specially concurring:
I agree with my colleagues that the judgment of the circuit court must be affirmed in all respects. I write separately, however, to add several observations to the majority’s analysis concerning defendant’s claim regarding his attorney’s decision to stipulate to defendant’s death eligibility during the sentencing phase of the proceedings.
The majority correctly reviews defendant’s claim under the familiar standards enunciated by the United States Supreme Court in Strickland v. Washington. See People v. Smith, 176 Ill. 2d 217 (1997) (rejecting the Cronic-Hattery standard and employing the Strickland standard where defense counsel did not contest defendant’s eligibility for the death penalty). After applying the Strickland analysis to the instant facts, my colleagues rightly conclude that defendant cannot establish the requisite prejudice in this case because the eligibility determination would not have been different had counsel challenged the State’s evidence. 182 Ill. 2d at 154-55. The majority reaches this conclusion solely on the basis that “[t]he verdicts returned by the jury clearly established the defendant’s commission of the murder in the course of attempted armed robbery. These were certainly sufficient also to establish defendant’s eligibility for the death penalty under section 9 — 1(b)(6).” 182 Ill. 2d at 155.
Although I agree with my colleagues that the jury’s verdicts play a substantial role in our analysis, I do not agree that their existence alone compels the conclusion that defendant cannot establish prejudice. Section 9 — 1(b)(6) requires defendant to have intended to kill the victim or to have known that his actions created a probability of death or great bodily harm. The trial verdicts alone, of course, do not establish this beyond a reasonable doubt in the context of the sentencing hearing. I note that the jury here returned only a general verdict of guilty with respect to first degree murder based on theories of intentional, knowing, and felony murder. Therefore, we do not know beyond a reasonable doubt that the jury agreed unanimously on the question of defendant’s mens rea. Nevertheless, the jury’s verdicts, when viewed in conjunction with all of the evidence adduced at the trial which the trial judge heard, form the basis for affirming the trial judge’s specific finding of death eligibility on appeal. I reach this conclusion because several legal presumptions arise when, as in this case, the trial judge, and not a jury, serves as the trier of fact during the sentencing hearing. See People v. Johnson, 149 Ill. 2d 118 (1992). One such presumption is that the trial judge knows and follows the law. People v. Woolley, 178 Ill. 2d 175 (1997). We may presume, therefore, that the trial judge knew of the specific elements required under section 9 — 1(b)(6) for a finding of death eligibility. Moreover, the judge, as the trier of fact, may infer the intent to take a life from a defendant’s acts and the circumstances surrounding the commission of the offense. People v. Garcia, 97 Ill. 2d 58, 85 (1983). As a result, this court can uphold the trial judge’s eligibility finding on appeal because a review of the evidence adduced at trial clearly establishes that any argument that defense counsel would have made regarding eligibility under section 9 — 1(b)(6) would have been refuted. Each of these factors, taken as a whole, compel the conclusion that the trial judge found the statutory factor to have been proved beyond a reasonable doubt and that defendant was not prejudiced in any way by counsel’s alleged ineffectiveness.
By limiting its analysis to only the jury’s general verdicts and omitting any discussion of the trial judge’s role as the trier of fact at this sentencing hearing, the majority seemingly holds that those verdicts alone serve to fulfill the elements of section 9 — 1(b)(6) beyond a reasonable doubt and, in turn, operate to defeat defendant’s claims of prejudice for purposes of Strickland. However, in cases where defense counsel has failed to subject the prosecution’s case to meaningful adversarial testing at the eligibility stage of sentencing, this court has, at least until today, relied equally upon both the jury’s guilt phase verdicts and the evidence of intent adduced at trial and heard by the trial judge. See Smith, 176 Ill. 2d at 232-33; People v. Shatner, 174 Ill. 2d 133, 151 (1996) (recognizing, in both cases, that the sentencing judge heard the evidence which on appeal was held to establish the requisite mens rea for a finding of death eligibility and to preclude a finding of prejudice). Consistent with this precedent, I believe that a more reasoned analysis in this case would likewise take into consideration the evidence heard by the trial judge during the course of the guilt phase of the proceedings, as it is this evidence which (i) actually supports the trial judge’s specific finding of eligibility made at sentencing and (ii) defeats defendant’s appellate assertions of prejudice.
In all other respects, I join in the majority’s opinion.