State v. Arthur (George) ( 2014 )

 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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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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