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Burnside v. State

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.


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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.


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 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

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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 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 defense 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.


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 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

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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 " [r]ationally 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 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, 150 N.H. 339, 839 A.2d 38, 46 (N.H. 2003) (" Lay testimony must be confined 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 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

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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. 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, 191 Md.App. 319, 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 if the error substantially affects the jury's verdict" ); see also Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (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.Rep. 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. 746, 751-52, 121 P.3d 582, 586-87 (2005); Gaxiola v. State, 121 Nev. 633, 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 deduce [that] the presumption of innocence did not apply to every element of the offense, but only to the elements it deemed material." 1999 OK CR 38, 989 P.2d 1017, 1037-38 (Okla. Crim. ...

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