McKnight v. State, 121815 NVSC, 56654

Docket Nº:56654
Party Name:DERRICK L. MCKNIGHT, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Saitta J., Gibbons J., Pickering J.
Case Date:December 18, 2015
Court:Supreme Court of Nevada
 
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DERRICK L. MCKNIGHT, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 56654

Supreme Court of Nevada

December 18, 2015

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of burglary, conspiracy to commit robbery, robbery with the use of a deadly weapon, and first-degree murder with the use of a deadly weapon. Eighth Judicial District Court. Clark County; Kathy A. Hardcastle, Judge.

After watching and following Kenneth Hardwick at the Mandalay Bay Resort and Casino in Las Vegas for quite some time, appellant Derrick McKnight and Timothy Burnside followed Hardwick when he exited the parking structure of the property. Shortly thereafter, Hardwick pulled up to a Jack-in-the-Box drive-thru window. A video recording obtained from a surveillance camera showed a man point a gun and shoot into Hardwick's car several times. A Jack-in-the-Box employee saw one of the two men involved in the shooting retrieve a small silver case from Hardwick's car. Hardwick died as a result of his injuries.

A witness heard the gunshots as she was walking to her car in a nearby parking lot. 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 jacket and put it in the car. The driver got out of the car and also removed a black 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. From video surveillance photographs, the witness identified McKnight and Burnside as the men she saw after the shooting based on their clothing. She identified McKnight as the driver of the white car.

Other evidence connected McKnight to Hardwick's murder. The clothing that McKnight and Burnside were wearing when they were recorded by the Mandalay Bay surveillance cameras matched the clothing worn by the men in the Jack-in-the-Box video surveillance. McKnight's mother owned a white Mazda, which she had loaned to McKnight. After the murder, McKnight approached a family friend, Albert Edmonds, and asked Edmonds to store a car in Edmonds5 garage. Edmonds agreed. The following day, McKnight's mother retrieved the car from Edmonds' garage. During a search of Edmonds' home police found 9mm ammunition in a room in which McKnight had stayed in December 2006. Eight 9mm shell casings had been recovered from the Jack-in-the-Box drive-thru, all fired from a single firearm. McKnight's and Burnside's cell phone records showed that calls made from or received by their cell phones in the hours surrounding the murder were handled by cell phone towers near the Mandalay Bay.

A jury convicted McKnight of first-degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, conspiracy to commit robbery, and burglary. He was sentenced to 35 to 156 months in prison for robbery with the use of a deadly weapon, plus an equal and consecutive term for the deadly weapon enhancement; 13 to 60 months in prison for conspiracy to commit robbery; 22 to 96 months in prison for burglary; and life in prison without the possibility of parole for murder plus an equal and consecutive term for the deadly weapon enhancement, to run consecutively to the other counts.1 This appeal followed.

McKnight raises several claims of trial error, all of which we conclude lack merit for the reasons explained below.

Motion to impanel separate jury or sever trial

McKnight contends that the district court abused its discretion by denying his motion to empanel a separate jury or, alternatively, motion for severance. In particular, he argues that his Sixth and Fourteenth Amendment rights to a fair and impartial jury were violated because a death qualified jury determined his guilt. The United States Supreme Court has rejected the argument that a defendant tried with a codefendant who is facing the death penalty is deprived of his right to an impartial jury when tried by a death qualified jury, see Buchanan v. Kentucky, 483 U.S. 402, 419-20 (1987), and we have observed that under Witherspoon v. Illinois, 391 U.S. 510, 520 n.18 (1968), we are "not required to presume that a death-qualified jury is biased in favor of the prosecution, " McKenna v. State, 101 Nev. 338, 344, 705 P.2d 614, 618 (1985). Rather, a defendant bears "the burden of establishing the non-neutrality of the jury." Id., McKnight makes no argument that any seated juror was biased against him. Nor does he substantiate his claim that he was deprived of his right to a jury that represents a fair cross-section of the community due to the exclusion of jurors who could not qualify for a capital trial. McKnight has not shown bias or non-neutrality by any juror, and he was not entitled to a severance of the trial solely because the jury was death qualified. We further reject his contention that he was entitled to a separate jury because it is not authorized by Nevada law. See Ewish v. State, 110 Nev. 221, 232, 871 P.2d 306, 314 (1994). Therefore, the district court did not abuse its discretion by denying his motion. See Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008).

Batson challenges

McKnight contends that the district court abused its discretion by denying his challenge to the prosecution's peremptory strikes against three prospective jurors (nos. 124, 183, and 191) under Batson v. Kentucky, 476 U.S. 79 (1986); see also Purkett v. Elem, 514 U.S. 765, 767 (1995) (summarizing the three-step Batson analysis), because the prosecutor's reasons for striking the prospective jurors were a pretext for racial discrimination. The prosecution's strikes against these jurors were grounded in its assertions that each of the jurors provided inconsistent views regarding the death penalty in their questionnaires as compared to their answers during...

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