the Jack-in-the-Box. As the witness went to call 9-1-1, she observed the 

two men walking around the drive-thru at the Jack-in-the-Box. After 

placing the 9-1-1 call, she observed the two men running back to the white 

car. From video surveillance photographs, the witness identified 

McKnight and Burnside as the men she saw after the shooting based on 

their clothing. She identified McKnight as the driver of the white car. 

Other evidence connected McKnight to Hardwick's murder. 

The clothing that McKnight and Burnside were wearing when they were 

recorded by the Mandalay Bay surveillance cameras matched the clothing 

worn by the men in the Jack-in-the-Box video surveillance. McKnight's 

mother owned a white Mazda, which she had loaned to McKnight. After 

the murder, McKnight approached a family friend, Albert Edmonds, and 

asked Edmonds to store a car in Edmonds' garage. Edmonds agreed. The 

following day, McKnight's mother retrieved the car from Edmonds' garage. 

During a search of Edmonds' home police found 9mm ammunition in a 

room in which McKnight had stayed in December 2006. Eight 9mm shell 

casings had been recovered from the Jack-in-the-Box drive-thru, all fired 

from a single firearm. McKnight's and Burnside's cell phone records 

showed that calls made from or received by their cell phones in the hours 

surrounding the murder were handled by cell phone towers near the 

Mandalay Bay. 

A jury convicted McKnight of first-degree murder with the use 

of a deadly weapon, robbery with the use of a deadly weapon, conspiracy to 

commit robbery, and burglary. He was sentenced to 35 to 156 months in 

prison for robbery with the use of a deadly weapon, plus an equal and 

consecutive term for the deadly weapon enhancement; 13 to 60 months in 

prison for conspiracy to commit robbery; 22 to 96 months in prison for 

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burglary; and life in prison without the possibility of parole for murder 

plus an equal and consecutive term for the deadly weapon enhancement, 

to run consecutively to the other counts. 1This appeal followed. 

McKnight raises several claims of trial error, all of which we 

conclude lack merit for the reasons explained below. 

Motion to impanel separate jury or sever trial 

McKnight contends that the district court abused its 

discretion by denying his motion to empanel a separate jury or, 

alternatively, motion for severance. In particular, he argues that his Sixth 

and Fourteenth Amendment rights to a fair and impartial jury were 

violated because a death qualified jury determined his guilt. The United 

States Supreme Court has rejected the argument that a defendant tried 

with a codefendant who is facing the death penalty is deprived of his right 

to an impartial jury when tried by a death qualified jury, see Buchanan v. 

Kentucky, 483 U.S. 402, 419-20 (1987), and we have observed that under 

Witherspoon v. Illinois, 391 U.S. 510, 520 n.18 (1968), we are "not required 

to presume that a death-qualified jury is biased in favor of the 

prosecution," McKenna v. State, 101 Nev. 338, 344, 705 P.2d 614, 618 

(1985). Rather, a defendant bears "the burden of establishing the nonneutrality of the jury." Id. McKnight makes no argument that any seated 

juror was biased against him. Nor does he substantiate his claim that he 

was deprived of his right to a jury that represents a fair cross-section of 

the community due to the exclusion of jurors who could not qualify for a 

capital trial. McKnight has not shown bias or non-neutrality by any juror, 

1McKnight and Burnside were tried together. Burnside was 

sentenced to death for the murder. 

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and he was not entitled to a severance of the trial solely because the jury 

was death qualified. We further reject his contention that he was entitled 

to a separate jury because it is not authorized by Nevada law. See Ewish 

v. State, 110 Nev. 221, 232, 871 P.2d 306, 314 (1994). Therefore, the 

district court did not abuse its discretion by denying his motion. See 

Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185 (2008). 

Batson challenges 

McKnight contends that the district court abused its 

discretion by denying his challenge to the prosecution's peremptory strikes 

against three prospective jurors (nos. 124, 183, and 191) under Batson v. 

Kentucky, 476 U.S. 79 (1986); see also Purkett v. Elem, 514 U.S. 765, 767 

(1995) (summarizing the three-step Batson analysis), because the 

prosecutor's reasons for striking the prospective jurors were a pretext for 

racial discrimination. The prosecution's strikes against these jurors were 

grounded in its assertions that each of the jurors provided inconsistent 

views regarding the death penalty in their questionnaires as compared to 

their answers during voir dire. We conclude that the record supports the 

district court's determination that the prosecution proffered race-neutral 

reasons for striking the three prospective jurors and that there was no 

evidence of discrimination. Accordingly, the district court did not abuse 

its discretion by denying McKnight's Batson challenges. Thomas v. State, 

114 Nev. 1127, 1136-37, 967 P.2d 1111, 1117-18 (1998); Washington v. 

State, 112 Nev. 1067, 1071, 922 P.2d 547, 549 (1996). 

Sleeping juror 

McKnight argues that the district court abused its discretion 

by not conducting a hearing after being alerted that a juror was sleeping 

during trial. At the close of evidence and the settling of instructions, 

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Defense counsel advised the district court that juror 6 appeared to have 

been sleeping "numerous times" during trial. 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 juror 6 sleeping. We conclude that 

McKnight 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 juror for abuse of discretion). 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." Santad 

v. United States, 812 A.2d 226, 230 (D.C. 2002) (internal quotation marks 

omitted); see also United States v. Carter, 433 F.2d 874, 876 (10th Cir. 

1970). Because the trial judge in this case regularly observed the jurors 

and never saw juror 6 sleeping, there was no need to investigate further. 

In addition, McKnight 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 conclude that the 

district court did not abuse its discretion. 2 

2This court recently rejected a similar argument by codefendant 

Burnside. Burnside v. State, 130 Nev., Adv. Op. 40, 352 P.3d 627, 638-39 

(2015). 

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Motion to suppress identification 

McKnight argues that the district court erred by denying his 

motion to suppress identification testimony from Syncerrity Ray. There 

are two aspects to his claim. First, he contends that the detective involved 

in a photographic lineup did not follow proper procedure. In this, he 

points to the detective's statement during the identification procedure that 

Ray "should not worry about being right or wrong" but should identify 

anyone in the photographs that she believed she saw on the night of the 

murder. McKnight also challenges the detective's suggestion that Ray 

could identify someone from the photographs despite her statements that 

"it was hard" and she "did not know." McKnight argues that the 

detective's statements contravened instructions given to Ray that she did 

not have to identify anyone in the photographs. Considering the 

comments in context, we conclude that they did not render the 

identification procedure suggestive, as the detective did not suggest to Ray 

that she had to identify anyone in the photographs. 

Second, McKnight argues that suppression was required 

because an interview where Ray identified the two men involved in the 

shooting from photographs was not recorded. Specifically, he contends 

that the basis for the detective's decision not to record this particular 

interview Ray's apprehension and fear—is not credible, as Ray had 

previously participated in recorded police interviews. However, McKnight 

provides no authority requiring the recording of Ray's interview. Nor does 

he explain how the lack of a recording rendered the identification 

procedure suggestive. Accordingly, we conclude that the district court did 

not abuse its discretion. 

6 
Annotation and narration of surveillance videos 

McKnight argues that the district court abused its discretion 

by allowing annotations to be placed upon video surveillance images and 

by allowing police detectives to narrate the videos as they were played for 

the jury, describing what the videos showed. He contends that the 

annotation and narration invaded the province of the jury because the 

detectives had no prior familiarity with him or Burnside and were in no 

better position than the jurors to determine the identity of the men 

depicted in the videos and whether the men were stalking Hardwick. 

The police detectives' testimony that McKnight and Burnside 

were the individuals in the surveillance videos and the alias annotations 

were based on other identification evidence that was admitted before the 

detectives testified, including 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. Because the detectives did not independently identify the men, 

they were not required to have some prior knowledge or familiarity with 

the men or be 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 Rossano u. 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 NRS 50.265 "if there is some basis for concluding that 

the witness is more likely to correctly identify the defendant from the 

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photograph than is the jury" (internal quotation marks omitted)). As to 

McKnight's complaint that the detective was improperly allowed to opine 

that the men in the videotape were surveilling Hardwick, the district court 

admonished the jurors that the detective was expressing his opinion as to 

the content of the Mandalay Bay surveillance video and that they would 

have the opportunity to review the videos in the jury room and draw their 

own conclusions as to what the videos showed. We discern no error. 3 

McKnight also argues that the district court erred by refusing 

to give his proposed 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 admonishment noted 

above and other instructions on matters related to witness credibility and 

believability, witnesses with special knowledge, and drawing reasonable 

inferences from the evidence, McKnight has not shown 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). 

Cell phone records 

McKnight 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. In this, he contends that the 

evidence amounted to expert testimony and neither of the prosecution's 

3This court rejected a similar argument by Burnside. Burnside, 352 

P.3d at 639-40. 

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notices of expert witnesses identified the records custodian and the 

detective as experts. 

We recently dealt with the scope of lay and expert witness 

testimony in this matter in Burnside v. State, 130 Nev., Adv. Op. 40, 352 

P.3d 627, 635-37 (2015); see NRS 50.265 (lay witness testimony); NRS 

50.275 (expert witness testimony). Determining whether the challenged 

evidence constitutes expert testimony "lies with a careful consideration of 

the substance of the testimony—does the testimony concern information 

within the common knowledge of or capable of perception by the average 

layperson or does it require some specialized knowledge or skill beyond 

the realm of everyday experience?" Burnside. 352 P.3d at 636. 

As to the detective's testimony, he reviewed the cell phone 

records and cell site information and used that data to create a map of 

calls made with cell phones registered to McKnight and Burnside 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. We 

conclude here, as we did in Burnside, that the detective's testimony did 

not fall within the scope of expert testimony and therefore the prosecution 

had no obligation to notice the detective as an expert witness. Therefore, 

the district court did not abuse its discretion in this regard. 

As to the SprintiNextel record custodian, his testimony 

centered on explaining to the jury how cell phone signals are transmitted 

from cell sites. We concluded in Burnside that 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 

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employment." Id. at 637. Nevertheless, reversal of the judgment of 

conviction is not warranted considering other evidence placed McKnight 

and Burnside at Mandalay Bay during the relevant time period. See NRS 

178.598 (harmless error rule); Valdez v. State, 124 Nev. 1172, 1189, 196 

P.3d 465, 476 (2008) (observing that nonconstitutional error requires 

reversal "only if the error substantially affects the jury's verdict"). 4 

Jury instructions 

McKnight argues that the district court abused its discretion 

by giving several jury instructions, including instructions on robbery, 

coconspirator statements, and "material elements" of the offenses, implied 

malice, premeditation and deliberation, and equal and exact justice. He 

also asserts that the district court erred by not giving his proposed 

instruction. 

Robbery 

McKnight argues that the district court erred by overruling 

Ins' objection to the robbery and felony-murder instructions because 

robbery should be defined as a specific intent offense. He recognizes that 

this court determined in Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 

1228-29 29 (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 

4McKnight also challenges the admission of the cell phone tower 

records based on lack of notice. While the substance of his argument is not 

entirely clear, it appears that his complaint is linked to the prosecution's 

failure to notice the records custodian and detective as experts. To the 

extent that it is an independent claim, the prosecution's notice of lay 

witnesses identified the Sprint/Nextel record custodian and the detective, 

and he does not allege a discovery violation occurred with regard to 

records. 

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urges the court to overrule Litteral and return robbery to its common law 

classification as a specific intent offense given the ambiguity in NRS 

200.380 as to the requisite intent, the common law history, and the rule of 

lenity. As we recently observed in Burnside, we are not persuaded to 

depart from Litteral. 352 P.3d at 644. 

McKnight further argues robbery should be treated as a 

specific intent offense when it is used to support a felony-murder charge. 

However, 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. 5 

Coconspirator statements 

McKnight 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 

standard. We disagree. 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 

Cray, 95 Nev. 522, 524, 598 P.2d 623, 624 (1979). The instruction does not 

5To the extent McKnight contends that robbery should be treated as 

a specific intent offense to satisfy the constitutionally required narrowing 

function to impose a death sentence, his contention is irrelevant because 

he was not subject to the death penalty. 

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suggest that McKnight may be convicted of conspiracy or a conspiracy 

theory of liability based on slight evidence instead of the constitutionally 

required beyond-a-reasonable-doubt standard. Additionally, two other 

instructions advised the jury that the State had to prove McKnight's guilt 

beyond a reasonable doubt. Accordingly, the district court did not abuse 

its discretion by giving the instruction. 6 See Crawford v. State, 121 Nev. 

744, 748, 121 P.3d 582, 585 (2005). 

"Material element" 

McKnight contends that the district court abused its 

discretion by giving instruction 38, which advised the jury in pertinent 

part: "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 argues that 

because the instruction does not identify which elements are "material," 

the jury was left to speculate which elements were "material." In 

Burnside, we concluded that although the "material element" language is 

unnecessary given the prosecution's burden to prove all elements of an 

offense beyond a reasonable doubt, that language did not suggest to the 

jury that the prosecution "carried a lesser burden of proof on any element 

or charged offense." 352 P.3d at 638. Where, as here, the instructions as a 

whole make it clear that the prosecution must prove every element of the 

crime, the reference to "material element" in the instruction is not so 

misleading or confusing as to warrant reversal. 

6This court rejected a similar argument by Burnside. Burnside v. 

State, 352 P.3d at 644. 

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McKnight's proposed instruction 

McKnight asserts that the district court abused its discretion 

by not giving the jury the following proposed instruction: "There is no 

legal duty to report to the authorities that another person had committed 

a crime." The district court rejected the instruction, concluding that it was 

duplicitous with other instructions. We agree. The jury was instructed 

that mere presence at the scene or knowledge of a crime is insufficient to 

establish guilt and that mere knowledge or approval of or acquiescence in 

the purpose of a conspiracy is insufficient to impute criminal liability. In 

addition, the jury was instructed on the elements of the offenses and the 

prosecution's burden of proof. We conclude that these instructions 

sufficiently resolved McKnight's apparent concern that his convictions 

could rest upon his mere presence when the crimes occurred or his 

knowledge of them. 

Remaining instructions 

McKnight challenges two instructions given regarding implied 

malice and equal and exact justice; we have consistently upheld those 

instructions. See, e.g., Leonard v. State, 117 Nev. 53, 79117 P.3d 397, 413 

(2001) (upholding implied malice instruction; Leonard v. State, 114 Nev. 

1196, 1209, 969 P.2d 288, 296-97 (1998) (upholding equal and exact justice 

instruction). He also challenges the first-degree murder instruction (no. 

26), specifically that portion relating to premeditation. The instruction as 

a whole comports with Byford v. State, 116 Nev. 215, 237-38, 994 P.2d 700, 

714 (2000), and we are not persuaded to reconsider Byford. 

Sentencing evidence 

McKnight contends that the district court improperly 

admitted, during sentencing, a preliminary hearing transcript related to a 

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Gibbons 

pending murder prosecution against him. Relying on Apprendi v. New 

Jersey, 530 U.S. 466 (2000), he reasons that the prosecution improperly 

used that evidence to enhance his sentence to life without the possibility of 

parole. While the prosecution first introduced testimony regarding 

McKnight's pending murder prosecution, McKnight introduced the 

preliminary hearing transcript and therefore he cannot complain about its 

admission. Moreover, as his sentence fell within the statutory limits, see 

NRS 200.030(4)(b), evidence of a pending murder prosecution did not 

violate Apprendi. Further, evidence of a defendant's other crimes is 

admissible at sentencing as long as the evidence is not impalpable or 

highly suspect, see Homiele v. State, 108 Nev. 127, 138, 825 P.2d 600, 607 

(1992), and McKnight has not shown that evidence of his pending murder 

prosecution is impalpable or highly suspect. 

Having considered McKnight's arguments and concluded that 

no, relief is warranted, we 

ORDER the judgrit'of conviction AFFIRMED.' 

/ sc\ 

,J. 

Pickering 

'McKnight argues that cumulative error requires reversal of the 

judgment of conviction. Because McKnight demonstrated only one error 

regarding the testimony of the Sprint/Nextel records custodian, there are 

no errors to cumulate. 

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ittirtMgriA 
cc: Christopher R. Oram 

Attorney General/Carson City 

Clark County District Attorney 

Eighth Judicial District Court 

Eighth District Court Clerk 

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