131 Nev., Advance Opinion 40 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

TIMOTHY R. BURNSIDE, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No: 56548 

FILED 

JUN 2 5 2015 

c _ JE K LINDEMAN 

BY_ 

CHIEF DEP 

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 

bLERK 

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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 drivethru 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 priorviolent-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-inthe-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 3and other 

3During 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. 

4Burnside 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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10) 1947A .4044 
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-theBox. 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." 5NRS 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 

5Before a 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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(0) [947A 41/E9rD 
(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-areasonable-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-felonyconviction 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. 

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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 gangrelated. 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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ICA I947A dart° 
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 

SUPREME COURT 

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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. 8Second, 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, 

7We 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. 

8We 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-areasonable-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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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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(0) 1947A 4,214:4 
(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 

SUPREME COURT 

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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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Gibbons 

C.J. 

Because review of this appeal reveals no errors that warrant 

reversal of Burnside's convictions or death sentence, we affirm the 

judgment of conviction. 

We concur: 

/344A. tile-s-rtn. 

Hardesty 

51/4 A_ce,--Sa-1 - 1 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. 

Consequently, a new penalty is necessary. 4--d _ -- ci i 

Saitta 

J. 

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