                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. 1 This appeal followed.
                            McKnight raises several claims of trial error, all of which we
                conclude lack merit for the reasons explained below.
                Motion to impanel separate jury or sever trial
                            McKnight contends that the district court abused its
                discretion by denying his motion to empanel a separate jury or,
                alternatively, motion for severance. In particular, he argues that his Sixth
                and Fourteenth Amendment rights to a fair and impartial jury were
                violated because a death qualified jury determined his guilt. The United
                States Supreme Court has rejected the argument that a defendant tried
                with a codefendant who is facing the death penalty is deprived of his right
                to an impartial jury when tried by a death qualified jury, see Buchanan v.
                Kentucky, 483 U.S. 402, 419-20 (1987), and we have observed that under
                Witherspoon v. Illinois, 391 U.S. 510, 520 n.18 (1968), we are "not required
                to presume that a death-qualified jury is biased in favor of the
                prosecution," McKenna v. State,    101 Nev. 338, 344, 705 P.2d 614, 618
                (1985). Rather, a defendant bears "the burden of establishing the non-
                neutrality of the jury." Id. McKnight makes no argument that any seated
                juror was biased against him. Nor does he substantiate his claim that he
                was deprived of his right to a jury that represents a fair cross-section of
                the community due to the exclusion of jurors who could not qualify for a
                capital trial. McKnight has not shown bias or non-neutrality by any juror,



                      1 McKnight   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


                      2 This 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.



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                   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



                      3 Thiscourt 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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                  ;4.11
                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


                      4 McKnight    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


                       5 To 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.



                      6 Thiscourt 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, 79 1 17 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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                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.




                Gibbons                                    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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