People v. Smith
Case Date: 12/31/1969
Court: Supreme Court
Docket No: 77695
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request a rehearing. Also, opinions are subject to modification, correction or withdrawal at anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the following slip opinion is being made available prior to the Court's final action in this matter, it cannot be considered the final decision of the Court. The official copy of the following opinion will be published by the Supreme Court's Reporter of Decisions in the Official Reports advance sheets following final action by the Court. Docket No. 77695--Agenda 1--November 1996. THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID SMITH, Appellant. Opinion filed March 20, 1997. JUSTICE HARRISON delivered the opinion of the court: Defendant, David Smith, was convicted following a jury trial in the Cook County circuit court of first degree murder, aggravated criminal sexual assault and home invasion arising from the March 17, 1987, stabbing death of Lisa Ferguson. At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and found that there were no factors in mitigation sufficient to preclude imposition of the death sentence. Accordingly, the trial court sentenced defendant to death for the murder conviction and to concurrent terms of 30 years each for the aggravated criminal sexual assault and home invasion convictions. On review, this court affirmed defendant's convictions, but found that the trial court's refusal to "life-qualify" the jury amounted to a violation of defendant's due process rights requiring vacation of the death sentence and a remand of the cause for a new sentencing hearing. People v. Smith, 152 Ill. 2d 229 (1992). The evidence presented at defendant's trial and original sentencing hearing is set forth in that opinion in detail. Therefore, only the facts necessary for understanding and adjudicating the issues in the present appeal will be discussed. On remand, the trial court, after a new sentencing hearing, reimposed the death penalty for defendant's murder conviction. The sentence of death has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, 4(b); 134 Ill. 2d Rs. 603, 609(a). Defendant argues on appeal that numerous errors committed during both the eligibility and penalty phases of his capital resentencing deprived him of the right to a fair sentencing hearing. We first address those he cites that are associated with the eligibility phase. Defendant initially contends that his waiver of a jury for purposes of sentencing was not knowing, intelligent or voluntary because he was not specifically advised that he was entitled to have a jury determine his eligibility for the death penalty. The record shows that, prior to the sentencing hearing, the trial court admonished defendant as follows: "THE COURT: *** [Defendant], you understand that you have a right to have a jury make a determination as to the sentencing in this case. Do you understand that? [DEFENDANT]: Yes, sir. Q. And you may, if you so choose, give that *** right up and have a judge, in this case that would be myself [sic], make that determination. Do you understand that? A. Yes, sir. Q. In other words, that would be the difference between having a jury of twelve people hearing the facts of this case, hearing these matters, and then deciding all of them, twelve to zero, whether--with regards [sic] to the death penalty, whether that sentence should be imposed. Do you understand that? A. Yes, sir, I do. Q. That right cannot be taken away from you. You must knowingly waive that right. Do you understand that? A. Yes, sir. Q. Do you wish to have a jury make that determination, or do you wish to have a judge decide? A. I wish at this time to have the judge decide." Defendant also executed a written waiver of jury sentencing. Defendant argues that despite these oral and written precautions, his waiver of his right to a jury was not knowing, intelligent or voluntary because the trial court did not admonish him as this court recommended in People v. Albanese, 104 Ill. 2d 504 (1984). We disagree. It is true that the Albanese court stated: "[W]e suggest to trial judges that it would be preferable if, before accepting a jury waiver at a capital sentencing hearing, they would inform defendants that a sentencing jury would have to unanimously decide that the State has proved beyond a reasonable doubt the existence of a statutory aggravating factor and that there are not sufficient mitigating factors established to preclude the death sentence." Albanese, 104 Ill. 2d at 536. However, it is sufficient for a valid jury waiver that the trial court explain to the defendant that he is waiving his right to have a jury consider the capital sentencing issues and that the sentencing decision would, therefore, be made by the court alone. People v. Haynes, 174 Ill. 2d 204, 252 (1996); People v. Ramey, 152 Ill. 2d 41, 59 (1992). Although it is "preferable" for the court to admonish a defendant regarding the specific rights he is waiving at each stage of capital sentencing, this court ultimately held in Albanese that the sixth amendment requires no precise formula for determining whether a waiver has been knowingly and intelligently made, and that each case will turn on its own facts and circumstances. Albanese, 104 Ill. 2d at 535-36; see also People v. Strickland, 154 Ill. 2d 489, 517 (1992) (there is no fixed formula that must be recited by the court prior to receiving a defendant's valid jury waiver at a capital sentencing hearing). Here, the record shows the trial court admonished defendant that he had a right to have a jury make the sentencing determination, that, after hearing "these matters," the jurors would have to decide unanimously whether the death sentence should be imposed, and that if defendant chose to give up that right, a judge would make the sentencing determination. Defendant stated that he understood the consequences of his waiver. Additionally, we find it significant that defendant had originally been convicted of murder and sentenced to death by a jury, and thus was familiar with the jury's function in a capital sentencing hearing. See Albanese, 104 Ill. 2d at 536. Therefore, we are satisfied that the facts and circumstances of this case demonstrate that defendant's waiver was knowing, intelligent and voluntary. Defendant next argues that he was denied effective assistance of counsel at his sentencing hearing because defense counsel misunderstood the eligibility issue and accordingly did not contest defendant's eligibility for the death penalty. In a related argument, defendant contends that the trial court improperly found him eligible for the death penalty where the State did not prove and the court did not find the element of intent as required under section 9--1(b)(6) of the Criminal Code of 1961 (720 ILCS 5/9-- 1(b)(6) (West 1994)). At resentencing, the State asked the court to take judicial notice that the jury had convicted defendant of murder, aggravated criminal sexual assault and home invasion, and that, given his birth date of June 26, 1963, defendant was over the age of 18 at the time of the offenses. The State requested that "[b]ased on those two findings," defendant be found eligible for the death penalty. The following colloquy then occurred: "THE COURT: Do you have any objection to me taking judicial notice of those facts? [DEFENSE COUNSEL]: Judge, my understanding of the opinion is that the sentencing--or the eligibility is not an issue. It's merely the sentencing." The court then took judicial notice of those facts and found, "pursuant to the provisions of the statutes, [defendant] is eligible for the death penalty." We agree with defendant that his counsel evidently believed, incorrectly, that the resentencing ordered by this court based upon Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), was limited to the second phase of the proceeding. In People v. Johnson, 159 Ill. 2d 97, 134-35 (1994), we held that there was no distinction between the two stages of sentencing for purposes of the Morgan doctrine, because "the jury involved in any aspect of the death sentencing procedure must be fair and impartial." Thus, on remand, defendant clearly had a right to both stages of the hearing. However, we find that under the circumstances present herein, counsel's mistake as to the law did not deny defendant a fair sentencing hearing, because the trial court properly determined defendant's eligibility and the outcome of the hearing would not have differed had defense counsel contested the point. "For the purposes of imposing the death sentence, it is incumbent upon the sentencer to determine whether an aggravating factor exists." People v. Johnson, 149 Ill. 2d 118, 156 (1992). Section 9--1(b)(6) sets forth the elements of the statutory aggravating factor of murder in the course of another felony, and includes the requirement that the defendant acted with the intent to kill or with the knowledge that his acts created a strong probability of death or great bodily harm. 720 ILCS 5/9--1(b)(6)(b) (West 1994); Johnson, 149 Ill. 2d at 156. Defendant argues, as did the defendant in Johnson, 149 Ill. 2d at 156, that the trial court failed to make any finding that he, in performing the acts which caused the victim's death, acted with the necessary intent. Specifically, defendant argues that proof that he was convicted of murder, aggravated criminal sexual assault and home invasion and that he was over 18 at the time of the murder is insufficient to establish his eligibility for the death penalty. However, defendant was indicted and proceeded to trial on, inter alia, two counts of first degree murder alleging the mental states of intent or knowledge (Ill. Rev. Stat. 1987, pars. 9--1(a)(1), (a)(2)), and the jury returned a general verdict of guilty on the murder charge. See People v. Thompkins, 121 Ill. 2d 401 (1988) (where an indictment contains several counts arising out of a single transaction and a general verdict is returned the effect is that the defendant is guilty as charged in each count). In Johnson, under strikingly similar facts, we reasoned: "The jury was charged with instructions which included intentional murder, and a general verdict was returned. That raised the presumption that the jury found the defendant guilty of intentional murder. During the sentencing hearing, the trial judge took judicial notice of the jury's verdict. Since the verdict encompassed the necessary finding of intent, there was no omission on the part of the trial judge, and defendant's argument must fail." Johnson, 149 Ill. 2d at 157. We believe Johnson to be controlling here, and hold that the trial court made the requisite finding of intent under the statute, where the court took judicial notice of the jury's verdict. Defendant cites People v. Ramey, 151 Ill. 2d 498, 545-50 (1992), wherein this court found that a jury's general verdict would not support imposition of the death penalty because use of the presumption that the jury found the defendant intentionally murdered the victim would deny the defendant his right to have his eligibility for the death penalty decided by a trial court or jury. Defendant's reliance on Ramey is misplaced. In Ramey, the instructions given the jury at the first stage of sentencing failed to specify that there must be a finding that the defendant acted with the intent required under section 9--1(b)(6)(b). Thus, this court declined to find that the defendant's eligibility had been established because, unlike the case before us, a statutory finding of intent was not made at sentencing. Ramey, 151 Ill. 2d at 545-46. Having established that the trial court properly determined defendant's eligibility, we examine whether defense counsel's failure to contest that finding constituted ineffective assistance. A defendant alleging a violation of his sixth amendment right to effective assistance of counsel must generally meet the two-pronged test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and recognized by this court in People v. Albanese, 104 Ill. 2d 504 (1984). Under Strickland, the defendant must show that: (1) his counsel's performance fell below the objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Albanese, 104 Ill. 2d at 527. As an initial matter, defendant contends that because his counsel wholly failed to subject the prosecution's case to meaningful adversarial testing at the eligibility stage of sentencing, ineffective assistance of counsel can be presumed without application of the Strickland test. See United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). Defendant argues that counsel's concession of his eligibility for the death penalty is equivalent to the concession of a defendant's guilt that this court held constituted ineffective assistance of counsel in People v. Hattery, 109 Ill. 2d 449 (1985). However, the facts in the instant case are clearly distinguishable from those in Hattery. The concession by counsel in this case occurred at the sentencing hearing, not during the opening arguments at trial. "Thus, unlike Hattery, the question of defendant's guilt or innocence in this case had previously been `presented to the jury as an adversarial issue.' " People v. Holman, 132 Ill. 2d 128, 160 (1989), quoting Hattery, 109 Ill. 2d at 464. Rather, here, as in Holman, counsel merely conceded the undisputed fact of defendant's murder and felony convictions. We therefore reject defendant's claim that his counsel's concession of eligibility constituted ineffective assistance under Hattery. See Holman, 132 Ill. 2d at 160-61. We similarly find that counsel's mistaken belief that eligibility was "not an issue" did not constitute ineffective assistance under Strickland. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 80 L. Ed. 2d at 696, 104 S. Ct. at 2066. Defendant contends that his counsel was ineffective because, at the eligibility stage, he failed to argue that defendant did not have a culpable mental state, yet later presented evidence that defendant was under the influence of alcohol and narcotics and may have experienced a transient psychotic episode at the time of the murder. In People v. Shatner, 174 Ill. 2d 133 (1996), we recently rejected this argument raised by a defendant whose counsel, under similar circumstances, declined to make an opening statement in the eligibility phase, presented no evidence, and made no argument against a finding of eligibility. There, the sentencing court, after taking judicial notice of its presence when the jury returned a general verdict of guilty to the charges of first degree murder, armed robbery and arson, ruled that the defendant was eligible for the death penalty under section 9-- 1(b)(6). We held that defense counsel's actions were not ineffective, because the defendant could not show, under the second prong of Strickland, that there was a reasonable likelihood that, but for counsel's inaction, the result of the eligibility proceeding would have been different. Shatner, 174 Ill. 2d at 150. "Johnson undermines defendant's claim that, had his attorney challenged his eligibility, the sentencing judge would have found that he lacked the requisite intent under the aggravating felony murder factor and was not eligible for the death penalty. *** Since the jury verdicts encompassed the necessary finding of intent, and since the trial judge took judicial notice of these verdicts, his conclusion that defendant acted with the requisite intent to be eligible for the death penalty cannot be assailed." Shatner, 174 Ill. 2d at 150-51. Moreover, we note that the trial court herein heard the evidence defendant presented at trial and sentencing concerning his alcohol and narcotics ingestion and "psychotic episode" on the night of the murder, and rejected the notion that defendant's mental condition had any effect on his criminal conduct. Prior to handing down defendant's sentence, the court stated: "There is as we referred to mitigation offered. The question is, is it sufficient. Mr. Smith, you lost control. You lost control not because in our mind of any mental condition, not because of any disease. You just went out of control." Thus, as we stated in Shatner: "From these comments, it is apparent that defendant's contention that his eligibility hearing might have been different had his counsel contested eligibility is speculative at best. Defendant thus cannot satisfy the prejudice prong of the Strickland test, and his claim of ineffective assistance of counsel at the eligibility phase must be rejected." Shatner, 174 Ill. 2d at 151. We next consider defendant's assertions of error with regard to the second phase of his capital sentencing hearing. Defendant first argues that he is entitled to a new sentencing hearing because the record does not reflect that he waived his right to testify. The State responds that defendant has waived appellate review of this issue and, alternatively, that defendant's contention is without merit. We agree with both the State's arguments. Section 9--1(e) of the Criminal Code of 1961 allows the defendant to testify at his capital sentencing hearing. 720 ILCS 5/9--1(e) (West 1994); People v. Gaines, 88 Ill. 2d 342, 376 (1981). However, in the case at bar, the record shows that at no time during the hearing did defendant indicate a desire to testify in his own behalf. Nor did defendant raise this matter in his post- sentencing motion. Thus, defendant has waived this issue for purposes of appellate review. People v. Enoch, 122 Ill. 2d 176 (1988). Notwithstanding defendant's waiver, we choose to address the merits of this issue. See People v. Shelton, 252 Ill. App. 3d 193, 200 (1993); People v. Raso, 234 Ill. App. 3d 1099, 1100-01 (1992). Defendant urges that this court adopt the holding of a small minority of jurisdictions which have required a defendant's waiver of the right to testify to be on the record. See Tachibana v. State, 79 Haw. 226, 900 P.2d 1293 (1995); Annotation, Necessity That Waiver of Accused's Right to Testify in Own Behalf Be on the Record, 90 A.L.R.4th 586 (1991). Illinois courts have consistently found, however, that when a defendant contends on appeal that he was precluded from testifying at trial, his conviction cannot be reversed on the basis that he was prevented from exercising that right unless he contemporaneously asserted his right to testify by informing the trial court that he wished to do so. See People v. Thompkins, 161 Ill. 2d 148, 177-78 (1994); People v. Brown, 54 Ill. 2d 21, 24 (1973); Shelton, 252 Ill. App. 3d at 201; Raso, 234 Ill. App. 3d at 1100; People v. Knox, 58 Ill. App. 3d 761, 767-68 (1978). Indeed, a vast majority of the states considering this question have held that a defendant's waiver of his right to testify is presumed if, as in the present case, he fails to testify or notify the court of his desire to do so. See Shelton, 252 Ill. App. 3d at 201, citing United States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989), vacated on other grounds, 928 F.2d 1470 (9th Cir. 1991). Additionally, a majority of jurisdictions, and our own appellate court, have found that a trial court has no duty to advise a defendant, represented by counsel, of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred. Shelton, 252 Ill. App. 3d at 201; Raso, 234 Ill. App. 3d at 1102; see also Martinez, 883 F.2d at 760. Although such procedures are required to establish a valid jury waiver (725 ILCS 5/103--6 (West 1994)) or a voluntary guilty plea (725 ILCS 5/113--4(c) (West 1994); 134 Ill. 2d Rs. 402, 605), there is no need for a comparable requirement that the trial court set of record defendant's decision on this matter. As the Martinez court stated: "At least seven reasons have been given for this conclusion: First, the right to testify is seen as the kind of right that must be asserted in order to be recognized. [Citation.] Second, it is important that the decision to testify be made at the time of trial and that the failure to testify not be raised as an afterthought after conviction. [Citation.] Third, by advising the defendant of his right to testify, the court could influence the defendant to waive his right not to testify, `thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.' [Citation.] Fourth, a court so advising a defendant might improperly intrude on the attorney-client relation, protected by the Sixth Amendment. [Citation.] Fifth, there is danger that the judge's admonition would introduce error into the trial. [Citation.] Sixth, it is hard to say when the judge should appropriately advise the defendant--the judge does not know the defendant is not testifying until the defense rests, not an opportune moment to conduct a colloquy. [Citation.] Seventh, the judge should not interfere with defense strategy. [Citation.]" (Emphasis in original.) Martinez, 883 F.2d at 760. For all these reasons, we join the majority of states in concluding that the trial court is not required to advise a defendant of his right to testify, to inquire whether he knowingly and intelligently waived that right, or to set of record defendant's decision on this matter. Here, defendant does not assert that his counsel was ineffective for advising him to refrain from testifying at sentencing, nor does he indicate of what his testimony would have consisted. We recognize that the decision whether to take the witness stand and testify in one's own behalf ultimately belongs to the defendant (Thompkins, 161 Ill. 2d at 177; Brown, 54 Ill. 2d at 23), but it should be made with the advice of counsel (Brown, 54 Ill. 2d at 23-24; Raso, 234 Ill. App. 3d at 1101-02). Thus, in the instant case, defendant's decision not to testify must be viewed as strategy with which he agreed. See Thompkins, 161 Ill. 2d at 177; Raso, 234 Ill. App. 3d at 1101. Accordingly, we conclude that defendant waived his right to testify because he did not contemporaneously assert his right to do so and that the trial court did not err by failing to advise defendant of his right to testify at sentencing or by failing to require that defendant's waiver of the right be incorporated in the record. See Shelton, 252 Ill. App. 3d at 202; Raso, 234 Ill. App. 3d at 1101-02. Defendant next contends that the trial court erred in relying on its notes from the original sentencing hearing without informing defense counsel. Richard Rizzo, a Cook County sheriff's office employee assigned to the Cook County jail, testified for the State in aggravation at both defendant's original sentencing hearing in 1989 and at the 1994 resentencing hearing which is the subject of this appeal. In 1994, Rizzo testified that he discovered a shank in a cell occupied by defendant and another inmate, and that defendant admitted it was his. During closing arguments, defense counsel stated that defendant denied ownership of the shank. In rebuttal, the State argued that defendant had admitted the shank was his and defense counsel objected, stating there was no such evidence. The trial court commented that it did not recall whether defendant admitted or denied ownership of the shank. The court then stated: "I just happen to have my notes which indicate as long as this has been brought out. It talks about him--and I believe his name was officer Rizzo *** recovered a shank from the defendant's cell, questioned both inmates. I guess [defendant] was there with another man named *** Rollins--never saw the defendant attack anybody or use the shank. He indicated the defendant denied that it was his shank. And then it goes on. Redirect. He was found guilty of an offense and was sanctions [sic] for that." Defendant argues that the notes referred to by the trial court do not reflect Rizzo's testimony at the 1994 hearing, but his "more extensive and more aggravating" testimony at the 1989 hearing. We agree that the record on appeal, which includes a transcript of proceedings at both sentencing hearings (134 Ill. 2d R. 608), supports defendant's claim. In 1994, Rizzo did not testify that defendant denied it was his shank, was found guilty of an offense, or was sanctioned for it. Nor was Rizzo subject to redirect at the 1994 hearing. Therefore, where the trial court's notes reflect proceedings which occurred in 1989 but not in 1994, we will presume for purposes of this appeal that the trial court was referring to its notes from the original sentencing hearing. While the State argues that defendant has waived this issue on appeal, we find that his failure to object to the court's use of its notes is excused where defense counsel did not know at the time that the court was referring to notes from the original sentencing hearing. Although defendant also failed to include the court's reference to the 1989 notes as error in his post-sentencing motion, application of the waiver rule is less rigid where the basis for the objection is the trial court's conduct. People v. Nevitt, 135 Ill. 2d 423, 455 (1990). We choose, therefore, to examine this issue on the merits. "The law is well settled that, exclusive of certain matters of which the court may take judicial notice, the deliberations of the trial judge are limited to the exhibits offered and admitted in evidence and the record made before him in open court. Any private investigation by the court *** constitutes a denial to the defendant of the constitutional guarantee of due process of law." People v. Rivers, 410 Ill. 410, 416 (1951). Further, if an accused is not informed at trial of the facts of which the court is taking judicial notice, he does not know upon what evidence he is being convicted, and he is deprived of any opportunity to challenge the deductions drawn from such notice or to dispute the truth of the facts allegedly relied upon. Garner v. Louisiana, 368 U.S. 157, 173, 7 L. Ed. 2d 207, 219, 82 S. Ct. 248, 256-57 (1961). Thus, in the case at bar, the trial court erred in relying on notes from the previous sentencing hearing without informing the defense. The court's brief reference to "my notes" was insufficient to inform the defense that the court was taking judicial notice of testimony presented at a prior proceeding, and thus counsel had no opportunity to challenge any deductions which might be drawn from such testimony or to dispute its truth. However, we do not believe this error deprived defendant of due process for several reasons. First, defendant was not prejudiced by the court's reliance on Rizzo's original testimony that defendant had denied ownership of the shank, because the court's notes mirrored what defense counsel maintained during closing argument. Defense counsel argued that the shank was never in defendant's actual possession and that he denied that it was his. The court, after referring to its notes, concurred with defense counsel. Additionally, our review of the record reveals that the trial court's isolated reference to its notes was inconsequential and had no effect on the sentence it imposed on defendant. Thus, where defendant has failed to demonstrate that he would not have received the death sentence absent the court's reliance on its notes, we consider the court's error to be constitutionally insignificant. See People v. Byron, 164 Ill. 2d 279, 304 (1995) (trial court's reliance on allegedly incorrect statements in presentence report concerning capital defendant's drug use was constitutionally insignificant where defendant denied accuracy of report and court's comments on matter were isolated). Defendant next contends that the trial court erred in considering that the jury in the original proceedings had sentenced defendant to death. During closing argument at defendant's resentencing hearing, the State urged the court to consider that essentially the same evidence had been presented to the jury in 1989 and that the jury had returned a sentence of death. A defense objection was overruled. In his post-sentencing motion, defendant alleged that the State erred in referring to the jury's finding in the first sentencing hearing and in arguing that "the same essential evidence was balanced by 12 people." At the hearing on defendant's motion, defense counsel responded as follows to the State's position that the references to the jury's finding were "proper": "[T]he State is arguing that somehow the jury's determination has a legitimate place in this Court's determination. That's wrong, Judge. That jury determination was thrown out by the Supreme Court. It has no validity in any aspect in this courtroom." We agree. This court vacated the sentence of death originally imposed on defendant because the trial court's refusal to "reverse- Witherspoon" or "life-qualify" the jury, over defendant's objection, amounted to a due process violation. Smith, 152 Ill. 2d at 274. "It is elemental that the vacatur of a sentence renders the sentence null and void and of no legal effect." People v. Brooks, 158 Ill. 2d 260, 274 (1994). Further, as the United States Supreme Court has stated: "Although we have acknowledged that `there can be "no perfect procedure for deciding in which cases governmental authority should be used to impose death," ' we have also made it clear that such decisions cannot be predicated on mere `caprice' or on `factors that are constitutionally impermissible or totally irrelevant to the sentencing process.' [Citation.]" Johnson v. Mississippi, 486 U.S. 578, 584-85, 100 L. Ed. 2d 575, 584, 108 S. Ct. 1981, 1986 (1988). Here, because the jury's sentence had been vacated and was "of no legal effect," it was an irrelevant factor in the resentencing process. Thus, the State's argument urging the trial court to consider the prior death sentence was improper and the court's failure to sustain defendant's objection to that argument was error. However, we do not agree with defendant that a new sentencing hearing is necessary, where it is apparent from the record that the trial court did not rely on the improper argument in determining to impose the death penalty. "The rule that this court will `not lightly overturn the findings of the trial court, particularly when they are amply supported by the record,' applies to findings made during the aggravation and mitigation phase of the death penalty hearing. [Citations.]" People v. Christiansen, 116 Ill. 2d 96, 122-23 (1987). In the case at bar, the record clearly indicates that the trial court relied on only proper evidence in sentencing defendant. In pronouncing sentence, the court noted that it had reviewed its notes, the exhibits which had been offered and admitted, the transcripts from the prior proceedings and the doctors' reports. The court then stated that it had also considered the testimony of the witnesses presented in aggravation and mitigation, the offenses defendant had been found guilty of committing, and its own finding that defendant was eligible for the death penalty. The court further stated that it had considered the facts of the case, concluding: "In our view--and we have now seen a fair number of cases, this is in our mind *** an exceptionally brutal case." The court then noted its consideration of defendant's post-arrest behavior and the evidence presented in mitigation and held: "Considering the facts of the case, your conduct subsequent to the arrest and also your conduct after conviction, we feel that the sentence of death is appropriate; and we sentence you thereto." It is well established that where a sentencing hearing is conducted before the trial court instead of a jury, the court is presumed to consider only competent and relevant evidence in determining sentence. People v. Ashford, 168 Ill. 2d 494, 508 (1995). This rule applies to arguments and remarks of counsel. People v. Grodkiewicz, 16 Ill. 2d 192, 199-200 (1959). Unless it affirmatively appears that the court was misled or improperly influenced by such remarks and that they produced a judgment and sentence contrary to the law and the evidence, this court will not reverse. Grodkiewicz, 16 Ill. 2d at 200. At no point did the trial court herein refer to the sentence imposed by the jury or, in any way, indicate that it had influenced its sentencing decision. As we have noted, the express findings of the trial court contained in the record show that the court considered only the proper statutory factors in aggravation and mitigation. Thus, we find that defendant has failed to support his allegation that the trial court improperly considered the jury's finding at the original proceeding in sentencing defendant. Defendant next argues that the trial court erred in allowing occurrence witness Sirena Moya to testify as a witness in aggravation. Defendant contends that Sirena's "testimony and her very appearance on the stand were inappropriate and overly prejudicial" and denied him a fair and reliable death penalty hearing. The State maintains that Sirena's presence at the scene of the crime makes her testimony relevant and reliable, "especially where she recognized defendant's voice from previous encounters." At sentencing, the State called 11-year-old Sirena as a witness and defendant objected, arguing her testimony was not relevant, reliable or appropriate. The trial court overruled the objection as to relevance, and after some qualifying questions, overruled the objection as to competency. Sirena then testified that on March 17, 1987, she was four years old. About 5 p.m. on that date, her parents went to a bar and left her at home with her cousin, Lisa Ferguson. The two were watching a movie and eating popcorn in the living room when there was a knock at the kitchen door. Lisa got up and asked who it was and a voice said it was Dave. Sirena recognized the voice as a friend of her father's, David Smith, and identified defendant as that person at the sentencing hearing. Sirena further testified that Lisa told defendant that she "couldn't let him in" the apartment, and then Lisa came back and watched the movie again. Approximately an hour later, there was another knock at the door. Lisa asked who it was and a man's voice said it was Lisa's brother Max. Sirena testified that she was walking to her bedroom as Lisa opened the door. When Sirena saw defendant at the door, alone, she "ran underneath [her] bed." Sirena next heard Lisa screaming, then heard someone say "shut up." Sirena testified that besides Lisa's screams coming from the kitchen, she heard the silverware drawer shake, and then everything went silent. About five minutes later, Sirena, still under her bed, heard water running in the bathroom. A "police lady" then came into her room, put a blanket over her head and took her to the next door neighbor's home. Sirena testified that when she saw her mother, she told her, "mommy, mommy, Lisa died." Later that night, Sirena went to the police station and picked defendant out of a lineup. "Wide latitude is granted to the parties in introducing evidence in aggravation and mitigation at a capital sentencing hearing. The testimony presented need not satisfy the more restrictive rules of evidence that govern the guilt-innocence phase." People v. Tenner, 157 Ill. 2d 341, 380 (1993); 720 ILCS 5/9--1(e) (West 1994). Rather, the only requirement is that the evidence be relevant and reliable. People v. Fair, 159 Ill. 2d 51, 89 (1994); Tenner, 157 Ill. 2d at 380. The evaluation of the evidence's relevance and reliability lies within the sound discretion of the sentencing judge. Fair, 159 Ill. 2d at 89; Tenner, 157 Ill. 2d at 380. "Evidentiary rules are waived at this stage because, in determining the appropriate sentence, the sentencing authority must possess the fullest information possible concerning the defendant's life, character, criminal record and the circumstances of the particular offense." (Emphasis added.) Fair, 159 Ill. 2d at 89-90. Applying this authority to the case at bar, we find the trial court did not abuse its discretion in allowing Sirena to testify. The testimony was relevant to "the circumstances of the particular offense," providing a vivid aural picture of the victim's terror as defendant rummaged through the silverware in search of a weapon. Further, although defendant does not challenge the reliability of Sirena's testimony, we note that the trial court conducted a preliminary in-person examination of Sirena to determine her competence to testify, as was recommended in People v. Crews, 38 Ill. 2d 331, 338 (1967). Further, her statements were fully corroborated by other evidence presented at the sentencing hearing. See People v. Gosier, 145 Ill. 2d 127, 150-52 (1991) (no abuse of discretion in admitting, at the second stage of a capital hearing, corroborated testimony as to hearsay statements by a 3 |