside did not object to the admission of the map but objected to
the detective's testimony explaining the information reflected on the map
on the ground that he was not an expert. We conclude that the map and
the detective's testimony were not based on specialized knowledge or
reasoning that can be mastered only by a specialist and therefore the
State was not required to notice the detective as an expert witness. See
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United States v. Baker, 496 F. App'x 201, 204 (3d Cir. 2012) (concluding
that federal agent's testimony as to his use of computer mapping software
to create map of defendant's location from cell phone records did not
involve expert testimony); United States v. Evans, 892 F. Supp. 2d 949,
953 (N.D. Ill. 2012) (concluding that federal agent could provide lay
opinion testimony regarding his creation of maps showing location of cell
towers used by defendant's cell phone in relation to other locations
relevant to crime because creating maps did not "require scientific,
technical, or other specialized knowledge"); Gordon v. State, 863 So. 2d
1215, 1219 (Fla. 2003) (concluding that police officer's comparison of
locations on cell phone records to locations on cell site maps did not
constitute expert testimony). Therefore, the district court did not err by
admitting the detective's testimony as that of a lay witness.
The Sprint/Nextel record custodian's testimony is a different
matter. The witness explained how cell phone signals are transmitted
from cell sites and that generally a cell phone transmits from the cell site
with the strongest signal, which is typically the cell site nearest to the cell
phone placing the phone call. He also explained that there are
circumstances when the cell site nearest the cell phone is not used, such as
when there is an obstruction between the cell phone and cell site or when
a nearby cell site is busy. 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 employment.
Because that testimony concerned matters beyond the common knowledge
of the average layperson, his testimony constituted expert testimony.
Other courts have reached the same conclusion. See, e.g., United States v.
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Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011) (concluding that
"testimony concerning how cell phone towers operate constituted expert
testimony because it involved specialized knowledge not readily accessible
to any ordinary person"); Wilder v. State, 991 A.2d 172, 198 (Md. Ct. Spec.
App. 2010) (concluding that to admit evidence of cell phone cite location,
prosecution must offer expert testimony to explain functions of cell phone
towers, derivative tracking, and techniques of locating and/or plotting
origins of cell phone calls using cell phone records); Wilson v. State, 195
S.W.3d 193, 200-02 (Tex. Ct. App. 2006) (involving admission of cell phone
records custodian's expert testimony explaining transmission of cell phone
signals and which cell phone towers received signals from defendant's cell
phone). Therefore, the State was required to provide notice pursuant to
NRS 174.234(2) that the records custodian would testify as an expert
witness. It failed to do so, instead including the records custodian on its
notice of lay witnesses. Burnside, however, has not explained what he
would have done differently had proper notice been given, and he did not
request a continuance. See NRS 174.295(2). We are not convinced that
the appropriate remedy for the error would have been exclusion of the
testimony. See id. But even if that were the appropriate remedy, we also
are not convinced that the admission of the evidence substantially affected
the jury's verdict considering that the cell phone evidence was cumulative
to the Mandalay Bay video surveillance evidence and the testimony of
Stewart Prestianni, both of which placed Burnside and McKnight 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
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if the error substantially affects the jury's verdict"); see also Kotteakos v.
United States, 328 U.S. 750, 776 (1946).
"Material elements" of the charged offenses
Burnside challenges an instruction that is often used in
criminal trials in this state: "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 complains that the instruction does not explain which
elements are "material" and therefore left the jury to speculate which
elements were "material." According to Burnside, the instruction thereby
lessens the State's burden of proof Although this court has upheld the
challenged language on numerous occasions, see, e.g., Nunnery v. State,
127 Nev., Adv. Op. 69, 263 P.3d 235, 259-60 (2011); Morales v. State, 122
Nev. 966, 971, 143 P.3d 463,466 (2006); Crawford v. State, 121 Nev. 744,
751-52, 121 P.3d 582, 586-87 (2005); Gaxiola v. State, 121 Nev. 638, 649-
50, 119 P.3d 1225, 1233 (2005); Leonard v. State, 114 Nev. 1196, 1209; 969
P.2d 288, 296 (1998), we have not addressed the particular argument
raised here.
An Oklahoma court has considered an instruction similar to
the one used in this case. In Phillips v. State, the defendant complained
that an instruction advising the jury that "the State is required to prove
beyond a reasonable doubt 'the material allegations of the Information',
and that the defendant is presumed innocent of the crime charged against
him and innocent of 'each and every material element constituting such
offense' [was] reversible error" because "the instruction allowed the jury to
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deduce [that] the presumption of innocence did not apply to every element
of the offense, but only to the elements it deemed material." 989 P.2d
1017, 1037-38 (Okla. Grim. App. 1999). The court acknowledged that the
"material allegations" language might be confusing. Id. at 1038. But the
court rejected the defendant's characterization of the instruction in light of
other instructions that set forth the specific elements of the charged
offense and made clear that the presumption of innocence carried through
all elements of the offense. Id. Therefore, according to the court, any
error in the instruction was harmless. Id. We agree with the Oklahoma
court.
Here, the district court instructed the jury on the elements of
each of the offenses charged and that the State had the burden to prove
those elements. No other instruction or any argument by the parties
suggested that the State's burden on any element or offense was less than
beyond a reasonable doubt. Absent an instruction advising that it could
do so, we are not convinced that the phrase "material element" caused the
jury to speculate that it could choose which of the elements should be
proven beyond a reasonable doubt and which ones need not be. Taking the
instructions as a whole, they sufficiently conveyed to the jury that the
State had the burden of proving beyond a reasonable doubt each element
of the charged offenses and the phrase "material element" did not signal to
the jury that the State carried a lesser burden of proof on any element or
charged offense. Although the phrase "material element" is unnecessary
because the State must prove all elements of an offense beyond a
reasonable doubt, see Watson v. State, 110 Nev. 43, 45, 867 P.2d 400, 402
(1994); State v. Reynolds, 51 P.3d 684,686 (Or. Ct. App. 2002) ("In a sense,
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the term 'material element' in its legal usage is something of a
redundancy. If an allegation is truly an 'element' of a crime, by definition,
it is 'material.' But the point of the legislature's use of the term seems
clear enough: A 'material element' is one that the state must prove to
establish the crime charged."), and therefore should be omitted from
future instructions, we conclude that the instruction is not so misleading
or confusing as to warrant reversal.
Remaining guilt phase claims
Severance
Burnside argues that the district court abused its discretion
by refusing to sever his trial from McKnight's and that he was prejudiced
as a result of that error in three respects. First, he argues that he was
compelled to share peremptory challenges with McKnight despite their
disparate goals during jury selection. However, there is no constitutional
right to peremptory challenges; they "arise from the exercise of a privilege
granted by the legislative authority." Anderson v. State, 81 Nev. 477, 480,
406 P.2d 532, 533 (1965). In Nevada, the "legislature has seen fit to treat
several defendants, for [the purpose of peremptory challenges], as one
party." Id.; see NRS 175.041. Second, he argues that the evidence against
him was marginal compared to that against McKnight. His
characterization of the evidence is not borne out by the record. Third, he
contends that the joint trial precluded his cross-examination of
McKnight's mother, Valerie Freeman, about incriminating statements
McKnight made to her and precluded him from cross-examining McKnight
about those statements. Freeman's testimony was not of such significance
that severance was required, and, as addressed below, McKnight's
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statements were not testimonial because they were made in furtherance of
a conspiracy. Because nontestimonial statements are not subject to the
confrontation clause, United States v. Figueroa-Cartagena, 612 F.3d 69, 85
(1st Cir. 2010), Burnside had no constitutional right to cross-examine
McKnight about those statements, see Crawford v. Washington, 541 U.S.
36, 55-56 (2004). Accordingly, the district court did not abuse its
discretion in this regard. See Chartier v. State, 124 Nev. 760, 764, 191
P.3d 1182, 1185 (2008) (applying abuse of discretion standard to NRS
174.165(1) severance issue).
Allegation that a juror was sleeping
Burnside complains that the district court abused its
discretion by not conducting a hearing after being alerted that a juror was
sleeping during trial. Defense counsel advised the district court on three
occasions during the guilt phase that juror 6 appeared to be sleeping.
Each time, 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
any of them sleeping. We conclude that Burnside 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 jury for
abuse of discretion). As another court has explained, 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." Samad
v. United States, 812 A.2d 226, 230 (D.C. 2002) (internal quotation marks
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omitted); see also United States v. Carter, 433 F.2d 874, 876 (10th Cir.
1970) (concluding that where trial judge indicated that she watched
subject juror closely and was convinced that juror was not asleep, "[t]he
conduct of the juror in open court was a matter of which the trial court
had judicial knowledge and could take judicial notice"). Because the trial
judge in this case regularly observed the jurors and never saw juror 6
sleeping, there was no need to investigate further. Other circumstances
support our conclusion that further investigation was unwarranted:
Burnside 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 cannot fault the district
court's handling of the situation.
Annotation and narration of surveillance videotapes
Burnside argues that the district court abused its discretion
by allowing annotations to be made to video surveillance images and by
permitting police detectives to narrate the video surveillance tapes as they
were played for the jury, describing what the tapes depicted. Burnside
complains that the police detectives who identified him as one of the
people in the videos had no prior familiarity with him and therefore could
not properly identify him and the narration and annotation of the video
with his and McKnight's aliases invaded the province of the jury. We
conclude that the district court did not abuse its discretion in this regard.
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The police detectives' testimony that Burnside and McKnight
were the individuals in the surveillance videos and the alias annotations
were based on other identification evidence that was admitted before the
detectives testified. The identification evidence included 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. This is not a situation where the detectives
independently identified Burnside and McKnight, which would require
that they have some prior knowledge or familiarity with the men or were
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 Rossana v. 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 MRS 50.265 "if there is some basis for concluding that the witness is
more likely to correctly identify the defendant from the photograph than is
the jury" (internal quotation omitted)); State v. Belk, 689 S.E.2d 439, 443
(N.C. Ct. App. 2009) (concluding that police officer's lay opinion that
defendant was depicted in video surveillance was inadmissible because
officer was in no better position than jury to identify defendant as person
in surveillance video).
The narration of the surveillance videos assisted the jury in
making sense of the images depicted in the videos. Mills v.
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Commonwealth, 996 S.W.2d 473, 488-89 (Ky. 1999) (concluding that police
officer's narration of crime scene video was admissible because it assisted
jury's evaluation of images displayed on videotape, noting that other
witnesses had identified defendant and victim in videotape), overruled in
part on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336, 346-
48 (Ky. 2010). The surveillance videos from Mandalay Bay and Jack-in-
the-Box were a compilation of several hours of videotape and involved a
multitude of cameras and views. Given the complexities of the
surveillance cameras and the piecing together of videos from hours of
recordings, we conclude that narration of the surveillance videos shown to
the jurors assisted them in understanding the evidence and therefore the
district court did not abuse its discretion in allowing the narrative
testimony. Accord United States v. Young, 745 F.2d 733, 761 (2d Cir.
1984) ("Generally speaking, a trial judge has broad discretion in deciding
whether or not to allow narrative testimony. We see no reason to apply a
different rule here, where the narrative testimony accompanied and
explained videotaped evidence." (citations omitted)).
Burnside also argues that the district court erred by refusing
to give his proposed written limiting 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
instruction given during Detective Ridings' testimony 3 and other
3 During Detective Ridings' testimony, jurors were admonished that
he was expressing his opinion as to the content of the Mandalay Bay
surveillance video and that they would have the opportunity to review the
continued on next page . . .
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instructions on matters related to witness credibility and believability,
witnesses with special knowledge, and drawing reasonable inferences from
the evidence, we conclude that Burnside failed to show 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).
Identification testimony
Burnside argues that the district court abused its discretion
by admitting the identification testimony provided by the witness who was
in the parking lot near the Jack-in-the-Box because her out-of-court
descriptions of him were inaccurate and thus her in-court identification of
him was unreliable. He also argues that her identification of him from
still photographs from the Mandalay Bay video is problematic because the
photographs showed only him and McKnight rather than as part of a
traditional photographic lineup and the interview where she was shown
the still photographs was not recorded so it is unclear whether the
interviewing officer used coercive or suggestive tactics to obtain the
witness's identification. 4
• . . continued
videos in the jury room and draw their own conclusions as to what the
video showed. Burnside agreed below that the district court's
admonishment was appropriate.
4 Burnside initially argued in his opening brief that the district court
abused its discretion by not compelling the State to disclose the witness's
contact information and not complying with the remedies• required for
nondisclosure of witness information provided in NRS 174.295(2). In his
continued on next page . . .
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At the time of the shooting, the witness had just finished her
shift at a K-mart near the Jack-in-the-Box where Hardwick was shot. As
she was walking through the parking lot to her car, she heard four to five
gunshots. After calling her boyfriend, the witness noticed a white car pull
into the K-Mart parking lot and park near her car. Two men exited the
car. The passenger took off a "puffy" black jacket and placed it and a
"black police gun" in the car. He was wearing dark denim jeans and a
striped shirt with a logo on the back. The witness described him as
African American with braided hair, average height, and in his 20s. The
driver also took off his jacket. He was wearing dark denim jeans and a
light-colored hoodie with some sort of graphic design on it. The witness
described the driver as African American with braided hair and in his 20s.
The two men conversed and walked and then ran toward the Jack-in-the-
Box. The witness went inside K-Mart and called 9-1-1. After placing the
9-1-1 call, she observed the two men running back to the white car.
During the investigation, the witness spoke with police
detectives several times, and she was shown two or three photographic
lineups. In only one of the photographic lineups was she able to identify
the driver of the white car. Subsequently, a police detective showed her
still photographs taken from surveillance video. She was "shocked" by the
photographs because the clothing worn by one of the men in one of the
. . . continued
reply brief, he concedes that the State filed a notice of witnesses pursuant
to NRS 174.234(1)(a) that included a physical address for the witness.
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photographs matched the clothing worn by the passenger in the white
car—the man with the gun. In another still photograph, she identified the
two men pictured as the men she saw on the night of the shooting because
"[t]hey are wearing what I saw that night."
The witness testified three times. At McKnight's preliminary
hearing, she identified him as the driver. At Burnside's preliminary
hearing, she did not identify him as a suspect in the shooting. At trial, she
testified that she recognized Burnside and McKnight as the two men
involved in the shooting based on her observations of them in the K-Mart
parking lot and her previous court appearances.
Burnside's challenge is primarily focused on inaccuracies or
variations in the witness's descriptions and the fact that she never
identified him before trial; therefore, her identification testimony should
have been excluded as unreliable. We conclude that the district court did
not abuse its discretion. Although the witness never identified Burnside
as a suspect before trial and her description of the assailants was
inconsistent to a degree, her identification of Burnside was based on his
attire at the relevant time, not his physical attributes. Her description of
Burnside's clothing was corroborated by other witnesses and the video
evidence. We conclude that her identification was not so unreliable as to
be inadmissible. Any weakness in her identification testimony goes to the
weight to be afforded to the testimony rather than its admissibility.
Collins v. State, 88 Nev. 9, 13, 492 P.2d 991, 993 (1972); Page v. State, 88
Nev. 188, 193, 495 P.2d 356, 359 (1972). The jurors were aware of the
alleged discrepancies in the witness's identification testimony, as they
were the subject of cross-examination, and it was for the jury to determine
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what weight to give that testimony. As to the police detective's use of the
still photographs rather than a traditional photographic lineup and failure
to record the interview, we conclude that Burnside has not demonstrated
that those circumstances show that the police detective's methods were
unduly suggestive or indicate that he used coercive or suggestive tactics to
extract an identification.
Admission of coconspirator statements
Burnside argues that the district court abused its discretion
by admitting Valerie Freeman's testimony about statements that she
heard McKnight make to his mother, Charmaine Simmons. He argues
that the testimony was inadmissible hearsay and violated Bruton v.
United States, 391 U.S. 123 (1968).
Freeman testified about a conversation between McKnight
and Simmons that she overheard several days after Hardwick's murder. A
crying McKnight told Simmons that he had to leave town and asked her
for money and luggage. Simmons then asked Freeman for money and
luggage; Freeman refused Simmons' request for luggage but gave her $20
to give to McKnight. Freeman also indicated that she vaguely recalled
some discussion between her and Simmons about retrieving Simmons'
car—a white Mazda. Freeman further testified that McKnight asked his
mother for money and told his mother that he and a friend were at a club
when an unidentified man told McKnight that there was "a $5,000 hit on
his head." McKnight told his mother that when the unidentified man left
the club, McKnight's friend followed the man and killed him
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Coconspirator statements under NRS 51.035(3)(e)
Burnside contends that Freeman's testimony about
McKnight's statements is hearsay and does not fall under NRS
51.035(3)(e), which provides that "[a] statement by a coconspirator of a
party during the course and in furtherance of the conspiracy" is not
hearsay. Burnside's argument is focused not so much on whether there
was sufficient evidence of a conspiracy as on whether the statements were
"in furtherance of the conspiracy." 5 NRS 51.035(3)(e).
McKnight's statements about luggage, money, and retrieving
his mother's car suggest that he was attempting• to evade capture and
conceal evidence (the white Mazda that was captured on the surveillance
tapes). Because "Mlle duration of a conspiracy is not limited to the
commission of the principal crime, but can continue during the period
when coconspirators perform affirmative acts of concealment," Foss v.
State, 92 Nev. 163, 167, 547 P.2d 688, 691 (1976); see Crew v. State, 100
Nev. 38, 46, 675 P.2d 986, 991 (1984), McKnight's efforts to evade capture
and conceal evidence were in furtherance of the conspiracy Ito the extent
that getting away with the principal crime is necessarily one of the
objectives of a conspiracy. See Crew, 100 Nev. at 46, 675 P.2d at 991
(holding that coconspirator's statements to third party relating to his plan
5 Beforea coconspirator's statement may be admitted, independent
prima facie evidence must establish that a conspiracy existed. Crew v.
State, 100 Nev. 38, 46, 675 P.2d 986, 991 (1984); Fish v. State, 92 Nev.
272, 274-75, 549 P.2d 338, 340 (1976). We conclude that prima facie
evidence established a conspiracy between Burnside and McKnight to rob
Hardwick.
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to move bodies after murder were admissible under NRS 51.035(3)(e)
because plan "was intended to avoid detection" and therefore was in
furtherance of conspiracy to commit murder); see also Wood v. State, 115
Nev. 344, 349, 990 P.2d 786, 789 (1999) (defining when statements to a
third party are made in furtherance of a conspiracy). Therefore, we
conclude that the challenged statements fall within the scope of NRS
51.035(3)(e).
With regard to McKnight's statements about the $5,000 hit on
his head and his friend killing the man who relayed the hit to McKnight,
the parties dispute whether these statements were related to this case or
another murder involving McKnight. We have observed that "statements
made by a co-conspirator to a third party who is not then a member of the
conspiracy are in furtherance of the conspiracy only if they are designed to
induce that party to join the conspiracy or act in a way that would assist
the conspiracy's objectives." Wood, 115 Nev. at 349, 990 P.2d at 789. Such
statements are not in furtherance of the conspiracy "if they were intended
to be nothing more than idle chatter or casual conversation about past
events." United States v. Shores, 33 F.3d 438, 444 (4th Cir. 1994).
'Whether a particular statement to a third party was intended to induce
that party to join or assist the conspiracy, hence was 'in furtherance' of it,
must be determined by careful examination of the context in which it was
made." Id. A statement may be in furtherance of a conspiracy "even
though it is 'susceptible of alternative interpretations' and was not
'exclusively, or even primarily, made to further the conspiracy,' so long as
there is 'some reasonable basis' for concluding that it was designed to
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further the conspiracy." Id. (quoting United States v. Shoffner, 826 F.2d
619, 628 (7th Cir. 1987)).
McKnight's statements about the hit and subsequent killing
are susceptible to alternative interpretations. They could be viewed as a
conversation about past events simply to explain the situation he faced to
his mother rather than to further the objectives of the conspiracy. But
when considered in the context of the rest of the conversation with his
mother, the statements can reasonably be construed as part of an attempt
to get his mother to assist the conspiracy by helping him evade arrest and
conceal evidence. Conveying to his mother the gravity of the situation
(that someone had been killed, ostensibly to protect McKnight), could have
been designed at least in part to convince his mother to help. CI Shores,
33 F.3d at 444-45 (holding that trial court could reasonably construe
coconspirator's statements to cellmate as being designed to induce
cellmate, who was long-time criminal with connections to organized crime,
to join or provide assistance to conspiracy by fabricating defense and
finding someone to kill another conspirator, even though statements also
could be construed as "casual conversation about past events" to explain
the charges that he faced to his cellmate). We therefore conclude that the
statements were admissible under NRS 51.035(3)(e). But even assuming
error in their admission, no prejudice resulted because McKnight did not
directly implicate Burnside in his statement and there was substantial
evidence supporting Burnside's guilt. We therefore conclude that
admission of the challenged evidence did not have a substantial influence
on the verdict. See Knipes v. State, 124 Nev. 927, 935, 192 P.3d 1178, 1183
(2008).
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Bruton
Burnside also argues that Freeman's testimony about
McKnight's statements violated Bruton. Bruton holds that the admission
in a joint trial of a nontestifying codefendant's incriminating statement
that expressly refers to the defendant violates the Sixth Amendment
Confrontation Clause, even if the jury is instructed to consider the
confession only against the nontestifying codefendant. 391 U.S. at 124 &
n.1, 126. Bruton is premised on the Confrontation Clause. Id. at 126.
Since Bruton was decided, the Supreme Court has held that the
Confrontation Clause does not apply to out-of-court statements that are
nontestimonial. Crawford v. Washington, 541 U.S. 36 (2004). Bruton
therefore must be viewed "through the lens of Crawford." United States v.
Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cit. 2010). In other words, if the
challenged out-of-court statement by a nontestifying codefendant is not
testimonial, then Bruton has no application because the Confrontation
Clause has no application. See, e.g., United States v. Smalls, 605 F.3d 765,
768 n.2 (10th Cir. 2010); United States v. Johnson, 581 F.3d 320, 326 (6th
Cir. 2009); United States v. Avila Vargas, 570 F.3d 1004, 1008-09 (8th Cir.
2009); People v. Arceo, 125 Cal. Rptr. 3d 436, 446-47 (Cal. Ct. App. 2011);
Thomas v. United States, 978 A.2d 1211, 1224-25 (D.C. 2009); State v.
Usee, 800 N.W.2d 192, 197-98 (Minn. Ct. App. 2011).
McKnight's statements are nontestimonial. They were not
contained in formalized testimonial materials such as an affidavit,
deposition, or prior testimony; were not made to law enforcement in the
course of interrogation; and were not made under circumstances that
would lead a reasonable person to believe that they would be used
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prosecutorially. See Flores v. State, 121 Nev. 706, 716-20, 120 P.3d 1170,
1176-80 (2005) (discussing illustrations of testimonial hearsay). Moreover,
as explained above, the statements were made in furtherance of a
conspiracy and by their very nature are not testimonial. See Crawford,
541 U.S. at 56; see also Avila Vargas, 570 F.3d at 1009. Therefore,
Burnside had no constitutional right to confront McKnight regarding the
statements and his Bruton challenge lacks merit.
Evidence supporting robbery and burglary
Burnside argues that insufficient evidence supports his
convictions for robbery with the use of a deadly weapon and burglary. The
State charged Burnside with robbery with the use of a deadly weapon as a
direct participant, coconspirator, and aider and abettor and with burglary
as a direct participant and aider and abettor. Although the evidence
indicates that McKnight seized the silver cigar case from Hardwick, the
evidence is more than sufficient to establish beyond a reasonable doubt
that Burnside was a coconspirator or aider and abettor in the robbery and
an aider and abettor in the burglary. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Furbay v. State, 116 Nev. 481, 486, 998 P.2d 553, 556
(2000); Doyle v. State, 112 Nev. 879, 891, 921 P.2d 901, 910 (1996),
overruled on other grounds in Kaczmarek v. State, 120 Nev. 314, 91 P.3d
16 (2004).
Robbery as specific intent offense
Burnside contends that the district court erred by overruling
his objection to the robbery and felony-murder instructions on the ground
that robbery is a specific intent offense. He recognizes that this court
determined in Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1228-29
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(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 urges the
court to overrule Litteral and return robbery to its common law
classification as a specific intent offense given the "ambiguity of [NRS
200.380], the common law history, and the rule of lenity." We are not
persuaded to retreat from Litteral.
Alternatively, •Burnside argues that even if robbery is a
general intent offense, we should treat it as a specific intent offense when
it is used to support a felony-murder charge. 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. And although felony murder is defined
broadly in Nevada given the number of felonies included in the statute,
McConnell v. State, 120 Nev. 1043, 1065, 102 P.3d 606, 622 (2004), the
narrowing function is served by the requirement that the jury find one or
more statutory aggravating circumstances before death is available as a
sentence for first-degree murder, NRS 200.030(4)(a). See McConnell, 120
Nev. at 1066, 102 P.3d at 622. Therefore, robbery as a general intent
crime does not offend the constitutional narrowing requirement when used
to support a felony-murder theory.
Instruction on admissibility of coconspirator statement
Burnside 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
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standard. 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 Cnty., 95 Nev. 522, 524, 598
P.2d 623, 624 (1979). The instruction does not suggest that Burnside 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. And two other instructions advised the jury
that the State had to prove Burnside's guilt beyond a reasonable doubt.
Accordingly, the district court did not abuse its discretion in overruling
Burnside's objection to the instruction. See Crawford v. State, 121 Nev.
744, 748, 121 P.3d 582, 585 (2005).
Penalty hearing claims
Validity of the prior-violent-felony-conviction aggravating circumstance
Relying on Hidalgo v. Eighth Judicial District Court, 124 Nev.
330, 332, 184 P.3d 369, 372 (2008) (holding that solicitation to commit
murder is not a felony involving use or threat of violence under NRS
200.033(2)(b)), and Nunnery v. Eighth Judicial District Court, 124 Nev.
477, 478, 186 P.3d 886, 886 (2008) (holding that conspiracy to commit
robbery is not a felony involving use or threat of violence to another under
NRS 200.033(2)(b)), Burnside argues that an attempt offense, in this case
attempted battery with substantial bodily harm, is not a violent felony for
the purposes of NRS 200.033(2)(b) and therefore the prior-violent-felony-
conviction aggravating circumstance is invalid. He also argues that
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insufficient evidence was introduced pursuant to Redeker v. Eighth
Judicial District Court, 122 Nev. 164, 127 P.3d 520 (2006), to prove the
aggravating circumstance.
We have acknowledged or upheld an aggravating
circumstance under NRS 200.033(2)(b) based on a conviction of an attempt
to commit a crime of violence. See, e.g., Nunnery v. State, 127 Nev., Adv.
Op. 69, 263 P.3d 235, 260 (2011) (concluding that evidence of two
attempted murder convictions and attempted robbery conviction
supported prior-violent-felony-conviction aggravating circumstance);
Thomas v. State, 122 Nev. 1361, 1375, 148 P.3d 727, 736 (2006)
(concluding that prior-violent-felony-conviction aggravating circumstance
under NRS 200.033(2)(b) was proved by admission of judgment of
conviction for attempted robbery); Rhyne v. State, 118 Nev. 1, 13, 38 P.3d
163, 171 (2002) (upholding prior-violent-felony-conviction aggravating
circumstance based on conviction for attempted assault with deadly
weapon); accord Oats v. Singletary, 141 F.3d 1018, 1031 (11th Cir. 1998)
(concluding that second-degree attempted murder constitutes prior violent
felony supporting aggravating circumstance that defendant was
previously convicted of "felony involving the use or threat of violence to the
person" (internal quotation marks omitted)); Winkles v. State, 894 So. 2d
842, 847 (Fla. 2005) (upholding prior-violent-felony aggravating
circumstance based on attempted robbery conviction). However, we have
not expressly taken up the question of whether an attempt to commit a
violent crime satisfies NRS 200.033(2)(b).
Burnside equates an attempt offense with the offenses of
solicitation and conspiracy. His argument is essentially this Like
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solicitation and conspiracy, attempt offenses are inchoate offenses that can
be committed without the infliction of violence or an explicit threat of
violence, and therefore, attempt offenses cannot satisfy NRS 200.033(2)(b).
Although Burnside correctly characterizes attempt as an inchoate offense,
attempt is distinguishable from solicitation and conspiracy. We reasoned
in Hidalgo and Nunnery that solicitation to commit murder and
conspiracy to commit robbery, respectively, do not satisfy NRS
200.033(2)(b) because those offenses do not involve the use or threat of
violence against another, regardless of the purpose of the solicitation or
conspiracy. Hidalgo, 124 Nev. at 334-35, 184 P.3d at 373; Nunnery, 124
Nev. at 480, 186 P.3d at 888. Solicitation is a crime of communication,
that is, "the harm is the asking—nothing more need be proven." Hidalgo,
124 Nev. at 334-35, 184 P.3d at 373 (internal quotations omitted).
Similarly, the crime of conspiracy is "committed upon reaching the
unlawful agreement," and nothing more needs to be proven. Nunnery, 124
Nev. at 480, 186 P.3d at 888-89 (internal quotation marks omitted); see
NRS 199.490 (providing that proof of an overt act is not necessary to show
conspiracy). Unlike solicitation and conspiracy, attempt requires
"performance of an overt act toward the commission of the crime."
Johnson v. Sheriff Clark Cnty., 91 Nev. 161, 163, 532 P.2d 1037, 1038
(1975); Larsen v. State, 86 Nev. 451, 453, 470 P.2d 417, 418 (1970); see
NRS 193.330(1) (defining attempt as laIn act done with the intent to
commit a crime, and tending but failing to accomplish it"); Riebel v. State,
106 Nev. 258, 260, 790 P.2d 1004, 1006 (1990) ("Mere preparation is
insufficient to prove an attempt to commit a crime."). It is that critical
distinction that sets attempt apart from solicitation and conspiracy
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because the overt act, in the context of an attempt to commit a violent
crime, might involve the use or threat of violence. See generally Weber v.
State, 121 Nev. 554, 586, 119 P.3d 107, 129 (2005) (acknowledging that
use or threat of violence often occurs in sexual assault but neither is
element of offense and upholding prior-violent-felony-conviction
aggravating circumstance where trial record reflected no evidence of overt
violence or threats by defendant against victim during two sexual assaults
but showed that victim experienced trauma and violence during
defendant's first sexual assault of her and totality of evidence was
sufficient to support inference that both sexual assaults included at least
implicit threats of violence). We therefore conclude that attempt offenses
should not be excluded from the purview of NRS 200.033(2)(b) as a matter
of law.
To determine whether a particular attempt offense satisfies
NRS 200.033(2)(b), we must look at the overt act and determine whether
the State sufficiently proved that the overt act involved the use or threat
of violence. In doing so, the State is limited in the evidence that can be
used to establish that an offense involves the use or threat of violence.
Redeker, 122 Nev. 164, 127 P.3d 520. In Redeker, we concluded that
where it is not readily apparent from the statutory elements that an
offense involves the use or threat of violence, the fact-finder may look
beyond the statutory elements to determine whether the prior offense
involved the use or threat of violence for purposes of NRS 200.033(2)(b).
122 Nev. at 172, 127 P.3d at 525-26. However, the type of evidence that
can be considered in making that determination is not limitless. Id.
Where the prior conviction at issue is based on a guilty plea, the fact-
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finder may consider the statutory definition of the offense, "charging
documenasl, written plea agreement, transcript of plea colloquy, and "any
explicit factual finding by the trial judge to which the defendant assented"
underlying the prior conviction to determine whether the offense involved
the use or threat of violence for purposes of NRS 200.033(2)(b). Id. at 172,
127 P.3d at 525 (internal quotation marks omitted); see Hidalgo, 124 Nev.
at 335-36, 184 P.3d at 374.
With this backdrop, we turn to the question of whether the
State proved beyond a reasonable doubt that Burnside's conviction for
attempted battery with substantial bodily harm satisfied NRS
200.033(2)(b). The State introduced the preliminary hearing testimony of
Tyyanna Clark, who explained that Burnside attacked her by hitting,
punching, and kicking her, breaking her jaw and eye bones. However,
preliminary hearing testimony is not the type of evidence identified in
Redeker as competent evidence to show that the offense involved the use
or threat of violence. The State also introduced exhibit 257, which
contained information related to Burnside's juvenile and adult history,
including the judgment of conviction for the attempted battery of Clark
but no other related documents that referenced him. The judgment of
conviction does not include any information indicating that the attempted
battery involved the use or threat of violence. The other documents
related to that offense in exhibit 257—another judgment of conviction, a
guilty plea agreement, and two copies of a charging document—involve
Burnside's brother, Tommie, who participated in the attack on Clark.
Because the State did not introduce evidence consistent with Redeker to
establish that Burnside's conviction for the attempted battery of Clark
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involved the use or threat of violence, the prior-violent-felony aggravating
circumstance was not proved and therefore must be struck.
We must now determine whether Burnside's death sentence
can be upheld in the absence of the prior-violent-felony aggravating
circumstance. Archanian v. State, 122 Nev. 1019, 1040, 145 P.3d 1008,
1023 (2006) ("A death sentence based in part on an invalid aggravator
may be upheld either by reweighing the aggravating and mitigating
evidence or conducting a harmless-error review."); see Clemons v.
Mississippi, 494 U.S. 738, 741 (1990). Because the felony aggravating
circumstance based on robbery is valid and the jury found no mitigating
circumstances, Burnside remains death eligible, see NRS 200.030(4)(a),
and the invalid aggravating circumstance would not have affected the
jury's weighing of the aggravating and mitigating circumstances. And
although Burnside's conviction for attempted battery with substantial
bodily injury cannot be used as an aggravating circumstance, it was
admissible as other matter evidence under NRS 175.552(3) and therefore
was properly considered by the jury in selecting the appropriate sentence
for Hardwick's murder. For these reasons, the invalid aggravating
circumstance does not warrant reversal of the death sentence.°
°Because the prior-violent-felony aggravating circumstance is
invalid, we need not address Burnside's other challenges to that
aggravating circumstance.
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Remaining penalty hearing claims
District court's refusal to bifurcate the penalty hearing
Burnside argues that the district court abused its discretion
by denying his motion to bifurcate the penalty hearing. We have refused
to require bifurcated proceedings in capital penalty hearings, see, e.g.,
McConnell v. State, 120 Nev. 1043, 1061-62, 102 P.3d 606, 619 (2004);
Gallego v. State, 117 Nev. 348, 369, 23 P.3d 227, 241 (2001), abrogated on
other grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235
(2011), and Burnside offers no novel argument justifying a fresh look at
our jurisprudence in this area.
Evidence that Burnside was a pimp
Burnside complains that the district court abused its
discretion by admitting a statement suggesting that he was a pimp
because the statement was vague and unsupported by the evidence.
Although the statement was impalpable given its ambiguity, see Sherman
v. State, 114 Nev. 998, 1012, 965 P.2d 903, 913 (1998), it was brief and did
not have a substantial influence on the jury's sentencing determination,
see Kotteakos v. United States, 328 U.S. 750, 776 (1946) (considering
whether error "had substantial and injurious effect or influence in
determining the jury's verdict" when reviewing nonconstitutional error);
see also NRS 178.598 (harmless error rule), considering Burnside's
significant criminal history.
Admission of gang evidence
Burnside argues that the district court improperly admitted
evidence that he was affiliated with a gang because there was no
suggestion that Hardwick' s murder was gang-related and the State failed
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to provide notice of its intent to introduce the evidence. Because Burnside
failed to object below, we review for plain error affecting his substantial
rights. NRS 178.602; Archanian v. State, 122 Nev. 1019, 1031, 145 P.3d
1008, 1017 (2006). Relying on Dawson v. Delaware, 503 U.S. 159 (1992),
in Lay v. State, we concluded that "[elvidence of affiliation with a
particular group is only relevant at the penalty phase of a criminal trial
when membership in that group is linked to the charged offense, or is used
as other than general character evidence." 110 Nev. 1189, 1196, 886 P.2d
448, 452 (1994). Some of the documents admitted during the penalty
phase refer to an offense or action that was gang-related, and a police
detective testified that Burnside's criminal history included an incident
where Burnside defaced private property and that the offense was gang-
related. Admission of this evidence was not plain error as the gang
references were integral to the criminal activities described and those
activities are relevant to the jury's capital sentencing determination. See
id. (concluding that evidence concerning "prior offenses or acts committed
in connection with the gang" was relevant at capital sentencing hearing as
it showed that defendant "had a violent disposition"). In contrast, some
documents made general references to Burnside's affiliation with gangs.
That evidence falls into the category of general character evidence and
therefore was inadmissible. But in light of Burnside's lengthy criminal
history and the gang connection relevant to some of that history, we
conclude that the error did not affect his substantial rights. Nor has he
established plain error related to notice as the State provided notice that it
would introduce evidence of his juvenile criminal history.
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Admission of statement in presentence investigation report
Burnside contends that the district court abused its discretion
by admitting the presentence investigation report (PSI) related to his prior
felony conviction for battery with substantial bodily harm because it was
confidential and included prejudicial information such as gang references,
his alleged monikers, and several charges that were later dismissed.
Because Burnside did not object below, we review for plain error affecting
his substantial rights. NRS 178.602; Archanian, 122 Nev. at 1031, 145
P.3d at 1017. He has not demonstrated plain error for two reasons. First,
as Burnside acknowledges, we concluded in Nunnery v. State that the use
of PSI reports in capital penalty hearings does not violate the general
confidentiality provisions in NRS 176.156. 127 Nev., Adv. Op. 69, 263
P.3d at 249. Second, although he argues that he was prejudiced by the
admission of the PSI report, he does not contend that any information in it
was impalpable or highly suspect. Nika v. State, 124 Nev. 1272, 1296, 198
P.3d 839, 856 (2008) (stating that evidence of uncharged prior bad acts is
admissible in capital penalty hearing if not impalpable or highly suspect).
Admission of photograph of appellant holding an assault rifle
Burnside complains that the district court erred by admitting
a photograph of him holding an assault rifle because its admission
violated his constitutional right to bear arms and the photograph was
irrelevant and unfairly prejudicial. Burnside failed to raise the
constitutional issue below, and we conclude that he has not demonstrated
plain error. See NRS 178.602; Archanian, 122 Nev. at 1031, 145 P.3d at
1017. And although we conclude that the photograph was of dubious
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relevance, any error was harmless. See NRS 178.598; see also Kotteakos,
328 U.S. at 776-77. Accordingly, no relief is warranted on this claim.
Juvenile delinquency records
Burnside argues that the State improperly received his sealed
juvenile records, the juvenile court erred in providing the records to the
State, and the district court erred by admitting those records during the
penalty hearing. He further contends that he was prejudiced by their
admission because the records admitted were extensive and the State
relied heavily on them in its closing arguments. Because he did not object
to the release of his juvenile records to the State or the district court's
admission of them, we review his claim for plain error affecting his
substantial rights. NRS 178.602; Archanian, 122 Nev. at 1031, 145 P.3d
at 1017. We conclude that Burnside cannot establish plain error for the
following reasons.
First, this appeal is from the judgment of conviction. We can
only review matters that appear in the trial record. The trial court's order
did not release the juvenile records to either party, and, in fact, the court
recognized that it lacked jurisdiction to do so. And while the order
indicates that both parties should be provided the records, the trial court
also directed that its order would be "submitted with the Juvenile Court
Order for the records to be released to the parties under the applicable
guidelines." It is apparent that the trial court recognized that any release
of records would be accomplished in accordance with applicable rules. Any
error in releasing the records does not rest with the trial court but rather
the juvenile court if in fact it entered an order releasing the records, which
is not apparent from the trial record.
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Second, although Burnside represents that the juvenile court
clearly provided the State with copies of or granted the State access to the
juvenile records, the trial record suggests that the State obtained the
juvenile records from the defense. In particular, the trial record includes a
receipt sent by the defense to the State in which the State acknowledged
"RECEIPT of a copy of the juvenile records of Defendant Burnside" on
April 28, 2009. The receipt does not identify what documents were
included in the copy provided by the defense, but it indicates that
Burnside turned over some or all of the juvenile records to the State. To
the extent that the defense disclosed the records, Burnside cannot now
complain. See State v. Gomes, 112 Nev. 1473, 1480, 930 P.2d 701, 706
(1996) (providing that error in admitting evidence was not reversible
where defense invited error); Ybarra v. State, 103 Nev. 8, 16, 731 P.2d 353,
358 (1987) (same); Milligan v. State, 101 Nev. 627, 637, 708 P.2d 289, 296
(1985) (same). But in any event, we cannot say from the record before us
that the State improperly obtained the juvenile records.
Third, although several documents in Burnside's juvenile
records are marked confidential or are stamped "Use and Dissemination of
this Record is regulated by Law," none of the juvenile records are
identified as sealed. Therefore, Burnside's supposition that the juvenile
records admitted at the penalty hearing were sealed is not borne out by
the trial record. In fact, a review of the law governing the sealing of
juvenile records suggests that the records may not have been sealed.
First, Burnside does not allege that he or a probation officer petitioned for
his records to be sealed before he turned 21 and the record before us does
not demonstrate that Burnside's juvenileS records were sealed before he
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turned 21 as permitted under NRS 6211.130. Second, there is an exception
to the general rule that "when a child reaches 21 years of age, all records
relating to the child must be sealed automatically," NRS 62H.140, which
may have prevented the automatic sealing of some, if not all, of Burnside's
juvenile records before he turned 30 years of age (he was not yet 30 at the
time of the trial in this case). In particular, if a child is adjudicated
delinquent for "[am n unlawful act which would have been a felony if
committed by an adult and which involved the use or threatened use of
force or violence," NRS 62H.150(6)(b), and the records relating to that act
were not sealed by the juvenile court before the child reached 21 years of
age, as provided in NRS 6211.130, then the "records must not be sealed
before the child reaches 30 years of age," NRS 6211.150(1). Because it
appears that Burnside was adjudicated delinquent for robbery, which
would have been a felony if committed by an adult and involved the use or
threatened use of force or violence, and he was not yet 30 years of age
when the records were disclosed, it seems unlikely that his juvenile
records related to the robbery offense had been sealed. While his juvenile
records relating to other criminal activity may not have satisfied NRS
6211.150(6), we cannot say that admission of that evidence constituted
plain error given the state of the record before us.
Plain error requires that "an error must be so unmistakable
that it is apparent from a casual inspection of the record." Garner v. State,
116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000), overruled on other grounds by
Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002), and by Nika v. State,
124 Nev. 1272, 198 P.3d 839 (2008). We simply cannot discern on this
record, where no objection was voiced and therefore the necessary record
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was not developed, that the State improperly obtained Burnside's juvenile
records or that the district court erred in admitting them. 7
Admission of evidence purportedly not included in the State's
notice of evidence in aggravation
Burnside argues that the district court erred by admitting
evidence that was not included in the State's notice of evidence in
aggravation. Because he did not object, his claim is reviewed for plain
error affecting his substantial rights. NRS 178.602; Archanian, 122 Nev.
at 1031, 145 P.3d at 1017. First, Burnside argues that the district court
erroneously allowed Hardwick's girlfriend to testify that she had attended
all court appearances in the case and had been subjected to ridicule during
those appearances because the State's notice of evidence in aggravation
did not reveal that the State intended to elicit misconduct allegedly
committed by him or McKnight during court proceedings. The challenged
comments were spontaneous and unsolicited, and we conclude that he has
not demonstrated plain error. 8 Second, he argues that the State provided
no notice of Detective Benjamins' testimony concerning statements by a
witness who observed two African-American men sitting in a car after the
shooting, laughing, gesturing with their hands, and saying "woo, woo,
7 We have not addressed Clay v. Eighth Judicial Dist. Court, 129
Nev., Adv. Op. 91, 313 P.3d 232 (2013), cited by Burnside, because that
opinion has been withdrawn.
8 We further conclude that Burnside failed to establish plain error
respecting the testimony of Hardwick's girlfriend on the ground that it
exceeded the scope of permissible victim-impact evidence given the
spontaneous and brief nature of the challenged comments.
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woo" (siren noises). Even assuming that this evidence should have been
noticed, considering other evidence showing the senseless and calculated
nature of the murder, we conclude that he has not established plain error.
Prosecutorial misconduct
Burnside argues that the prosecutor committed misconduct in
two instances. First, he contends that the prosecutor misrepresented to
the jury that McKnight was not eligible for the death penalty and that he
was prejudiced by the misrepresentation because the jury rejected his
proffered mitigating circumstances related to the fact that McKnight was
not facing the death penalty and had another unrelated murder charge
pending. Because he failed to object, this court reviews for plain error.
NRS 178.602; Archanian, 122 Nev. at 1031, 145 P.3d at 1017. Whether
the prosecutor's statement that McKnight was not subject to the death
penalty was incorrect as a matter of law is unclear as his eligibility for the
death penalty depended on the availability of aggravating circumstances,
see NRS 200.030, and whether the jury found him guilty of premeditated
murder or felony murder or both, see McConnell v. State, 120 Nev. 1043,
1069, 102 P.3d 606, 624 (2004). To the extent that the challenged
comment was incorrect, we conclude that Burnside has not shown that it
affected his substantial rights or induced the jury to reject his proffered
mitigating circumstance. Second, he argues that during closing argument,
the prosecutor improperly argued that the jury would give value to
Hardwick's life and compensation to his family by returning a death
sentence. We conclude that the challenged comments, considered in
context, merely pointed out the senseless nature of the murder,
highlighted the damage Hardwick's murder inflicted on his family, and
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entreated the jury to impose a death sentence. The comments were not
improper.
Validity of robbery aggravating circumstance
Burnside argues that the robbery aggravating circumstance is
invalid because there was no evidence proving that he "was in any way
involved in McKnight's decision to take the cigar case or otherwise take
property from Hardwick" and liability for the robbery cannot be imputed
to him, as imputed liability is not provided for in NRS 200.033. We
disagree. NRS 200.033(4) applies where• "[Ole murder was committed
while the person was engaged, alone or with others, in the commission of,
or an attempt to commit or flight after committing or attempting to
commit" certain felonies, including robbery. (Emphasis added.) The plain
language of the statute contemplates the situation presented here where
the evidence shows that Burnside and McKnight acted in concert to rob
Hardwick. 9
9To the extent Burnside argues that the State presented hearsay
evidence to support the aggravating circumstance, our decision in
Summers v. State, 122 Nev. 1326, 1327, 148 P.3d 778, 779 (2006), allows
for the admission of hearsay in capital penalty hearings. And we have
affirmed Summers' holding in challenges to the admission of hearsay
evidence related to the eligibility prong of Nevada's death penalty scheme.
See, e.g., Thomas v. State, 122 Nev. 1361, 1367, 148 P.3d 727, 732 (2006);
Johnson v. State, 122 Nev. 1344, 1353, 148 P.3d 767, 773 (2006). We are
not persuaded to alter our course in this regard. See Miller v. Burk, 124
Nev. 579, 597, 188 P.3d 1112, 1124 (2008) ("[U]nder the doctrine of stare
decisis, we will not overturn [prior decisions] absent compelling reasons
for so doing." (footnote omitted)).
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Mitigation instruction
Burnside complains that the definition of mitigation was
incomplete and that the term "moral culpability" used in the instruction
was confusing and unconstitutionally vague because a reasonable juror
would not understand that phrase to mean that any factor, "whether or
not associated with the underlying offense," could be considered as
mitigation. He contends that the prejudicial effect of the phrase was
exacerbated by the prosecutor's arguments minimizing the importance of
mitigation and erroneous suggestions that mitigation must be related to
the underlying offense, as evidenced by the jury's failure to find a single
mitigating circumstance.
The instruction used in this case is the same instruction that
we recently considered in Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d
157 (2014). In that case, we concluded that there was no "reasonable
likelihood that the jury misunderstood the instruction to preclude it
from considering any aspect of fa defendant's] character or record as a
mitigating circumstance regardless of whether it reflected on his moral
culpability." Id. at 173. We reach the same conclusion here. Considerable
time was spent presenting mitigation evidence that was unrelated to the
circumstances of the offense; the bulk of Burnside's mitigation evidence
centered on his upbringing and the hardships he encountered during his
childhood Consistent with that presentation, the jury was given a verdict
form listing 17 proposed mitigating circumstances, 14 of which related to
his background, family circumstances, and character. It is not reasonably
likely that the jury thought that it could not consider all of the mitigation
evidence that had been presented or that it had been given a verdict form
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that included mitigating circumstances that it was not permitted to
consider. That the jury did not find any mitigating circumstances does not
in itself signal that the jury believed it was precluded from considering
Burnside's background, character, and other circumstances unrelated to
the offense. Rather, it is just as likely that the jurors were not persuaded
that the proffered mitigating circumstances would justify a sentence less
than death. And nothing in the prosecutor's arguments suggested to the
jury that it could not consider evidence of Burnside's character and record.
For these reasons, as in Watson, we conclude that Burnside is not entitled
to relief based on this instruction.
Weighing equation
Burnside argues that the jurors were improperly instructed on
the weighing of mitigating and aggravating circumstances because that
determination is a finding of fact that is necessary to make death an
available sentence and therefore that weighing is subject to the beyond-a-
reasonable-doubt standard under Apprendi v. New Jersey, 530 U.S. 466
(2000), and Ring v. Arizona, 536 U.S. 584 (2002). We held in Nunnery v.
State, 127 Nev., Adv. Op. 69, 263 P.3d 235, 241, 250-53 (2011), that the
weighing of aggravating and mitigating circumstances "is not a factual
finding that is susceptible to the beyond-a-reasonable-doubt standard of
proof' and therefore is not subject to Apprendi and Ring. Accordingly,
Burnside's claim lacks merit.
Jury's failure to find mitigating circumstances
Burnside contends that the jury's failure to find any
mitigating circumstances, despite clear and uncontroverted evidence,
violated several of his constitutional rights. While he presented evidence
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I9
to support each of the 17 mitigating circumstances he proffered, the jury is
not obligated to find a mitigating circumstance merely because unrebutted
evidence supports it. See Gallego v. State, 117 Nev. 348, 366-67, 23 P.3d
227, 240 (2001), abrogated on other grounds by Nunnery, 127 Nev., Adv.
Op. 69, 263 P.3d at 235; Thomas v. State, 114 Nev. 1127, 1149, 967 P.2d
1111, 1125 (1998). Burnside urges us to overrule Gallego because it is
contrary to federal constitutional authority that requires jurors to consider
mitigation. Gallego does not hold that the jury may ignore mitigation. "It
is well established that the sentencer in a capital case must consider all
mitigating evidence presented by the defense." Thomas, 114 Nev. at 1149,
967 P.2d at 1125; see Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982)
(noting that sentencer may determine weight to be given mitigation
evidence, but it "may not give it no weight by excluding such evidence
from [its] consideration"). Nothing in the record suggests that the jury
ignored the evidence, and we see no basis to depart from our conclusion
that the weight given to mitigation evidence, even if unrebutted, rests
with the jury.
Constitutionality of the death penalty
Burnside argues that the death penalty is unconstitutional on
three grounds, all of which this court has previously rejected: (1) the death
penalty scheme does not genuinely narrow the class of defendants eligible
for death, see Nunnery, 127 Nev., Adv. Op. 69, 263 P.3d at 257; Leonard v.
State, 117 Nev. 53, 82-83, 17 P.3d 397, 415-16 (2001); (2) death constitutes
cruel and unusual punishment, see Gallego, 117 Nev. at 370, 23 P.3d at
242; Colwell v. State, 112 Nev. 807, 814-15, 919 P.2d 403, 408 (1996);
Shuman v. State, 94 Nev. 265, 269, 578 P.2d 1183, 1186 (1978); and
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(3) executive clemency is unavailable, see Nunnery, 127 Nev., Adv. Op. 69,
263 P.3d at 257; Colwell, 112 Nev. at 812, 919 P.2d at 406-07. He has
offered no novel or persuasive argument worthy of deviating from this
court's firm posture on those matters.
Cumulative error
Burnside argues that cumulative error requires reversal of his
convictions and death sentence. "The cumulative effect of errors may
violate a defendant's constitutional right to a fair trial even though errors
are harmless individually." Hernandez v. State, 118 Nev. 513, 535, 50
P.3d 1100, 1115 (2002). As to the guilt phase, because Burnside
demonstrated a single error—the district court erred by concluding that
the testimony relating to cell phone transmissions did not constitute
expert testimony, thus requiring the State to provide notice of the witness
as an expert—there are not multiple errors to cumulate. McKenna v.
State, 114 Nev. 1044, 1060, 968 P.2d 739, 749 (1998) (concluding that sole
error "does not, by itself, constitute cumulative error"). And while his
penalty hearing was not free from error, we conclude that any errors
considered cumulatively did not result in an unfair penalty hearing.
Mandatory appellate review of the death sentence
NRS 177.055(2) requires that this court review every death
sentence and consider whether (1) sufficient evidence supports the
aggravating circumstances found; (2) the verdict was rendered under the
influence of passion, prejudice or any other arbitrary factor; and (3) death
sentence is excessive. First, as explained above, the prior-violent-felony
aggravating circumstance is invalid because the State failed to prove
beyond a reasonable doubt that Burnside's conviction for attempted
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battery with substantial bodily harm involved the use or threat of violence
under NRS 200.033(2)(b), but the felony aggravating circumstance based
on robbery was proved through evidence presented during the guilt phase
of trial. Second, nothing in the record indicates that the jury acted under
any improper influence in imposing death. Third, the death sentence is
not excessive. The crime was carefully considered—Burnside, along with
McKnight, observed and followed Hardwick for a considerable time. The
evidence indicated that Burnside shot Hardwick a number of times and
that he acted in a calculated, cold-blooded manner and was not provoked
(in fact, the evidence suggests that Hardwick had no warning of the
impending shooting and robbery). And Burnside's criminal record
disclosed multiple instances of violence. His attack on Tyyanna Clark in
particular demonstrates that Burnside is a dangerous and violent man.
During the attack on Clark, Burnside demanded money, hit her with his
fists and feet, stomped on her face, dragged her along the ground, threw
her onto a car, and pulled her pants down. Clark suffered a broken jaw
and broken eye bone. We recognize that Burnside presented credible
mitigation evidence revealing a somewhat troubled childhood, but that
evidence does not diminish the calculated, cold-blooded, and unprovoked
killing of Hardwick or Burnside's propensity toward violent behavior.
Under the circumstances, we conclude that based on the crime and the
defendant before us, the death sentence is not excessive. See generally
Dennis v. State, 116 Nev. 1075, 1084-87, 13 P.3d 434, 440-42 (2000)
(discussing and applying excessiveness analysis).
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Because review of this appeal reveals no errors that warrant
reversal of Burnside's convictions or death sentence, we affirm the
judgment of conviction.
Gibbons
We concur:
/344A. tile-s-rtn. C.J.
Hardesty
51/4 A_ce,--S-a-11 J.
Parraguirre
\Dt' J.
Douglas
Pickering
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CHERRY, J., dissenting:
I dissent. I would reverse the judgment of conviction and
remand this matter to the district court for a new penalty hearing based
on the erroneous instruction given to the jury concerning the definition of
mitigating circumstances. The jury received the same erroneous
instruction at issue in our decision in Watson v. State, 130 Nev., Adv. Op.
76, 335 P.3d 157 (2014). As I observed in that case, the instruction "is
simply inconsistent with the statutory language defining mitigating
circumstances" because the statute reflects a broader "definition of
mitigating circumstances [that] includes facts concerning the defendant or
any other circumstance that the jury might find mitigating." Id. at 177
(Cherry and Saitta, JJ., dissenting). Because of this disconnect between
the instruction and the mitigation statute, NRS 200.035, the instruction
likely confused the jury and improperly limited its consideration of
mitigating evidence. Id. at 177-78. In Watson, the instruction was
particularly problematic because the jury found no mitigating
circumstances despite the presentation of evidence showing that Watson
suffered from mental illness and received psychiatric treatment. Id. at
178-79.
All of the concerns that I expressed in Watson apply with
equal force in this case. The jury was presented with compelling
mitigation evidence. Burnside lived with a loving aunt until her death
when he was eight years old. While living with her, Burnside was a very
happy child and attended church and a local Catholic school. His aunt's
death left him devastated, and he became aggressive and hard to handle.
As a result, Burnside was shuffled from one relative to another. Family
members related that he was smart and a good student in school. He
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wanted to live with his mother and struggled to understand why he did
not live with her when all of his siblings resided with her. Like many of
his family members, Burnside became involved in drugs and alcohol.
Though the jury was presented with 17 mitigating circumstances related
to this evidence, largely centered on the lack of parental involvement in
his upbringing, the trauma of losing his beloved aunt, his exposure to
criminals and violence at an early age, his separation from his siblings
and his status as a victim of violence, and the present support of his
family, the jury found none of the mitigating circumstances proffered.
In my view, Burnside's efforts to convince the jury that he
deserved a sentence less than death were thwarted by a mitigation
instruction that likely led the jurors to believe that evidence of his
troubled childhood was immaterial to their sentencing determination.
Dismissing the jury's rejection of the proffered mitigating circumstances
simply as an indicator of the quality of the mitigation case presented, as
the majority does here, ignores the significant flaw in the mitigation
instruction. That conclusion also ignores a critical constitutional
precept—"[t]he Eighth Amendment requires that the jury be able to
consider and give effect to all relevant mitigating evidence," Boyde v.
California, 494 U.S. 370, 378-79 (1990), which encompasses any aspect of
the defendant's character and record in addition to the circumstances of
the offense, Lockett v. Ohio, 438 U.S. 586, 604 (1978); see Browning v.
State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008) (observing that focus of
capital penalty hearing is defendant's character, record, and
circumstances of offense); McKenna v. State, 114 Nev. 1044, 1052, 968
P.2d 739, 744 (1998) ("[A] defendant's character and record are relevant to
the jury's determination of the appropriate sentence for a capital crime.").
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Justice demands clear, constitutionally sound instruction to guide the
jury's discretion in imposing punishment in a capital case, and justice
dictates more than mere conjecture concerning the effect of a confusing
and inaccurate mitigation instruction. As in Watson, there is a reasonable
likelihood that the instruction prevented the jury from considering
relevant mitigation evidence in this case and therefore a new penalty
hearing is required.
Although the mitigation instruction is by far the most
troubling error committed in this case, I believe that three other matters
reinforce the need for a new penalty hearing. In particular, two pieces of
evidence were erroneously admitted—a statement suggesting that
Burnside was a pimp and a photograph of him holding an assault rifle.
This evidence was impalpable and irrelevant. Additionally, the
prosecutor's argument that McKnight was not eligible for the death
penalty was gratuitously misleading and possibly led to the jurors'
rejection of Burnside's proffered mitigating circumstance that McKnight
was not facing the death penalty. While standing alone these errors are
insufficient to warrant a new penalty hearing, the admission of irrelevant
and impalpable evidence, further painting Burnside as a bad person, and
misleading argument served to highlight the imbalance in the proceedings
created by an improper instruction that likely led the jury to disregard the
bulk of his mitigation evidence.
The cumulative effect of the errors identified above is further
amplified by the particular nature and circumstances of the murder in this
case. All first-degree murders are appalling and that is true here as well.
However, the death penalty is reserved for those defendants who are
characterized as the "worst of the worst." See Roper v. Simmons, 543 U.S.
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551, 568 (2005) ("Capital punishment must be limited to those offenders
who commit 'a narrow category of the most serious crimes' and whose
extreme culpability makes them the most deserving of execution"
(quoting Atkins v. Virginia, 536 U.S. 304,319 (2002))). Something about
the crime or Burnside's character must propel him to the level of the
"worst of the worst." The murder here involved a robbery where the
victim was shot and killed. The facts and circumstances are not especially
egregious or shocking on the spectrum of death penalty cases. That the
facts and circumstances created a less than compelling call for the death
penalty heightens the impact of the errors committed and resulted in a
penalty hearing where Burnside was hampered in his efforts to counter
the prosecution's entreaty to the jury that a death sentence was justified
in this instance.
All of these elements—the flawed mitigation instruction, the
admission of irrelevant and impalpable evidence, the prosecutor's
misleading argument, and the weak evidentiary support for a death
sentence—combined to produce an unfair penalty hearing. Therefore, I
would remand this case for a new penalty hearing. Hernandez v. State,
118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002) ("The cumulative effect of
errors may violate a defendant's constitutional right to a fair trial even
though errors are harmless individually ")
Finally, the Sixth Amendment to the United States
Constitution guarantees criminal defendants the right to a trial by a fair
and impartial jury. Irvin v. Dowd, 366 U.S. 717, 722 (1961). A sleeping
juror strikes at the heart of a defendant's constitutional right to a fair
trial. See United States v. McKeighan, 685 F.3d 956, 973 (10th Cir. 2012)
(observing that "[a] defendant could be deprived of the Fifth Amendment
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right to due process or the Sixth Amendment right to an impartial jury if
jurors fall asleep and are unable to fairly consider the defendant's case").
Although Burnside's claim concerning a sleeping juror does not require
reversal in this instance, I remind district court judges to tread carefully
in this area and take every precaution to fully explore a claim that a juror
is sleeping during proceedings.
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SAITTA, J., dissenting:
I dissent. For the reasons expressed in my dissent in Watson
v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157 (2014), regarding the
erroneous mitigation instruction—the same instruction given here, I
would reverse the judgment of conviction and remand this matter to the
district court for a new penalty hearing. As I observed in Watson, there is
a significant disconnect between the instruction and the broad definition
of mitigation articulated in NRS 200.035. Here, as in Watson, that
disconnect likely confused the jury and improperly limited its
consideration of the mitigating evidence presented. In a case where the
circumstances of the murder make the death penalty a close call, the jury's
rejection of all 17 of Burnside's mitigating circumstances notwithstanding
the compelling mitigation evidence introduced exposes the prejudicial
impact of a flawed mitigation instruction. Because there is a reasonable
likelihood the instruction interfered with the jury's consideration of the
mitigation evidence introduced, the penalty hearing was fundamentally
unfair and the death sentence cannot be upheld with any confidence.
ci
Consequently, a new penalty is necessary. 4--
d
i
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J.
Saitta
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