agree, concurring in part and dissenting in part:
I concur with the majority opinion in affirming the decision of the district court to uphold Haberstroh’s conviction, in admonishing Haberstroh’s attorneys for filing an appendix containing irrelevant material, and in disapproving stipulations regarding procedural default rules. I dissent from the majority’s affirmance of the district court’s decision to vacate the death sentence and to grant a new penalty hearing. Although the jury instruction on depravity of mind was inadequate and the aggravating circumstance is invalid, four valid aggravators remain, and there is no mitigating evidence. I therefore conclude that the error was harmless and that this court should uphold the death sentence.
The majority is correct that de novo review is appropriate because there are no relevant factual findings by the district court. And despite the district court’s concern about the prosecutor’s final argument, independent review of the record shows that the prosecutor did not emphasize depravity of mind more than any of the other four aggravators. Moreover, the prosecutor’s comments served a dual purpose. The prosecutor was not simply arguing that the State had proven “depravity”; he was also arguing why the aggravating circumstances were not outweighed by any mitigating circumstances and that death was the appropriate penalty. At various points in his argument, the prosecutor used terms found in the instruction on depravity of mind, such as “vile,” “wanton,” “perverted,” “indifferent,” and “evil.” The use of this language, for these purposes, was not per se improper. Furthermore, the prosecutor did not place inordinate stress on depravity of mind in comparison to the other aggravating circumstances or other considera*191tions. In his opening final argument, the prosecutor discussed a number of points: the jury’s responsibility for deciding the sentence in a capital case; the framework for making that decision and the five alleged aggravators generally; the three felony aggravators specifically; the character of Haberstroh and the circumstances of the crime; his prior crimes and use of a shank; his recent possession of a metal object which could be fashioned into a shank; and the sentencing factors of rehabilitation, deterrence, protection of society, and punishment. The prosecutor referred to the depraved nature of the murder, but did not suggest that jurors should consider that factor to be of primary importance. In his closing argument, the prosecutor again addressed a number of points: the general framework for deciding on a sentence; the defense argument that there was still a chance that Haberstroh could ultimately be proved innocent; the credibility of the State’s witnesses and the strength of the State’s case in the guilt phase; the victim; the lack of mitigating circumstances and the existence of all five aggravating circumstances; and the appropriateness of death as the penalty. The record does not show that the prosecutor’s argument sought or worked to convince the jurors to base their sentence particularly on depravity of mind.
Four valid aggravators remain in this case. The murder was committed: during the commission of robbery, during the commission of first-degree kidnapping, during the commission of sexual assault, and by a person who was previously convicted of a felony involving the use or threat of violence. In reweighing the valid aggravating circumstances, we have no mitigating circumstances to counter them. The balance overwhelmingly favors death, as this court’s decisions in similar cases indicate.1Haberstroh chose not to present mitigating evidence, and his belated offer of such evidence is of no consequence to the decision before this court.2 This murder was unprovoked and extremely callous and brutal. The failure to give a limiting instruction on depravity of mind was *192harmless error: I have no reasonable doubt that the jury would have returned a death sentence even without the invalid aggravator. Haberstroh has failed to establish prejudice under NRS 34.810, and this court should reverse the district court’s order on this point.
See Witter v. State, 112 Nev. 908, 929-30, 921 P.2d 886, 900-01 (1996) (concluding that four remaining aggravators clearly outweighed mitigating evidence), receded from on other grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000); Leslie v. State, 114 Nev 8, 22-23, 952 P.2d 966, 976 (1998) (concluding that three remaining aggravating circumstances far outweighed single mitigating circumstance), overruled on other grounds by Leslie v. Warden, 118 Nev. 773, 59 P.3d 440 (2002); Canape v. State, 109 Nev. 864, 882, 859 P.2d 1023, 1035 (1993) (concluding that invalid aggravator was harmless error where three aggravators remained and there were no mitigating circumstances).
Cf. Kirksey v. State, 112 Nev. 980, 995, 923 P.2d 1102, 1112 (1996) (“[A] defendant may waive the right to present mitigating evidence and defense counsel’s acquiescence to such a waiver does not constitute ineffective assistance of counsel.”).