Burnside v. State

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Questions Presented

1. Whether testimony by a cell-phone-company records custodian concerning cell-site operation and signal transmission was expert testimony requiring notice, and whether the lack of notice required reversal.
2. Whether a detective's testimony concerning a map showing cell-tower locations was lay testimony or expert testimony.
3. Whether the reasonable-doubt instruction's reference to the State's burden to prove every 'material element' was impermissibly confusing.
4. Whether the joint trial should have been severed because of shared peremptory challenges, comparative evidence, or limitations on cross-examination.
5. Whether the district court abused its discretion by failing to investigate an allegation that a juror was sleeping.
6. Whether annotation and narration of surveillance videos and related identification testimony were admissible.
7. Whether statements by a codefendant were admissible as coconspirator statements and whether their admission violated Bruton.
8. Whether sufficient evidence supported the robbery and burglary convictions.
9. Whether robbery should be treated as a specific-intent offense, including when used as the predicate for felony murder.
10. Whether the jury instruction concerning coconspirator statements improperly permitted conviction on less than proof beyond a reasonable doubt.
11. Whether attempted battery with substantial bodily harm constituted a prior violent felony aggravating circumstance under NRS 200.033(2)(b), and whether the State introduced competent evidence establishing the required use or threat of violence.
12. Whether the invalid prior-violent-felony aggravator required reversal of the death sentence.
13. Whether the penalty hearing should have been bifurcated.
14. Whether various penalty-phase evidentiary rulings, prosecutorial arguments, and notice issues constituted reversible error.
15. Whether the mitigation instruction, weighing instruction, failure to find mitigation, and Nevada's death-penalty scheme violated constitutional requirements.
16. Whether cumulative error required reversal of the convictions or death sentence.

Holdings

1. Testimony explaining how cell-phone signals are transmitted among cell sites, including why a particular tower may handle a call, constitutes expert testimony because it requires specialized knowledge beyond common experience.
2. A detective's testimony explaining a map he created from cell-phone records and cell-site information was lay testimony rather than expert testimony.
3. Although the phrase 'material elements' is unnecessary and should be omitted from future instructions, its use here did not so mislead or confuse the jury as to require reversal.
4. An attempt offense is not categorically excluded from NRS 200.033(2)(b). An attempted violent felony may qualify if the State proves that the overt act required for the attempt involved the use or threat of violence.
5. The State failed to prove that Burnside's prior conviction for attempted battery with substantial bodily harm involved the use or threat of violence, so the prior-violent-felony aggravating circumstance was invalid and had to be struck.
6. The invalid prior-violent-felony aggravating circumstance did not require reversal of the death sentence because the robbery aggravator remained valid, the jury found no mitigating circumstances, and the prior conviction remained admissible as other-matter evidence.
7. McKnight's statements to his mother and her acquaintance were admissible as statements made during and in furtherance of the conspiracy, and because they were nontestimonial, their admission did not violate Bruton or the Confrontation Clause.
8. The evidence was sufficient to support Burnside's robbery and burglary convictions as a coconspirator or aider and abettor.
9. Robbery remains a general-intent offense in Nevada, including when used to support a felony-murder theory.
10. The mitigation instruction and weighing instruction did not require reversal under the majority's analysis, and the jury was not required to find a mitigating circumstance merely because unrebutted evidence supported it.

Key quotations

Factual background

Burnside and Derrick McKnight followed Kenneth Hardwick after Hardwick left a Las Vegas casino. They pursued him to a Jack-in-the-Box, where a man wearing a black puffy jacket shot Hardwick several times and another man took a silver cigar case; Hardwick died from his wounds. Surveillance footage, witness testimony, vehicle and ammunition evidence, and cell-phone records linked Burnside and McKnight to the crime.

Procedural history

A Clark County jury convicted Burnside and imposed a death sentence for the murder. The district court imposed additional prison terms for the noncapital offenses. The Supreme Court of Nevada conducted review of the convictions and the death sentence, including the mandatory capital-sentence review required by Nevada law, and affirmed.