Monday, Jan. 6, 2014 | 11:45 p.m.
A defense attorney told the Nevada Supreme Court on Monday that the death penalty given Timothy Burnside should be overturned because of errors at his trial in Las Vegas.
But Deputy District Attorney Marc Digiacomo argued there was "complete depravity" in the shooting death of Kenneth Hardwick at a Southern Nevada fast-food drive-thru in December 2006.
Clark County Special Public Defender JoNell Thomas argued the district court jury failed to consider mitigating circumstances in arriving at the death penalty.
The legal brief of the defense said Burnside was born out of wedlock, his mother drank alcohol during pregnancy and she abandoned him. He was raised by an aunt who died when he was 8 years old and he was exposed to criminal and gang violence at an early age.
Digiacomo argued he had a past criminal record. He said Burnside was a good-looking guy, highly intelligent and had several past offenses. He promised judges he would never repeat the crimes but he did.
Burnside and his co-defendant Derrick "Suage" McKnight followed the victim from the Mandalay Bay casino to a Jack in the Box, where he was shot eight times. McKnight stole a silver cigar box.
"They ran away laughing and joking," said Digiacomo, who described Hardwick as an "innocent victim." Hardwick was a former professional basketball player who was with the Detroit Pistons for a while and other international teams.
McKnight was sentenced to life in prison without parole.
The jury also found Burnside guilty of robbery, which was used as an aggravating circumstance to enhance his sentence to death. Thomas said there was no demand for money by Burnside "and nothing established robbery."
She also said that the prior offenses of Burnside were not violent crimes. He did not admit to robbery or assault, said Thomas.
But Digiacomo said Burnside pleaded guilty to a reduced charge of attempted battery with substantial bodily harm.
The defense, in its legal brief to the court, maintained there were numerous other errors made during the trial including that the death penalty is unconstitutional and the sentence was excessive given the facts of the case.
The court took the arguments under submission and will rule later.