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“The Court:  Now, Mr. Snow, the law requires that the attorneys control the proceedings as to any criminal case, and that would include the arguments or no arguments.  They have elected to waive arguments and that is their right.  That right affects you.  So what I’m going to do is proceed and accept the waiver of arguments and simply instruct the jury.”

Defendant made no response on the record.  The prosecutors were then readmitted to the courtroom.  After further discussion of proposed instructions, the court began instructing the jury.  The penalty phase instructions included the following admonition:  “The jury is instructed not to draw any adverse inference from the defendant’s failure to testify at the penalty trial or offer evidence in mitigation or arguments by his attorney.  The jury must decide for itself the appropriate penalty based on the factors previously given by the court.”  At the request of the defense, the court also instructed the jury on lingering doubt and the burden of proving identity through eyewitness testimony.

Also relevant to our inquiry regarding this claim are certain confidential “Declaration[s] Re Preparation For Penalty Trial” filed by Miller and Maple in the superior court’s master calendar department on the date the penalty phase was commenced (July 17, 1990), as well as the declaration of Joel A. Sickler, a court-appointed defense investigator, which was appended to Maple’s July 17 declaration, and a second declaration by Maple filed on July 18, the second day of the penalty phase and the date on which the events giving rise to this claim

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