Burnside v. State (Nev. Supreme Ct. – June 25, 2015)

Pursuant to NRS 50.265, a lay witness may testify to opinions or inferences that are rationally based on the perception of the witness; and helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue. NRS 50.275 provides that a qualified expert may testify to matters within their special knowledge, skill, experience, training or education when scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.

The issue is whether testimony related to cell phone tower transmissions falls within the realm of expert testimony.

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 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.

About a week later, the police showed a 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, Edmonds, and asked Edmonds to store a car in Edmonds’ garage. Edmonds agreed. The following day, McKnight’s mother retrieved the car from Edmonds’ garage. During a search of Edmonds’ home, police found 9mm ammunition in a room in which McKnight had stayed in December 2006. Eight 9mm shell casings had been recovered from the Jack-in-the-Box drive-thru, all fired from a single firearm. 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. After concluding that the aggravating circumstance or circumstances outweighed any mitigating circumstance or circumstances, the jury imposed a death sentence for the murder. Burnside appealed.

Burnside argued, among other issues, 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 complained 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 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.

The Nevada Supreme Court explained that 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 specialized knowledge or skill beyond the realm of everyday experience?

The Court further explained that 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. The Court concluded 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. Therefore, the Court found that the district court did not err by admitting the detective’s testimony as that of a lay witness.

The Court noted that the Sprint/Nextel record custodian’s testimony was 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 was 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, the Court found that his testimony constituted expert testimony.

Therefore, the Court concluded that 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, had not explained what he would have done differently had proper notice been given, and he did not request a continuance. The Court explained that it was not convinced that the appropriate remedy for the error would have been exclusion of the testimony. But, even if that were the appropriate remedy, the Court was also 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 a witness, both of which placed Burnside and McKnight at Mandalay Bay during the relevant time period.