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Penalty Phase Issues

XXIII.  Failure to Substitute New Counsel for the Purpose of Penalty Phase Argument

Defendant contends the judgment of death must be reversed because the court accepted defense counsel’s waiver of penalty phase argument to the jury on his behalf.  Specifically, defendant argues that the court was duty-bound to appoint new counsel for that single purpose once defendant responded affirmatively to the court’s inquiry whether he would accept the proposed substitution of counsel.22  For reasons next explained, this claim of trial court error must be rejected on appeal.  Moreover, resolution of the closely related question whether counsel’s failure to present any penalty phase arguments constituted ineffective assistance of counsel must await formal presentation of the claim in a petition for writ of habeas corpus predicated on an adequately developed factual record.

A.  Background

After conclusion of the People’s case in aggravation of penalty, the defense rested without introducing any evidence.  Questioned outside of the jury’s presence, counsel indicated that although their investigation had produced some evidence regarding defendant’s character, background, and mental and physical condition, they did not wish to present any of it.  Defendant personally affirmed that counsel had consulted with him and had informed him of the right to put on mitigating evidence, and that he wished to forgo the exercise of that right.

The court told counsel for both parties that each side would have one opportunity for argument, the prosecution first and the defense last, but that both attorneys for each party could argue if they wished.  Prosecutors Holliman and Lutes then argued for the People, emphasizing the aggravating circumstances

22 The claim is contained in a supplemental brief which defendant was permitted to file subsequent to the filing of his opening brief.

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