Death sentence upheld in 2006 drive-thru slaying

CARSON CITY — A divided Nevada Supreme Court on Thursday upheld the murder conviction and death sentence of Timothy “Stone” Burnside in the 2006 fatal shooting of a former professional basketball player as he waited at the drive-thru of a Jack in the Box in Henderson.

A Clark County jury in 2010 found Burnside guilty of first-degree murder with use of a deadly weapon and other felonies in the death of Kenneth Hardwick. The jury also sentenced him to death.

Burnside’s co-defendant, Derrick “Suave” McKnight, 31, was also found guilty of first-degree murder with use of a deadly weapon and sentenced to life without parole. Prosecutors alleged McKnight drove the getaway vehicle.

Hardwick played professional basketball in the Continental Basketball League in France, Holland and Ecuador.

Authorities said the shooting was part of a scheme to rob Hardwick, a plan that originated at the Foundation Room nightclub at Mandalay Bay.

The two-week trial featured video footage of Burnside and McKnight following Hardwick from the club and to his vehicle as he left Mandalay Bay in the early morning hours of Dec. 5, 2006.

Once at the Jack in the Box, Burnside shot at Hardwick eight times and then stole a silver cigar case, authorities said. Hardwick died at the scene.

Burnside’s conviction and sentence were automatically appealed to the Supreme Court for review.

In the decision written by Justice Mark Gibbons, the five-member court majority acknowledged that a prior felony conviction for attempted battery was improperly used as an aggravating circumstance by prosecutors in seeking the death penalty.

But the improper use of the aggravator does not warrant reversal of the death sentence because there were no offsetting circumstances presented in Burnside’s favor that were accepted by the jury, the court said.

Other claims brought by Burnside’s attorneys seeking a new trial or penalty hearing were rejected as well.

In his dissent, Justice Michael Cherry argued that a new penalty hearing was warranted because of what he said was an erroneous jury instruction regarding mitigating circumstances.

There were 17 mitigating circumstances offered to the jury regarding a lack of parental involvement, Burnside’s exposure to criminals and violence at an early age and other factors, Cherry said. But the jury, due likely to the flawed jury instruction regarding mitigation circumstances, found none of the circumstances as being relevant to its sentencing determination, he said.

Other errors also warrant a new penalty hearing, including the erroneous admission of two pieces of evidence, Cherry said.

Justice Nancy Saitta dissented as well, also citing what she called an erroneous mitigating circumstance jury instruction.

Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801