                review the court's application of the law to those facts de novo.   Lacier v.
                Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).
                             The district court granted Arthur relief based upon three
                claims of ineffective assistance of trial counsel. The district court also
                concluded that the errors of counsel considered cumulatively amounted to
                ineffective assistance of counsel Giving appropriate deference to the
                district court's factual findings, we conclude as a matter of law that the
                district court erred in granting relief.
                             First, the State argues that the district court erred in
                determining that Arthur's trial counsel were ineffective for failing to
                investigate and interview a State's witness, Lori Rios. The State endorsed
                Rios as a witness, but listed her contact information as unknown. At the
                evidentiary hearing, defense counsel testified that they discussed Rios
                with the State in an effort to ascertain whether they should pursue
                further investigation of her potential testimony and whether the State
                actually possessed her contact information. During that conversation, the
                State informed counsel that the State had only listed Rios as a witness out
                of an abundance of caution as she was a family member of the victim who
                resided in Las Vegas and possibly could have pertinent information about
                the crime. The State reiterated to defense counsel that it did not possess
                Rios' contact information and informed defense counsel that the State was
                not likely to present Rios' testimony at trial. Defense counsel also
                conferred with Arthur, who indicated that he did not believe that Rios had
                any pertinent information. Defense counsel testified that, as a result of
                the conversations with the State and Arthur, they did not pursue further
                investigation of Rios' potential testimony.



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                                Rios, however, attended the trial and during a break, a
                    prosecutor spoke with Rios and learned that approximately one month
                    prior to the killing, Arthur had told her that God had sent him to kill the
                    victim. Defense counsel objected to Rios' testimony due to the lack of
                    contact information and the objection was overruled by the district court.
                    Counsel then cross-examined Rios at length regarding her failure to
                    disclose this information to the State or the police at any point prior to the
                    trial. The State argued in closing that Rios' testimony, combined with the
                    additional evidence presented at trial, demonstrated that Arthur acted
                    with premeditation and did not kill the victim in self-defense.
                                The district court concluded that counsel was ineffective for
                    failing to pursue further investigation of Rios and her potential testimony.
                    The district court's order states that had counsel been aware that Arthur
                    had told Rios that God wanted him to kill the victim, counsel would have
                    been aware of Arthur's psychological difficulties and chosen to pursue a
                    different defense. At the evidentiary hearing, the parties discussed the
                    potential for an insanity defense based in part on Rios' testimony that
                    Arthur was told to kill by God.
                                We conclude that the district court erred in concluding that
                    counsel's performances were deficient. "[Dlefense counsel has a duty 'to
                    make reasonable investigations or to make a reasonable decision that
                    makes particular investigations unnecessary."       State v. Love, 109 Nev.
                    1136, 1138, 865 P.2d 322, 323 (1993) (quoting Strickland, 466 U.S. at 691).
                    Defense counsel's "particular decision not to investigate must be directly
                    assessed for reasonableness in all the circumstances."       Strickland, 466
                    U.S. at 691. "Where counsel and the client in a criminal case clearly
                    understand the evidence and the permutations of proof and outcome,

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                 counsel is not required to unnecessarily exhaust all available public or
                 private resources." Molina v. State, 120 Nev. 185, 192, 87 P.3d 533, 538
                 (2004). Here, defense counsel testified that they questioned the State
                 regarding Rios' potential testimony and her contact information and relied
                 upon the State's assertions that Rios was unlikely to testify as the State
                 did not know at that time the value of Rios' testimony or how to contact
                 her. Arthur also told them that he did not believe that Rios knew any
                 important information. In addition, counsel testified that Arthur was
                 adamant that he acted in self-defense. Given the representations by the
                 State and Arthur, counsel chose not to spend additional time and
                 resources investigating a witness who, given the information known to
                 counsel before the start of trial, did not appear to possess helpful or
                 pertinent information. Tactical decisions made by counsel, such as which
                 witnesses to interview or investigate, "are virtually unchallengeable
                 absent extraordinary circumstances."      Ford v. State, 105 Nev. 850, 853,
                 784 P.2d 951, 953 (1989). Under these circumstances, defense counsel's
                 decision to not spend time and effort on investigating a witness for whom
                 the State did not possess contact information, that the State did not
                 intend to call at trial, and that the defendant did not believe had useful
                 information was an objectively reasonable decision.
                             The district court also erred in concluding that Arthur was
                 prejudiced by the failure to investigate Rios as her testimony regarding
                 Arthur's statement about God telling him to kill the victim would not have
                 supported an insanity defense. 1 "To be legally insane, a defendant must


                      'The parties and the district court also discussed the possibility of a
                 diminished capacity defense based upon mental health issues, but
                                                                   continued on next page . . .

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                be in a delusional state preventing him from knowing or understanding
                the nature of his act or from appreciating the wrongfulness of his act."
                Blake v. State, 121 Nev. 779, 793, 121 P.3d 567, 576 (2005); see also NRS
                174.035(5) (codifying Nevada's standard for legal insanity). Nevada's legal
                insanity standard
                             permits a finding of legal insanity only if at the
                             time of the killing, a delusional state: (1) rendered
                             the defendant incapable of knowing or
                             understanding the nature of his act, i.e., that he
                             was killing a human being, or (2) prevented the
                             defendant from appreciating the wrongfulness of
                             his act, i.e., that the killing was not justified under
                             the law.
                Blake, 121 Nev. at 801-02, 121 P.3d at 581 (Becker, C.J., concurring in
                part and dissenting in part). Arthur's statement to Rios that God sent
                him to kill the victim does not meet either requirement for insanity. It did
                not demonstrate that Arthur was rendered incapable of knowing the
                nature of his act as he specifically stated he was sent to kill a human
                being. It also did not demonstrate that Arthur did not appreciate the
                wrongfulness of his act or that the killing was not justified under the law.
                Arthur's statement best fits under the irresistible impulse test for legal
                insanity, a standard specifically not adopted by Nevada.          See Finger a
                State, 117 Nev. 548, 558, 27 P.3d 66, 73 (2001). Moreover, this court has
                already concluded that a scenario similar to the one presented in this case,
                one where a criminal defendant believed that God wanted him to kill and

                . . . continued

                acknowledged that Nevada does not recognize such a legal defense.          See
                Crawford v. State, 121 Nev. 744, 757, 121 P.3d 582, 590-91 (2005).



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                     acted under that impulse, would not meet Nevada's legal insanity
                     standard. See id. Accordingly, the district court erred in concluding that
                     there is a reasonable probability of a different outcome at trial had counsel
                     investigated Rios.
                                 Second, the State argues that the district court erred in
                     determining that Arthur's trial counsel were ineffective for failing to
                     investigate Arthur's mental health prior to trial. In support of this claim,
                     Arthur produced documents stemming from his pretrial confinement in
                     the Clark County Detention Center that briefly discuss his treatment for
                     mental health issues. The district court concluded that counsel were
                     ineffective for failing to obtain Arthur's jail records, which would have
                     revealed that Arthur had mental health issues, and that such revelation
                     would have prompted counsel to pursue a different defense. At the
                     evidentiary hearing, the parties discussed the potential for an insanity
                     defense based in part on the jail records.
                                 We conclude that the district court erred in concluding that
                     counsel's performances were deficient. At the evidentiary hearing, counsel
                     discussed their pretrial investigation and decisions concerning self-defense
                     in this case. First, the lead counsel testified that he makes a case-by-case
                     consideration of whether to request records from the jail. Counsel stated
                     that his experience is that whenever defense attorneys request records
                     pertaining to a client from the jail, the jail sends a copy of those records to
                     the State and that such records often contain information damaging to the
                     defense. Counsel testified that such concerns would have been why he did
                     not request Arthur's records from the Clark County Detention Center.
                     Second, counsel testified that Arthur was adamant that he killed the



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                 victim in self-defense and counsel pursued investigations aimed at helping
                 that defense.
                             As discussed previously, defense counsel has a duty to make
                 reasonable investigations or make a reasonable decision not to undertake
                 a particular course of investigation. Love, 109 Nev. at 1138, 865 P.2d at
                 323. Here, counsel made a reasonable tactical decision regarding the
                 direction of the pretrial investigation based on his experience and upon
                 the circumstances known to him in this case. Tactical decisions made by
                 counsel, such as the decision not to obtain jail records, "are virtually
                 unchallengeable absent extraordinary circumstances," Ford, 105 Nev. at
                 853, 784 P.2d at 953, and Arthur does not demonstrate extraordinary
                 circumstances here.
                             Counsel also reasonably declined to investigate facts to
                 support an insanity defense. As stated previously, defense counsel
                 testified that Arthur was adamant that the killing was done in self-
                 defense. Counsel testified that they both met with Arthur prior to trial
                 and had no indication from him that he suffered from any delusion during
                 the commission of the killing such that they should have pursued an
                 insanity defense. This is particularly important in light of this court's
                 conclusion that a criminal defendant personally, and not his or her
                 counsel, has the authority to pursue a defense of insanity.    See Johnson v.
                 State, 117 Nev. 153, 163, 17 P.3d 1008, 1015 (2001). Moreover, where
                 there is no indication pretrial that a criminal defendant suffered from
                 psychological disorders that may have impaired his mental state at the
                 time of the crime, counsel is not ineffective for declining to investigate the
                 defendant's mental health. See Riley u. State, 110 Nev. 638, 650-51, 878
                 P.2d 272, 280 (1994); see also Dumas v. State, 111 Nev. 1270, 1272, 903

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                  7.;-`•
                  P.2d 816, 817 (1995) (explaining that the circumstances in that case
                  should have caused counsel to investigate the defendant's mental health,
                  but recognizing that defense counsel may have "cogent reasons for not
                  pursuing the defendant's psychopathy"). Under the circumstances of this
                  case, the pursuit of facts to support Arthur's statements that the killing
                  was done in self-defense was a reasonable tactical decision given the facts
                  known to counsel and Arthur's assertion that he acted in self-defense. See
                  Ford, 105 Nev. at 853, 784 P.2d at 953; see also Strickland, 466 U.S. at
                  691 ("The reasonableness of counsel's actions may be determined or
                  substantially influenced by the defendant's own statements or actions").
                              The district court also erred in concluding that Arthur was
                  prejudiced by trial counsel's failure to investigate Arthur's mental health
                  prior to trial. Arthur had the burden of proving the factual allegations
                  underlying his ineffective-assistance-of-counsel claims by a preponderance
                  of the evidence. See Means v. State, 120 Nev. 1001, 1012 103 P.3d 25, 33
                  (2004). In support of this claim, Arthur provided the previously
                  mentioned jail records that briefly discussed Arthur's diagnoses and
                  medications. Arthur also provided Nevada Department of Corrections
                  inmate request forms where he had requested information regarding his
                  medication and diagnoses. However, Arthur did not present expert
                  testimony regarding his mental health at the evidentiary hearing. The
                  district court did not make specific findings about Arthur's proof regarding
                  mental health difficulties, but stated in its order and at the evidentiary
                  hearing that had counsel obtained the jail records, counsel may have
                  pursued a different defense at trial, such as an insanity defense.
                              Arthur's jail and prison documents fail to demonstrate by a
                  preponderance of the evidence that during the killing he was "in a

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                delusional state preventing him from knowing or understanding the
                nature of his act or from appreciating the wrongfulness of his act." Blake,
                121 Nev. at 793, 121 P.3d at 576. None of the records provided by Arthur
                on post-conviction discuss in any detail his mental difficulties or provide
                any information regarding whether Arthur actually acted in a delusional
                state during the killing. See Miller v. State, 112 Nev. 168, 172, 911 P.2d
                1183, 1185 (1996) (stating "a successful insanity defense must show the
                elements of [legal insanity] existed at the time of the act" (emphasis in
                original)). The general and brief information produced by Arthur simply
                fails to demonstrate a reasonable probability that a jury would have found
                Arthur not guilty by reason of insanity had counsel obtained this
                information. To the extent that the jail records could have prompted
                further investigation into Arthur's mental health, the record is silent as to
                what counsel could have discovered, if anything. Arthur has not
                addressed the type or quality of mental health evidence his counsel could
                have uncovered with more investigation, and therefore, he fails to
                demonstrate a reasonable probability of a different outcome had counsel
                conducted further investigation into his mental health.       See Molina v.
                State, 120 Nev. 185, 192, 87 P.3d 533, 538 (2004). Therefore, the district
                court erred in granting relief on this claim.
                            Third, the State argues that the district court erred in
                determining that Arthur's trial counsel were ineffective for failing to
                investigate the victim's violent background. Evidence presented at the
                evidentiary hearing demonstrated that the victim had been arrested
                approximately 20 years prior to his death for battery, that the defense
                knew of this arrest, but that the defense did not present this evidence
                during the trial because the trial court had informed them in an off-the-

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4%                                                              Wh.
                 record discussion that it would permit the State to introduce Arthur's
                 violent background if they sought admission of this evidence. Evidence
                 presented at the evidentiary hearing also indicated that Arthur had been
                 aware of the victim's arrest prior to the night of the killing. The district
                 court concluded that counsel were ineffective for failing to investigate the
                 victim's violent background and for failing to ensure that the trial court's
                 ruling on this evidence was placed on the record so as to be preserved for
                 direct appeal.
                             We conclude that the district court erred in concluding that
                 counsel's performances were deficient. The record belies Arthur's claim
                 that counsel did not investigate the victim's violent background. At the
                 evidentiary hearing, counsel testified that they investigated the victim's
                 criminal history and the defense knew that the victim had been arrested
                 for battery. Counsel also testified that the trial court's ruling essentially
                 tied their hands. They knew of Arthur's criminal history, which was much
                 more recent and much more significant than the victim's history. Counsel
                 in particular did not want the jury to hear about Arthur's domestic
                 violence towards Arthur's common-law wife, the victim's step-daughter.
                 Accordingly, counsel made a tactical decision not to seek admission of the
                 victim's use of violence in an attempt to shield from the jury Arthur's past
                 violent conduct. Under the circumstances of this case and the given the
                 ruling made by the trial court, these were reasonable tactical decisions.
                 Ford, 105 Nev. at 853, 784 P.2d at 953. Therefore, the district court erred
                 in concluding that counsel were not reasonably diligent with respect to use
                 of evidence pertaining to the victim's violent background.
                             The district court also erred in concluding that Arthur was
                 prejudiced by the failure to investigate the victim's violent background

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                 and for failing to challenge the trial court's ruling with respect to
                 introduction of this evidence. As stated previously, defense counsel knew
                 of the victim's arrest for battery and Arthur does not demonstrate that
                 there were any additional violent incidents involving the victim that could
                 have been discovered. See Molina, 120 Nev. at 192, 87 P.3d at 538. Had
                 counsel sought to introduce evidence of the victim's battery arrest, Arthur
                 does not demonstrate that there was a reasonable probability of a different
                 outcome at trial. The victim's use of violence was remote and not likely to
                 have held much persuasive weight given that the charge did not result in
                 a conviction. In contrast, the evidence demonstrating Arthur's guilt was
                 strong.
                             Evidence produced at trial demonstrated that Arthur was not
                 welcome inside of his estranged wife's home due to his alcoholism and that
                 the victim had initiated those restrictions. Arthur talked to his estranged
                 wife on the night of the murder and she testified that Arthur was angry at
                 the victim due to an earlier phone call between the two. The evidence
                 demonstrated that Arthur went to the victim's house while the rest of the
                 family was out, that the victim suffered multiple and significant stab
                 wounds to his head, back and neck, and that the victim had extensive
                 defensive wounds. The assailant had attempted to clean the scene
                 following the incident and Arthur's blood was discovered throughout the
                 crime scene. Arthur then took the victim's car, left it a short distance from
                 the house, and left the area in his own vehicle. The next day, Arthur met
                 with an acquaintance and told that person that he had been in an
                 altercation at a casino with two African Americans the night before. A few
                 days later, police officers initiated a traffic stop of Arthur, but he led them
                 on a high speed chase of approximately 40 miles with speeds exceeding

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                  100 mph. After his arrest, Arthur was recorded telling his estranged wife
                  that he had had nothing to do with her step-father's death, but asserted
                  that he acted in self-defense at trial
                                In light of the evidence of Arthur's guilt, the victim's 20-year-
                  old battery arrest that did not result in a conviction had little probative
                  value in determining the events of the night in question. Accordingly,
                  Arthur does not demonstrate prejudice stemming from counsel's actions or
                  inactions regarding the victim's battery arrest. Therefore, the district
                  court erred in granting relief on this claim.
                                Finally, the State argues that the district court erred in
                  determining that the cumulative errors of counsel amounted to ineffective
                  assistance of counsel. As discussed previously, we conclude that Arthur
                  did not meet his burden below to demonstrate that his trial counsel's
                  performances were deficient. Therefore, there are no claims of counsel
                  error to consider cumulatively and Arthur was not entitled to relief for
                  this claim.
                                For the reasons set forth in this order, we
                                ORDER the judgment of the district court REVERSED.




                                                                                        J.
                                                       Pickering


                                                                                        J.
                                                         itnez
                                                       Parraguirre


                                                                                        J.
                                                       Saitta
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                cc:   Hon. Abbi Silver, District Judge
                      Attorney General/Carson City
                      Clark County District Attorney
                      Christopher R. Oram
                      Eighth District Court Clerk




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