Here, we hold only that defendant’s assertion that Miller and Maple rendered ineffective assistance of counsel in waiving penalty phase arguments must properly await resolution on a fully developed factual record in a habeas corpus proceeding appropriately instituted in conjunction with this appeal. The high court’s decision in Cone fully supports that disposition of defendant’s claim on appeal.
2. Trial court error
We now turn to defendant’s closely related claim that the trial court erred in failing to protect his Sixth Amendment right to counsel by not following through on the court’s initially stated intent to appoint new counsel for the purpose of making a penalty phase argument. Our dissenting colleagues agree with defendant’s contention that once defendant answered “yes” to the court’s initial inquiry as to whether he wanted substitute counsel appointed for the sole purpose of making an argument to the jury, the court had no choice but to appoint new counsel for that single purpose. On this state of the record we cannot agree.
It is true that the trial court expressed astonishment, as well might be expected, when Maple announced on behalf of himself and Miller that the defense would rest without presenting any argument to the jury. It is also true, however, that because Miller and Maple obviously believed that confidentiality or attorney-client privilege precluded them from informing the court of their reasons for electing their chosen course of action at the penalty trial, the court was left largely in the dark regarding counsel’s reasons for failing to call any witnesses or present any mitigating evidence. Although the court questioned defendant at the conclusion of the prosecution’s case in aggravation of penalty and did learn that defendant had consulted with counsel, had been informed of his right to present mitigating evidence, and was forgoing exercise of that right, the court apparently