delivered the opinion of the court:
On February 15, 1990, defendant, Lloyd Wayne Hampton, was charged by indictment in Madison County with three counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9—1(a)(1), (a)(3)), two counts of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2) and one count of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12— 11). Defendant subsequently pled guilty to the three murder counts, and the armed violence and home invasion charges were dismissed on the State’s motion. The trial court accepted defendant’s guilty pleas and entered an order finding defendant guilty of three counts of first degree murder. Defendant chose to waive his right to have a jury at his death penalty hearing. The trial judge thereafter found that defendant was eligible for the death penalty under section 9—1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 —1(b)(6)), and further found that there were no mitigating factors sufficient to preclude a sentence of death. The judge entered an order sentencing defendant to death. That sentence was stayed (134 Ill. 2d R. 609(a)) pending defendant’s direct appeal to this court (Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d R. 603).
On February 9, 1990, defendant was arrested at a truck stop in Troy, Illinois, in connection with a charge not related to the instant case. Defendant was subsequently suspected of having been involved in the murder of Roy E. Pendleton and was questioned by Troy police officers about the murder. Defendant confessed to killing Pendleton and, on May 21, 1990, pled guilty to intentional murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(1)), murder in the course of a burglary (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(a)(3)), and murder in the course of an armed robbery (Ill. Rev. Stat. 1989, ch. 38, pаr. 9—1(a)(3)). Pursuant to the trial court’s request, the State recited the factual basis for the guilty pleas.
The State began by reciting the proposed testimony of several Troy police officers. The officers would state that they took defendant into custody on February 9, 1990, in connection with a charge unrelated to the instant case. At the time of his arrest, defendant was in possession of an automobile which the arresting officers recognized as belonging to Roy E. Pendleton. Pendleton’s ownership of the vehicle was confirmed by the police officers through the Illinois Secretary of State’s office. One of the officers proceeded to Pendleton’s residence, a room at the Carroll House Inn in Troy, where he discovered Pendleton’s body. Pendleton had been tied and gagged and there were three lacerations on his forehead and a butcher knife protruding from his neck. Pendleton’s room appeared to have been ransacked.
The State went on to detail several pieces of physical evidence which connected defendant to the murder scene. Fingerprints lifted from the scene by an evidence technician were identified as belonging to defendant. Saliva samples taken from cigarette butts found at the murder scene were later tested and found to be consistent with defendant’s saliva. Finally, a spot of blood found on the pants defendant was wearing at the time of his arrest was analyzed and was found to be consistent with Pendleton’s blood and inconsistent with defendant’s blood.
The State also referred to the contents of defendant’s confession as part of the factual basis for the guilty pleas. As noted, following the discovery of Pendleton’s body, defendant was questioned regarding Pendleton’s murder by a Troy police officer. Defendant admitted to the killing and gave a videotaped statement detailing his commission of the murder. The statement itself was admitted into evidence at defendant’s death penalty hearing. Briefly, defendant’s confession described how, on February 8, 1990, defendant gained entry into Pendleton’s room under the pretext of using Pendleton’s restroom. Defendant went on to state that he ransacked the room for valuables, tied and gagged Pendleton, and placed his hand over Pendleton’s nose and mouth, ultimately causing Pendleton to die by asphyxiation. Defendant further described how he cut Pendleton across the forehead and stabbed him in the throat with a butcher knife. Defendant went on to state that, after he was satisfied that Pendleton was dead, he took several of Pendleton’s possessions and left in Pendleton’s automobile.
The State continued its recitation of the factual basis by referring to the proposed testimony of the pathologist who performed an autopsy on Pendleton’s body. According to the pathologist, Pendleton had three lacerations across his forehead, black electrical-type tape over his mouth and nose, and a butcher knife protruding from his throat. The autopsy revealed that Pendleton died as a result of asphyxiation.
The State also referred to evidence that, at the time of defendant’s arrest, defendant was in possession of a $500 check made out to Pendleton and the keys to two safe-deposit boxes registered to Pendleton. The State further recited that a bartender at a Livingstqn, Illinois, bar would testify that, during the time period immediately following the murder of Pendleton, defendant came into the bar, tried to cash a $500 check and bought a round of drinks for the house. This completed the State’s recitation of the factual basis for defendant’s guilty pleas.
Both before and after the presentation of the factual basis, the trial judge admonished defendant of the effects of his guilty pleas and questioned defendant regarding the voluntariness of his pleas. Following the recitation, defendant agreed that the asserted facts were true and admitted, in response to the judge’s query, that he had killed Pendleton. The trial judge accepted defendant’s guilty pleas and adjudged defendant guilty of three counts of first degree murder. The judge entered an order to that effect and ordered the preparation of a presentence investigation report on defendant.
A death penalty hearing was commenced on June 27, 1990. Defendant chose to waive his right to jury sentencing and elected to proceed with a bench sentencing hearing. At the start of the eligibility phase of the hearing, thе court took judicial notice, on the State’s request, of the factual basis presented at the guilty plea hearing. The State then presented the testimony of Linda Van Dyke, an employee of Madison County Probation and Court Services who was assigned to prepare a presentence investigation report on defendant.
Van Dyke testified that, in preparing that report, she interviewed defendant at the Madison County jail. During the interview, Van Dyke asked defendant to explain why he had committed the murder. Defendant responded that he had been paid to kill Pendleton and that he had killed Pendleton because Pendleton was a “snitch.” On cross-examination, Van Dyke testified that defendant did not tell her who had allegedly paid him to commit the murder or where this plan originated. Van Dyke further admitted on cross-examination that defendant gave her no details regarding whom Pendleton had allegedly “snitched” on.
The State next called Robert Joseph Noonan, chief of police for the City of Troy, Illinois. Chief Noonan testified that on May 30, 1990, he received a letter from a person signing as “L.W. Hampton.” It was stipulated by the defense that defendant had in fact authored the letter. Chief Noonan stated that, in the letter, defendant referred to Pendleton in a derogatory manner and expressed his lack of remorse for the murder. The letter in question was admitted into evidence following Chief Noonan’s testimony.
The State’s next witness at the eligibility phase was Officer Thomas Recklеin of the Troy police department. Officer Recklein had participated in the February 9, 1990, arrest of defendant. Officer Recklein testified that, at the time of his arrest, defendant was in possession of Pendleton’s automobile and several other items belonging to Pendleton. Officer Recklein stated that, following defendant’s arrest, Officer Recklein read him his Miranda rights and interviewed him. Defendant confessed to the officer and later gave a videotaped confession at the Madison County sheriff’s department. Over a defense objection, the trial court allowed the prosecution to play the tape.
In his confession, defendant stated that he came upon Pendleton on February 8, 1990, in the parking lot of the motel in which Pendleton resided. Pendleton was getting into his automobile and defendant asked him for a ride. Pendleton refused and drove away but returned a short time later and went into his room. Defendant knocked on Pendleton’s door and asked if he could enter Pendleton’s room in order to use the restroom. Pendleton allowed defendant to enter his room.
Defendant stated that, upon gaining entry to Pendleton’s room, he told Pendleton to lie down on his bed. Defendant then began going through Pendleton’s belongings. Defendant determined that a suitcase and a microwave oven he found in the room were worth taking and he set those items by the door. Defendant then told Pendleton that he had a choice: he could be tied up and gagged, or he could be killed. Defеndant tied Pendleton’s wrists and ankles and put tape over his mouth. Defendant stated that he was not convinced that Pendleton could not get loose, so he put tape over Pendleton’s nose and put his hand over Pendleton’s nose and mouth in an effort to suffocate Pendleton.
Defendant further stated that he “had been told” that a dead body does not bleed, so he cut Pendleton’s forehead to determine if he was dead. The wounds bled, so defendant put his hand back over Pendleton’s mouth and nose for a few minutes longer. Then, in order to make sure that Pendleton had died this time, defendant stabbed Pendleton in the throat with a knife he found in the room. When he saw that the stab wound did not bleed, defendant put the suitcase and the microwave into Pendleton’s automobile and left the scene in the automobile. Defendant drove to a bar in Livingston, Illinois, and bought beer for the house. Defendant then got back into Pendleton’s automobile and drove to the truck stop in Troy where he was arrested.
After playing the videotape of defendant’s confession, the State presented the testimony of Dee Heil, a crime scene investigator for the Illinois State Police. Heil had investigated the scene of Pendleton’s murder and had observed Pendleton’s body at the scene. Heil testified that Pendleton’s body was bound with ropes, tape and a nylon dog leash. Pendleton’s throat was slashed and a large chef-style knife was protruding from it. Pendleton’s forehead had three lacerations and therе were what appeared to be burns and cigarette ashes on his eyelids. Heil also described stab holes located in the bed around the perimeter of Pendleton’s head.
Heil’s testimony ended the State’s presentation of evidence at the eligibility phase. The defense presented no evidence. Following closing arguments, the trial court found that the State had proved beyond a reasonable doubt that defendant was over 18 years of age at the time of the murder and that defendant had intentionally murdered Pendleton in the course of a burglary and in the course of an armed robbery. On those bases, the court found defendant eligible for the death penalty pursuant to section 9—1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(6)). The State had also argued that defendant was eligible based upon his commission of a murder-for-hire. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(5).) The trial court did not find defendant eligible upon that ground. The aggravation and mitigation phase of the death penalty hearing was thereafter commenced.
The State’s first witness in aggravation was Deanna Schaefermayer. Schaefermayer described the details of an assault defendant had perpetrated upon her in California in 1987. Following an argument between defendant and Schaefermayer in Schaefermayer’s car, defendant hit Schaefermayer and forced her to go into her house with him. Once inside, defendant ordered Schaefermayer to undress and put a leather strap around her neck. Defendant waved a butcher knife in Schaefermayer’s face and repeatedly threatened to kill her. The ensuing attack lasted from approximately 1 a.m. until 8:30 a.m., during which time defendant placed the tip of the knife into Sehaefermayer’s vagina and plunged the knife into the mattress on which she was lying in close proximity to her face. As a result of this attack, defendant was convicted of assault with a deadly weapon and was imprisoned in California for four years. Schaefermayer testified that she was in counseling for post-trauma stress for approximately one year after the assault. On cross-examination, Schaefermayer admitted that, following defendant’s release from prison in California, defendant had no contact with her whatsoever.
Following Schaefermayer’s testimony, the court took judicial notice, on the State’s request, of the evidence presented at the guilty plea hearing and that presented at the eligibility phase of the death penalty hearing. The State then proceeded to admit into evidence, over a defense objection, certified copies of defendant’s prior convictions. This evidence showed that defendant’s criminal record included several theft convictions, a robbery conviction, an escape conviction, and an assault with a deadly weapon conviction arising out of the attack on Schaefermayer.
The State then asked the trial court to take judicial notice of the information contained in the presentence report prepared by Linda Van Dyke. The State asked that the court pay particular notice to defendant’s criminal history and to the statements made by defendant to Van Dyke. The presentence report contained defendant’s statements to Van Dyke to the effect that he had enjoyed killing Pendleton, that he had no remorse for the murder, that he had been violent in the past, that he wanted the death penalty, and that, if he did not receive the death penalty, he would commit further homicides. The court indicated that it would take the requested notice. Following this exchange, the State rested. The trial court inquired whether defendant would be presenting any evidence on his behalf and, after asking for and receiving a brief recess, defense counsel responded that no evidence would be presented by the defense. Following the arguments of counsel, the court asked defendant if he wished to make a statement. Defendant responded that he wanted to state for the record that, should he be sentenced to death, he wanted no appeals beyond those required by State law. The trial court thereafter returned a verdict finding no mitigating factors sufficient to preclude a sentence of death. An order was entered sentencing defendant to death.
In this appeal, defendant does not contest the validity of his guilty pleas and does not challenge his guilt on the three murder counts. Rather, defendant’s contentions of error are directed exclusively toward his sentencing hearing and the propriety of his death sentence.
I
Defendant first contends that the State failed to prove beyond a reasonable doubt that he was eligible to receive the death penalty. Under the Illinois death sentencing scheme, a defendant is eligible for the death penalty only where, after having been found guilty of first degree murder, he is proved to have been 18 or older at the time of the offense and one or more of the enumerated statutory aggravating factors is shown to be present. (Ill. Rev. Stat. 1989, ch. 38, pars. 9— 1(b)(1) through (b)(8).) The factors which establish eligibility for the death penalty must be proved by the State beyond a reasonable doubt. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(f).) As noted, the trial court in the instant case found defendant eligible for the death penalty pursuant to section 9—1(b)(6) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(6)). The version of section 9—1(b)(6) in effect at the time of Pendleton’s murder provided that a defendant was eligible for death where it was proved that he committed first degree murder “in the course of” one of the following felonies: “armed robbery, robbery, aggravated criminal sexual assault, aggravated kidnapping, forcible detention, arson, aggravated arson, burglary, home invasion, calculated criminal drug conspiracy ***, or the attempt to commit any of [these] felonies ***.” (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(6)(c).) The trial court found that the State had proved beyond a reasonable doubt that defendant had murdered Pendleton in the course of a burglary and in the course of an armed robbery. Defendant argues that neither of these factors was adequately proved.
We first address the validity of defendant’s eligibility based upon murder in the course of an armed robbery. Defendant contends that the State failed to prove this factor beyond a reasonable doubt. Defendant’s argument focuses on the language “in the course of,” and asserts that the evidence failed to prove that Pendleton’s murder took place “in the course of” an armed robbery. Defendant points out that Pendleton died by asphyxiation. According to defendant, the evidence demonstrates that he asphyxiated Pendleton, using only his hand, before he was armed with a weapon. The offense of armed robbery, defendant correctly points out, requires proof that the defendant was armed with a dangerous weapon at the time he committed the robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 18— 2.) Thus, defendant argues, an armed robbery could not have been taking place at the time he killed Pendleton because he was not armed with a weapon until after he suffocated Pendleton.
We note, parenthetically, that defendant makes no real contention that the evidence did not establish that he committed an armed robbery. However, even if such a contention were made, we would find it to be patently without merit. The offense of armed rоbbery requires proof that the defendant took property from the presence of another by use or threat of force and while armed with a dangerous weapon. (Ill. Rev. Stat. 1989, ch. 38, pars. 18—1, 18—2.) In his confession, defendant stated that he began ransacking Pendleton’s room and piling Pendleton’s valuables by the door prior to killing Pendleton. Defendant further admitted that he ultimately left the room with several of Pendleton’s possessions, including Pendleton’s automobile. When he was arrested following the murder, defendant was found to be in possession of Pendleton’s automobile and several other items belonging to Pendleton. Defendant further confessed that he used a knife during the commission of this crime. Thus, the evidence clearly proved defendant’s commission of an armed robbery beyond a reasonable doubt.
Defendant’s primary argument on this point, that he did not murder Pendleton “in the course of” an armed robbery, is negated by both the facts and the law. Contrary to defendant’s assertions, the evidence does not clearly show that defendant was not armed until after he killed Pendleton. In his confession, defendant stated that, after he first blocked Pendleton’s nose and mouth, he cut Pendleton several times on the forehead. Defendant went on to state that, because those wounds bled, he believed that Pendleton was still alivef so he suffocated Pendleton for a few minutes longer. These statements demonstrate that defendant was in possession of, and made use of, a knife while he was in the process of killing Pendleton. Moreover, as noted above, defendant began taking possession of Pendleton’s belongings prior to killing Pendleton. Thus, the evidence clearly established that defendant murdered Pendleton “in the course of” his commission of an armed robbery.
Moreover, even if defendant was not in possession of a weapon until after he caused Pendleton’s death, his eligibility on this ground would not be rendered defective. This court has repeatedly held that, in order to establish the aggravating factor of murder in the course of another felony, the State need not prove .that the commission of the underlying felony had begun when the murder occurred. (People v. Thomas (1990),
“Just as the phrase ‘in the course of does not require that defendant complete one of the other felonies in order to be eligible for the death sentence [citation], we also believe that it does not require that the armed robbery commence prior to the fatal gunshot, since the precise timing of the offenses is not necessarily indicative of defendant’s intent. The jury concluded beyond a reasonable doubt that defendant committed both a murder and an armed robbery, which offenses occurred essentially simultaneously. The trial testimony and verdicts sufficiently support the court’s finding that the murder occurred ‘in the course of’ an armed robbery.” (Richardson,123 Ill. 2d at 359 .)
Clearly, defendant’s perpetration of the murder and armed robbery of Pendleton occurred either simultaneously or as part of the same criminal episode. (See Thomas,
Defendant also challenges the trial court’s finding that he was eligible for death on the ground that he murdered Pendleton in the course of a burglary. Defendant argues that the crime he committed in entering Pendleton’s room did not constitute burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19— 1), but rather constituted residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—3), because the room at the Carroll House Inn was Pendleton’s residence. As outlined above, the version of section 9—1(b)(6) in effect in February 1990, while including burglary on the list of underlying felonies which would support a death sentence, did not include residential burglary on that list. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(b)(6).) Defendant points out that this court has previously vacated death sentences governed by that version of the statute where eligibility was predicated on the defendant’s commission of a murder in the course of a residential burglary. See People v. Simms (1991),
We need not determine whеther defendant’s eligibility based upon murder in the course of a burglary is subject to attack on the ground herein advanced. We have found that defendant was independently eligible for the death penalty on the ground that he committed murder in the course of an armed robbery. Thus, even if we were to conclude that defendant’s eligibility was improperly premised on murder in the course of a burglary — and we do not make any such finding — the validity of defendant’s eligibility would not be impaired because a separate, valid aggravating factor supported his eligibility. (See Zant v. Stephens (1983),
Defendant however argues that his death sentence must bе vacated and the cause remanded for resentencing if either of the two aggravating factors upon which he was found eligible for the death penalty is invalid. Defendant cites this court’s decision in People v. Brownell (1980),
Brownell wоuld not require resentencing in the case at bar were the burglary — based aggravating factor invalidated. In that case, resentencing was mandated because, at the second phase of the sentencing hearing, the sentencing body could have considered an aggravating factor which was not warranted by the evidence; that is, the evidence did not show that the defendant had killed in order to silence a witness, yet the sentencer could have weighed that factor in making its sentencing determination. In the instant case, even if the burglary-based aggravating factor were not sufficient to render defendant eligible for the death penalty, the evidence did establish that defendant had engaged in conduct which constituted either burglary or residential burglary. The trial judge was therefore still fully entitled to consider the evidence underlying that factor in making his sentencing determination. (See Coleman,
II
Defendant next challenges the admission of certain evidence at both phases of his death penalty hearing. Defendant asserts that his death sentence must be vacated because irrelevant and prejudicial evidence was introduced at the eligibility phase and statements obtained in violation of his fifth amendment and sixth amendment rights were admitted at both the eligibility phase and the aggravation-mitigation phase. We first address defendant’s contention that irrelevant and prejudicial evidence was admitted at the eligibility phase.
Defendant challenges the admission, at the eligibility phase of his death penalty hearing, of certain testimony from Troy Chief of Police Robert Noonan. As noted, Chief Noonan testified about the contents of a letter.he received from defendant on May 30, 1990. The State asked Chief Noonan to give his opinion, based upon the letter, as to whether defendant had any remorse for the murder of Pendleton. Chief Noonan responded by stating, “Didn’t indicate to me that he had remorse. He made a statement here, he said, there is only one regret I have about killing that worthless piece of shit, I wish I had cut his fucking head off.” Chief Noonan also testified that, in the letter, defendant referred to the victim by stating, “the rotten bastard was a snitch.” Defendant did not object to any of these statements and the letter was admitted into evidence without objection. Defendant сharges that the police chief’s testimony regarding defendant’s lack of remorse and his derogatory references to Pendleton were irrelevant to the issue of defendant’s eligibility and were highly prejudicial.
Our review of the record indicates that defendant has waived any error in the introduction of this testimony. Defendant failed to object to the complained-of comments at the sentencing hearing and failed to raise the issue in his post-sentencing motion. Such failure results in a waiver of the issue on review. (People v. Guest (1986),
Moreover, we note that defendant’s sentencing hearing was conducted before the trial judge, not a jury. In such a case, there exists a presumption that the judge considered only competent and relevant evidence. (People v. Shum (1987),
Defendant next contends that statements obtained in violation of his fifth amendment and sixth amendment rights were improperly admitted at both the eligibility and the aggravation-mitigation phases of his death penalty hearing. Following the acceptance of defendant’s guilty pleas, a presentence investigation report on defendant was ordered by the court. As noted, Linda Van Dyke, a probation officer, interviewed defendant in the course of preparing that report. Van Dyke was called to testify for the State at the eligibility phase of defendant’s death penalty hearing.
Van Dyke testified that defendant stated to her during the interview that he had been hired to kill Pendleton and that he had killed Pendleton because he had been told that Pendleton was a “snitch.” The State referred to this testimony in its opening and closing statements at the еligibility phase in arguing that defendant was eligible for death on the additional basis of having committed a murder-for-hire (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1(b)(5)).
At the aggravation-mitigation phase of the death penalty hearing, the State requested that the court take judicial notice of the contents of the presentence report prepared by Van Dyke and to pay particular notice to defendant’s statements contained therein. The court indicated that it would do so. The State thereafter referred to some of these statements in its closing argument at the aggravation-mitigation phase.
Defendant argues that the introduction of his statements to Van Dyke violated his fifth amendment privilege against self-incrimination and his sixth amendment right to the assistance of counsel. (U.S. Const., amends. V, VI.) We briefly note that defendant also contends that the admission of Van Dyke’s testimony at the eligibility phase violated “the rules of evidence” governing that phase. Defendant apparently argues that the testimony was irrelevant to the issue of his eligibility; however, defendant provides no reasoning or authority to support this contention and we find nothing in the record which shows that the rules of evidence were violated. At the eligibility phase, Van Dyke testified only, in regard to defendant’s statements about killing Pendleton pursuant to a contract. Such testimony was relevant to the question of whether defendant was eligible for death based upon the murder-for-hire statutory aggravating factor (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(5)). Thus, defendant’s assertion that Van Dyke’s testimony at the eligibility phase violated the rules of evidence is merit-less.
We now turn to defendants constitutional contentions. Defendant contends that his rights under the fifth and sixth amendments were infringed when probation officer Van Dyke questioned defendant about the murder while defendant was incarcerated and while he was represented by counsel. Defendant asserts that he continued to possess the right to remain silent and the right to the assistance of counsel at the time of the interview with Van Dyke and that these rights were violated. Beyond these assertions, however, defendant provides almost no elaboration as to how these constitutional rights were infringed. Defendant does cite to the United States Supreme Court’s decision in Estelle v. Smith (1981),
The Supreme Court in Estelle held that the introduction of the psychiatrist’s testimony at the death penalty hearing violated the defendant’s rights under the fifth and sixth amendments. The Court initially determined that the fifth amendment privilege against self-incrimination and the sixth amendment right to the assistance of counsel continue to apply at the penalty phase of a capital murder trial. (Estelle,
The Estelle Court also held that the introduction of the psychiatrist’s testimony at the death penalty hearing violated the defendant’s sixth amendment right to the assistance of counsel. The Court determined that the interview with the psychiatrist was a critical stage of the criminal proceedings against the defendant. The Court went on to hold that the defendant’s sixth amendment right to counsel had been violated because the defendant’s attorneys were not notified in advance that the psychiatric examination would encompass the critical issue of the defendant’s future dangerousness. As a result, the defendant was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be used. Estelle,
As noted, defendant herein argues that Van Dyke’s questioning of him for the presentence report violated his fifth amendment and sixth amendment rights. Again, we note that, beyond these assertions, defendant does not provide us with any explanation as to how these rights were violated. However, in light of defendant’s citation to Estelle, we surmise that defendant is arguing that Estelle requires Miranda warnings and prior notice to defense counsel when a probation officer interviews a defendant for a presentence report, at least where the information ascertained at the interview may be used against the defendant at a capital sentencing hearing.
This court has not yet decided whether, under Estelle, Miranda warnings are required where a probation officer interviews a defendant pursuant to a court-ordered presentence investigation. However, we find that the instant case is not the proper vehicle for addressing this potentially significant issue, for the following reasons. In People v. Devin (1982),
The logic behind the waiver rule is exemplified by this case. Had defendant moved to suppress his statements or objected on fifth amendment grounds in a timely manner at the sentencing hearing, inquiry could have been made into whether he was in fact given Miranda warnings by Van Dyke. As it stands, there is no indication in the record as to whether or not Van Dyke gave defendant Miranda warnings prior to the interview. Likewise, had the issue been raised in defendant’s post-sentencing motion, the trial court could have conducted a hearing at which it could have been determined whether Miranda warnings were given. Thus, defendant’s failure to adequately preserve the issue has left this court with a record completely barren of any indication as to whether defendant was or was not given Miranda warnings prior to being interviewed by Van Dyke. Significantly, defendant nowhere states in his brief that he was not given Miranda warnings by Van Dyke. Defendant has therefore waived the issue, and we need not decide whether Miranda warnings are required where a probation officer interviews a defendant pursuant to a court-ordered presentence investigation. See People v. Coleman (1989),
Contrary to defendant’s urgings, the plain error exception to the waiver rule does not save the issue in this case. Plain error is a “ ‘narrow and limited exception to the general waiver rule.’ ” (Szabo,
The evidence presented at the eligibility phase of defendant’s death penalty hearing was not closely balanced, as it was clearly established that defendant was eligible based upon murder in the course of an armed robbery. Neither was the evidence introduced at the aggravation-mitigation phase closely balanced. To the contrary, overwhelming aggravating evidence was presented. The State presented defendant’s extensive criminal record, which record demonstrated an increasingly violent history of offenses. The State further proffered the testimony of Deanna Schaefermayer, who detailed a brutal attack perpetrated upon her by defendant in 1987. Defendant’s complete lack of remorse for the murder of Pendleton was also plainly evidenced. Defendant’s letter to Chief Noonan, while possibly improperly admitted at the eligibility phase, was properly considered at the aggravation-mitigation phase. (See People v. Barrow (1989),
Neither was the claimed error so substantial that defendant was thereby denied a fair sentencing hearing. (People v. Carlson (1980),
Initially, we note that it is extremely unclear whether or not defendant was given Miranda warnings by Van Dyke. We find it very significant that defendant nowhere states in his briefs to this court that he was not given Miranda warnings by Van Dyke. The plain error exception will be invoked only where the record clearly shows that an alleged error affecting substantial rights was committed. (People v. Young (1989),
Further, it is apparent from a reading of defendant’s statements in the presentence report that he was aware that the information he gave to Van Dyke would be used to determine whether he should be sentenced to death. The report indicates that, when Van Dyke asked defendant about his family and background, defendant cautioned her that he did not want any of the information he was going to give her used as mitigation. The report also states that defendant told Van Dyke throughout the course of the interview that he did not want any of the information he gave to be “perceived” as mitigating. Finally, the report relates that defendant stated to Van Dyke that he wanted “the Court to understand” that he deserves the death penalty. These comments by defendant indicate that defendant was clearly aware that his statements to Van Dyke were to be related to the sentencing judge and were to be considered by the judge in sentencing defendant. That defendant was aware of this is underscored by the fact that the interview to which defendant was submitting, a presentence investigation interview, was obviously being conducted for the purpose of obtaining information to be used in sentencing defendant. Defendant was thus clearly aware of the purpose of his interview with Van Dyke and of the intended use of the information obtained by Van Dyke. In light of this, it cannot reasonably be contended that the record clearly shows that an error affecting substantial rights was committed.
Moreover, the alleged error complained of, the failure to provide Miranda warnings, is not an error of constitutional magnitude. We note that no contention is made by defendant that his statements were in any way compelled, coerced or otherwise rendered involuntary so as to have violated defendant’s privilege under the fifth amendment against compelled self-incrimination. Rather, defendant’s claim of error rests upon an alleged violation of his claimed right to warnings under Miranda. The United States Supreme Court has held that the Miranda holding sweeps more broadly than the fifth amendment, and that the “ ‘prophylactic Miranda warnings *** are “not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.” ’ ” (Oregon v. Elstad (1985),
This court has previously declined to apply the plain error exception to allegations that a defendant’s fifth amendment rights were violated by the prosecutor’s improperly commenting on a defendant’s post-arrest silence (Herrett,
Defendant also argues that the admission of his statements to Van Dyke violated his sixth amendment right io the assistance of counsel. Like his claim of a Miranda violation, defendant’s claim of a sixth amendment violation has been waived by his failure to raise the issue ih the trial court. (Szabo,
As noted, in Estelle, the United States Supreme Court held that the defendant’s sixth amendment right to counsel was violated because the defendant’s lawyers were not notified in advance that the psychiatric examination of their client would be used to obtain information to be used against him at his death penalty hearing. As a result, the Estelle Court determined, the defendant was deprived of the right to consult with his counsel regarding “whether to submit to the examination аnd to what end the psychiatrist’s findings could be employed.” (Estelle,
The circumstances that led the Estelle Court to find a sixth amendment violation are not present in the case at bar. Defendant does not claim, and the record does not indicate, that defendant’s attorneys were not notified in advance that he would be interviewed in the course of the presentence investigation. The presentence investigation was formally ordered by the trial court on May 22, 1990, and the interview took place in early June of 1990. Defendant does not contend that his attorneys were unaware of the court’s May 22, 1990, order, and the record would not support such a contention. When the trial judge, at the beginning of the sentencing hearing, referred to the presentence report and asked counsel if they had received copies, defense counsel expressed no surprise and registered no complaint that they had not been notified of the investigation or the interview.
Likewise, defendant does not assert that his attorneys were unaware of the purpose and scope of the interview. In Estelle, the psychiatric examination was ostensibly conducted for the limited purpose of determining the defendant’s competency to stand trial and the defendant’s lawyers were not made aware that any other purpose for the examination existed. (Estelle,
Thus, the situation that led the Estelle Court to find an abridgement of the right to counsel is not present in this case. There is no indication in this record that defendant was deprived of the meaningful advice of his counsel prior to the interview or that he was forced to proceed with the interview after requesting and being denied counsel. We therefore find that Van Dyke’s presentence interview did not violate defendant’s sixth amendment right to the assistance of counsel. See United States v. Cortes (2d Cir. 1990),
Ill
Defendant next contends that his trial counsel’s conduct at his death penalty hearing rendered his death sentence unconstitutionally unreliable. Defendant claims that defense counsel failed to present evidence in mitigation, failed to object to allegedly improper aggravation evidence, and failed to deliver an adequate argument in favor of a sentence other than death. According to defendant, these alleged failures on counsel’s part rendered his sentence unconstitutionally unreliable because the prosecution’s case was not subjected to “meaningful adversarial testing.”
Defendant’s claim that his counsel failed to subject the State’s case to “meaningful adversarial testing” is, while defendant does not term it as such, a claim that he received ineffective assistancе of counsel under the sixth amendment (U.S. Const., amend. VI). In United States v. Cronic (1984),
In Strickland, the Supreme Court established a two-pronged test for evaluating criminal defendants’ claims of ineffective assistance of counsel under the sixth amendment. Under that test, a defendant asserting such a claim must first show that his counsel’s performance was deficient. To establish this prong, the defendant must prove that his counsel made errors so serious, and his performance was so deficient, that he was not functioning as the “counsel” guaranteed by the sixth amendment. (Strickland,
It is not a reviewing court’s place to lightly second-guess trial counsel’s judgment. Thus, when reviewing a claim of ineffective assistance, this court must accord much deference to defense counsel’s judgment and must indulge a strong presumption that counsel’s conduct “falls within the wide range of reasonable professional assistance.” (Strickland,
Defendant first faults his trial counsel’s cоnduct in allegedly failing to present evidence in mitigation at defendant’s death penalty hearing. We begin by noting that this court has repeatedly held that defense counsel’s failure to introduce mitigation evidence at a death penalty hearing does not necessarily constitute ineffective assistance of counsel. (People v. Emerson (1987),
Moreover, defendant’s claim must fail because defendant points to no mitigating evidence which could have been introduced by defense counsel at the sentencing hearing but was not. (Emerson,
Moreover, even if counsel’s conduct on this point could be deemed unreasonable, defendant has not shown that this alleged deficiency affected the outcome of the proceeding. As noted in our discussion of the preceding issue, the evidence presented by the State in aggravation was overwhelming. Given this fact, and the fact that defendant has failed to bring to our attention any additional mitigating evidence that could have been presented, we find that defendant has not demonstrated how his counsel’s conduct could have affected the outcome of the proceeding.
Defendant also claims that his counsel’s ineffectiveness was demonstrated by counsel’s failure to object to the admission of defendant’s statements to Van Dyke. Although defendant again fails to provide any explanation as to why this evidence was improperly admitted, he is apparently referring to the alleged fifth amendment and sixth amendment violations discussed in the preceding issue. As stated, we have found no sixth amendment violation in the introduction of defendant’s statements to Van Dyke and an ineffectiveness claim based upon failing to object on that ground is thus meritless. We have also found that the contention that the statements were obtained in violation of defendant’s Miranda rights has been waived by defendant’s failure to raise the issue in the trial court. We now conclude that defendant has nоt proved that his counsel was unconstitutionally ineffective in failing to object on Miranda grounds in the trial court.
As noted, the burden is on the defendant seeking to assert an ineffective assistance claim to prove that his counsel was incompetent and to prove that this incompetence affected the outcome of the proceeding. (Strickland,
Furthermore, defendant has not proved that the failure to object to these statements affected the outcome of the sentencing proceedings. To sustain this burden, defendant is required to show that there is a reasonаble probability that, had defense counsel objected, defendant’s statements would have been excluded and the sentencing judge would ultimately have concluded that the balance of aggravating and mitigating factors did not warrant death. (Strickland,
We note also that defense counsel’s decision not to object to the admission of defendant’s statements in the presentence report could have been deliberate trial strategy. As noted, the presentence report contained statements by defendant that constituted valuable mitigating evidence as well as statements that reflected adversely upon defendant. Defense counsel could reasonably have concluded that the value of the mitigation contained in the report merited allowing the report to be introduced. It is well established that errors in trial strategy and judgment do not establish incompetence. (People v. Madej (1985),
Defendant’s final claim of ineffective assistance charges incompetence in counsel’s alleged failure to adequately argue in favor of a sentence less than death. However, we find no deficiency in defense counsel’s closing argument. Therein, defense counsel alluded to the fact that defendant had instructed him not to argue against the imposition of the death penalty and counsel stated that he found it hard to argue against the death penalty “without [defendant’s] acquiescence.” However, defense counsel did argue a number of reasons why defendant should not be sentenced to death, including pointing to the mitigating evidence contained in the presentence report. Defense counsel concluded his argument by asking the court to carefully consider all the evidence and to arrive at a just verdict.
We find no incompetence evidenced by defense counsel’s argument. Defense counsel highlighted what was apparently the only available mitigating evidence. Further, counsel argued against the death penalty to the extent he was able to, in light of defendant’s apparent instructions not to argue against that sentence. Moreover, defense counsel made known to the court, through his closing argument, defendant’s wish that his counsel not argue against а death sentence. This acknowledgement of the gravity of his conduct by defendant could certainly be seen as a mitigating circumstance. Thus, we find that defense counsel’s closing argument was not unreasonable, particularly in light of the apparent constraints put upon counsel by defendant. See Emerson,
Accordingly, we find that none of the alleged errors pointed to by defendant, either separately or taken as a whole, establishes that defendant was denied the effective assistance of counsel as guaranteed by the sixth amendment. People v. Hattery (1985),
IV
As his final argument for vacating his death sentence, defendant challenges the constitutionality of the Illinois death penalty statute (Ill. Rev. Stat. 1989, ch. 38, par. 9—1). Defendant proffers two grounds for invalidating the statute: (1) that the statute is unconstitutional because it does not sufficiently minimize the risk of arbitrarily or capriciously imposed death sentences, and (2) that the statute violates the eighth and fourteenth amendments because it places a burden on the defendant which precludes meaningful consideration of mitigation. As to the first of these challenges, this argument has been repeatedly considered and rejected by this court and we decline to reconsider this court’s previous holdings. (See People v. Johnson (1991),
Defendant’s argument in this regard focuses on the requirement in the death penalty statute that, if the sentencer finds no mitigating factors “sufficient to preclude” a sentence of death, the death penalty must be imposed. (Ill. Rev. Stat. 1989, ch. 38, par. 9—1(h).) Citing a dictionary definition of “preclude,” defendant argues that this language places a burden on the defendant to provide mitigating evidence, which makes imposition of the death penalty “impossible.” Defendant contends that, once a defendant has been found eligible for deaijh, a determination has been made| that death is a possible sentence. Therefore, because a thing cannot be simultaneously possible and impossible, defendant asserts that only a sentencer who refuses to follow the law will fail to sentence an eligible defendant to death. We disagree with this interpretation.
This court has repeatedly held that the Illinois death penalty statute does not impose a constitutionally impermissible burden upon a defendant. (See People v. Thomas (1990),
We note that the United States Supreme Court, in Walton v. Arizona (1990),
CONCLUSION
For the reasons set forth above, we affirm defendant’s convictions and death sentence. We direct the clerk of this court to enter an order setting Wednesday, November 11, 1992, as the date on which the sentence of death entered by the circuit court of Madison County shall be carried out in the manner provided by law. (Ill. Rev. Stat. 1989, ch. 38, par. 119—5.) The clerk of this court shall send a certified copy of this mandate to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is confined.
Judgment affirmed.