                                                    131 Nev., Advance Opinion 40
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  TIMOTHY R. BURNSIDE,                                 No: 56548
                  Appellant,
                    vs.                                                           FILED
                  THE STATE OF NEVADA,
                  Respondent.                                                      JUN 2 5 2015
                                                                              c    _   JE K LINDEMAN


                                                                             BY_
                                                                                CHIEF DEP      bLERK

                             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

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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 drive-
                 thru at the Jack-in-the-Box. After placing the 9-1-1 call, she observed the
                 two men running back to the white car. About a week later, the police
                 showed the witness a set of photographs, and she tentatively identified
                 McKnight as the driver of the white car but was unable to identify the
                 passenger. Subsequently, after reviewing still photographs taken from the
                 surveillance videos obtained from the Mandalay Bay, she was able to
                 identify Burnside and McKnight as the men she saw after the shooting
                 based on their clothing.
                             Other evidence linked Burnside to Hardwick's murder. The
                 clothing that Burnside and McKnight were wearing when they were
                 recorded by the Mandalay Bay surveillance cameras matched the clothing
                 worn by the men in the Jack-in-the-Box video surveillance. McKnight's
                 mother owned a white Mazda, which she had loaned to McKnight. In
                 December 2006, McKnight approached a family friend, Albert Edmonds,
                 and asked Edmonds to store a car in Edmonds' garage. Edmonds agreed.
                 The following day, McKnight's mother retrieved the car from Edmonds'
                 garage. During a search of Edmonds' home, police found 9mm

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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 prior-
                      violent-felony-conviction aggravating circumstance based on his conviction
                      for attempted battery with substantial bodily injury.
                      Guilt phase claims
                           Admission of cell phone tower records and testimony
                                  Burnside argues that the district court abused its discretion
                      by admitting the defendants' cell phone records, which showed the location
                      of cell phone towers that handled their cell phone calls, and by allowing a
                      cell phone company records custodian to testify about those records and
                      signal transmissions and a detective to testify about a map he created to
                      show the locations of the cell phone towers. He complains that this
                      evidence amounted to expert testimony, and because the State failed to
                      notice the cell phone records custodian and the detective as expert
                      witnesses, the evidence should have been excluded.
                                  The State's notices of expert witnesses did not list any cell
                      phone records custodians; its notice of lay witnesses identified records

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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-in-
                the-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 3 and other


                      3 During 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.

                           4 Burnside 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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                              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-the-
                 Box. 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." 5 NRS 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


                      5 Beforea 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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                  (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-a-
                        reasonable-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-felony-
                        conviction 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.
                 Where the prior conviction at issue is based on a guilty plea, the fact-

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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 gang-
                     related. 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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                            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



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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. 8 Second, 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,

                       7 We 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.

                       8 We 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-a-
                       reasonable-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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             I9
                       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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                (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

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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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                                Because review of this appeal reveals no errors that warrant
                  reversal of Burnside's convictions or death sentence, we affirm the
                  judgment of conviction.




                                                       Gibbons

                  We concur:



                       /344A. tile-s-rtn.         C.J.
                  Hardesty


                        51/4 A_ce,--S-a-11        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.
                                                            ci
                  Consequently, a new penalty is necessary. 4--
                                                              d
                                                              i
                                                                -- _


                                                                                            J.
                                                            Saitta




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