concurring in part and dissenting in part:
I concur in the portion of the majority opinion affirming the defendant’s convictions. I dissent, however, from the imposition of the death sentence for the reasons stated in my separate opinion in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), based on my belief that the Illinois death penalty statute is unconstitutional and that the death sentence in this case should be vacated. See also United States ex rel. Lewis v. Lane (C.D. Ill. 1987), 656 F. Supp. 181, 195 (expressing “grave doubts” over the constitutionality of the Illinois death penalty statute); Eddmonds v. Illinois (1984), 469 U.S. 894, 896, 83 L. Ed. 2d, 207, 208, 105 S. Ct. 271, 272 (Marshall, J., dissenting) (urging review of the Illinois death penalty statute because “there are serious questions about the constitutionality of a scheme that gives the prosecutor the unbridled discretion to select, from the group of individuals convicted of an offense punishable by death, the subgroup that will be considered for death”); DeGarmo v. Texas (1985), 474 U.S. 973, 975, 88 L. Ed. 2d 322, 323, 106 S. Ct. 337, 338 (Brennan, J., dissenting) (quoting Gregg v. Georgia (1976), 428 U.S. 153, 189, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932) (“[t]he selection process for the imposition of the death penalty does not begin at trial; it begins in the prosecutor’s office. His decision whether or not to seek capital punishment is no less important than the jury’s. Just like the jury, then, where death is the consequence, the prosecutor’s ‘discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action’ ”); see Schnapper, The Capital Punishment Conundrum, 84 Mich. L. Rev. 715, 719 (1986) (quoting White, Book Review, Life in the Balance: Procedural Safeguards in Capital Cases (1984)) (“Any system that permits prosecutors to refrain from seeking the death penalty *** ‘will exhibit all of the vices that Furman found antithetical to the values of the Eighth Amendment’ ”); Bowers, The Pervasiveness of Arbitrariness and Discrimination Under Post-Furman Capital Statutes, 74 J. Crim. L. & Criminology 1067 (1983) (arguing that prosecutors seek the death penalty for extralegal considerations); Note, State v. Wilson: The Improper Use of Prosecutorial Discretion in Capital Punishment Cases, 63 N.C.L. Rev. 1136, 1144 (1985) (concluding that “unbridled prosecutorial discretion permits arbitrary and capricious imposition of the death penalty”).
I also disagree with the majority’s apparent conclusion that because the sentencing hearing was conducted before a judge and not a jury (119 Ill. 2d at 149) the erroneous admission of evidence would be harmless error. Although there is a presumption that a judge considers only competent and relevant evidence in determining a sentence, it is a presumption only. My view is that if the evidence erroneously admitted is so prejudicial or voluminous as to draw into question any person’s ability-judge or jury — to completely discount the evidence, the presumption may be set aside. It defies common sense and human nature to simply presume that a judge would not be be affected by the introduction of such evidence.
For these reasons, I respectfully dissent.