352 P.3d 627 (Nev. 2015), 56548, Burnside v. State

Docket Nº:56548
Citation:352 P.3d 627
Opinion Judge:GIBBONS, J.
Party Name:TIMOTHY R. BURNSIDE, Appellant, v. THE STATE OF NEVADA, Respondent
Attorney: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 At...
Judge Panel:By the Court, GIBBONS, J. We concur: Hardesty, C.J., Parraguirre, J., Douglas, J., Pickering, J. CHERRY, J., dissenting. SAITTA, J., dissenting. We concur: Hardesty, C.J., Parraguirre, J., Douglas, J., Pickering, J. CHERRY, J., dissenting: SAITTA, J., dissenting:
Case Date:June 25, 2015
Court:Supreme Court of Nevada
 
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352 P.3d 627 (Nev. 2015)

TIMOTHY R. BURNSIDE, Appellant,

v.

THE STATE OF NEVADA, Respondent

No. 56548

Supreme Court of Nevada

June 25, 2015

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Appeal from a judgment of conviction in a death penalty case. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.

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.

By the Court, GIBBONS, J. We concur: Hardesty, C.J., Parraguirre, J., Douglas, J., Pickering, J. CHERRY, J., dissenting. SAITTA, J., dissenting.

OPINION

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BEFORE THE COURT EN BANC.

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 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

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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 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 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 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

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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 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.1 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 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...

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