to so conclude would require some measure of speculation on the limited record on appeal before us. We nevertheless view all the circumstances as raising a reasonable doubt that defendant, by his single answer “yes” to the court’s inquiry, was necessarily expressing a genuine and unambiguous desire that a penalty phase argument be made to spare his life.
Notwithstanding defendant’s unwillingness to cooperate in his own penalty phase defense, and his agreement with Maple that mitigating evidence of his good conduct while in custody should not be presented for tactical reasons, it might still be concluded that counsel, at the very least, could have argued lingering doubt to the jury, consistent with defendant’s position at the guilt phase that he had nothing to do with Koll’s murder. But then again, Miller had taken that tack at the second penalty phase of defendant’s first trial, and he knew that, as a matter of trial tactics, it had proved unsuccessful on that occasion. Experience therefore may have led Miller to conclude that, once this jury unanimously found that the guilt phase evidence established defendant as Koll’s murderer beyond a reasonable doubt, it was better to simply submit the matter of lingering doubt at the penalty phase on an appropriate lingering doubt instruction, without arguing lingering doubt to the jury and thereby drawing further attention to the guilt phase evidence.
As the high court explained in Cronic, “Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. [Citation.]” (Cronic, supra, 466 U.S. at p. 656, fn. 19.) We recognize that Cronic was not a capital murder