Leatherwood v. State

For the Court:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, wherein the appellant, Michael Dale Leatherwood, pled guilty to the capital murder of Albert Taylor and was thereafter sentenced to suffer death upon a jury verdict so finding.

On Friday, August 22, 1980, Jerry Fuson, George Tokman, and the appellant Leather-wood left Fort Polk, Louisiana, for Jackson, Mississippi, in the appellant’s car to pick up Fuson’s car which had been left in Jackson a week earlier. Fuson agreed to pay all expenses in return for the appellant driving him to Jackson. After they retrieved the car, Fuson revealed that he had only ten dollars for gas money for the two cars to return to Fort Polk, which was insufficient. After being turned away by a military agency for soldiers stranded while on leave, the trio realized that they were in a strange city without enough money for their return trip.

George Tokman devised a scheme to rob a cab driver and Fuson helped plan the details “like a military operation.” When the first cab answered the call, Tokman ignored the driver because he felt the driver was too young and strong. After a second call, the unfortunate victim, sixty-five year old Albert Taylor arrived and the trio entered the cab and Tokman gave Taylor an address. When the cab reached the address, Tokman requested the victim to turn off his lights because “he didn’t want his parents to know he was coming in late.” At this point appellant Leatherwood slipped a rope around the victim’s neck in order to subdue him. As the appellant tightened the rope, the victim was either pulled or started crawling over the backseat. An autopsy report later showed that the victim’s death was caused by intercranial bleeding suffered from blows to the head. There was conflicting testimony as to whether Leath-erwood told Tokman to “stab him.” Tok-man stabbed the victim three times in the head.

After driving the cab to a darkened alley behind a North Jackson shopping center, the trio robbed the victim of his wallet, two money bags, a flashlight, and a pistol. Later they returned to the scene of the crime after discovering that the appellant had left his barricks’ keys in the cab.

The trio netted approximately $11.00 in cash from the robbery and left Jackson early Sunday morning. Tokman cut his hand while stabbing the victim, so they stopped at a hospital in Vicksburg for medical treatment. While Tokman was in the emergency room, Leatherwood and Fuson stole a man’s wallet after surreptitiously gaining entry to his home and later used the victim’s credit card for gas.

Thereafter, Leatherwood and Tokman committed two robberies of Louisiana merchants within the next five days. Leather-wood was subsequently tried and convicted for simple and armed robbery in Louisiana before his Mississippi capital murder trial.

Leatherwood pled guilty to capital murder but, among other things, argued to the sentencing jury, which was impaneled to consider whether he should be sentenced to life imprisonment or suffer death, that he was under the substantial domination of George Tokman at the time of the rob-' bery/murder and should not be executed.

The jury returned the death penalty after deliberating for one and one-half hours and found the following aggravating circumstances in accordance with Mississippi Code Annotated section 99-19-101 (Supp.1982):

(1) The capital murder was committed while the appellant was engaged in the commission of a robbery;

(2) The capital murder was committed for pecuniary gain;

(3) The capital murder was especially heinous, atrocious or cruel; and

(4) The capital murder was for the purpose of avoiding a lawful arrest.

On appeal, the appellant raises eleven assignments of error for this Court’s review.

PROPOSITION I.

DID THE LOWER COURT ERR IN ALLOWING THE JURY TO CONSIDER THAT THE CAPITAL OFFENSE WAS COMMITTED WHILE THE APPELLANT WAS ENGAGED IN THE COMMISSION OF A ROBBERY, AND THAT THE CAPITAL OFFENSE WAS COMMITTED FOR PECUNIARY GAIN; IN THAT THIS PRACTICE AMOUNTS TO AN IMPROPER “DOUBLING UP” OF AGGRAVATING CIRCUMSTANCES WHICH LEADS TO AN INCONSISTENT AND UNEVEN-HANDED INFLIC- ■ TION OF THE DEATH PENALTY?

The State of Mississippi presented evidence of several aggravating circumstances as enumerated in Mississippi Code Annotated section 99-19-101(5) (Supp.1982); including the fact that the capital offense was committed while the appellant was engaged in the commission of a robbery [subsection (d)] and that the capital offense was committed for pecuniary gain [subsection (f) ]. The trial court allowed this evidence and through its instructions to the jury specifically allowed the jury to consider those two aggravating circumstances along with others. The jury found these two specific aggravating circumstances along with two others.

Appellant contends that allowing the jury to consider subsections (d) and (f) as two separate aggravating circumstances amount to what has been commonly referred to as “doubling up” or unfairly using those two circumstances as separate circumstances when in fact they both refer to the same aspect of the crime of robbery/murder. He asserts that all defendants accused of robbery/murder start the sentencing proceeding with two aggravating circumstances already on the scales of justice weighing against them, as opposed to other types of felony/murders; and that robbery/murder death penalty sentences are rendered in an inconsistent and uneven-handed manner to those death penalty sentences involving other felony/murders.

The Florida Supreme Court, when confronted with the doubling up problem in robbery/murders said:

The State argues the existence of two aggravating circumstances, that the murder occurred in the commission of the robbery [subsection (d)] and that the crime was committed for pecuniary gain [subsection (f)]. While we would agree that in some cases, such as where a larceny is committed in the course of a rape-murder, subsections (d) and (f) refer to separate analytical concepts and can validly be considered to constitute two circumstances, here, as in all robbery-murders, both subsections refer to the same aspect of the defendant’s crime. Consequently, one who commits a capital crime in the course of a robbery will always begin with two aggravating circumstances against him while those who commit such a crime in the course of any other enumerated felony will not be similarly disadvantaged. Mindful that our decision in death penalty cases must result from more than a simple summing of aggravating and mitigating circumstances, [citation omitted], we believe that Provence’s pecuniary motive at the time of the murder constitutes only one factor which we must consider in this case. (Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977)).

However, in Smith v. State, 419 So.2d 563 (Miss.1982), the same argument was made as is made in the case sub judice, without using the phrase “doubling up”, there, this Court said:

Instruction number S-4 allowed the jury to find from the evidence the following aggravating circumstances if any:

1. The capital murder was committed while the defendant was engaged in the commission of robbery;

2. The capital murder was committed for pecuniary gain;

3. The capital murder was especially heinous, atrocious or cruel.

The defendant’s position is that the inclusion of the second enumerated aggravating circumstance, i.e., that the capital murder was committed for pecuniary gain, renders the allowance of this instruction reversible error for reason that the same burdened him with “the necessity of overcoming two aggravating circumstances” when he had been “charged with a murder during the course of a single felony.” When the Court along with counsel was considering state’s instruction number S-4, the following is excerpted from the record:

BY MR. GREGG:

If the Court please, for purposes of the record, I would object to it because I don’t think that has been proven beyond a reasonable doubt. I just make that for record purposes.

Obviously the defense objection made a the trial level was not on the same ground here argued, and ordinarily cannot on appeal be ground for reversal upon a different ground from that asserted below. Daumer v. State, 381 So.2d 1014 (Miss.1980). Nevertheless, we have specifically upheld the instruction now attacked, and we can find no merit to the present argument. Voyles v. State, 362 So.2d 1236 (Miss.1978); Bell v. State, 360 So.2d 1206 (Miss.1978). (419 So.2d at 568). (Emphasis added).

Leatherwood did not object to court’s instruction 2 at trial when the court was considering the instructions on the ground that it permitted a “doubling up” of aggravating circumstances as now urged. He did not assert the present theory until after the jury verdict was in and he had filed a motion for a new trial.

This came too late. To hold otherwise would allow the trial court to be sandbagged by skillful defense attorneys thus assuring their client a second trial in the event of a death verdict.

In cases where we feel that the asserted error has merit and that it unduly prejudiced the appellant, we may raise it as an apparent error on the face of the record of the Court’s own motion. Irving v. State, 361 So.2d 1360, 1363 (Miss.1978). However, we are not required to do so by court rule or under section 99-19-105 (Supp.1982) as claimed by the appellant. In this case we are not so persuaded and do not so move. This is consistent with prior holdings where the jury verdict was allowed to stand and similar instructions were approved. Smith v. State, 419 So.2d 563 (Miss.1982); Voyles v. State, 362 So.2d 1236 (Miss.1978); and Bell v. State, 360 So.2d 1206 (Miss.1978).

PROPOSITION II.

DID THE LOWER COURT ERR IN ALLOWING THE JURY TO CONSIDER THAT THE CAPITAL OFFENSE WAS COMMITTED WHILE THE APPELLANT WAS ENGAGED IN THE COMMISSION OF A ROBBERY, IN THAT THIS PRACTICE IS IMPROPER AND LEADS TO AN INCONSISTENT AND UNEVEN-HANDED INFLICTION OF THE DEATH PENALTY?

The appellant contends that it was improper to allow the jury to consider as an aggravating circumstance, that the capital offense was committed while the defendant was engaged in the commission of a robbery. (Mississippi Code Annotated section 99-19 — 101(5)(d) (Supp.1982)).

He reasons that since robbery is an element of capital murder, that it should not also be used as an aggravating circumstance as permitted under Mississippi Code Annotated section 97-3-19 (Supp.1982). The appellant suggests that this causes him to begin the sentencing stage with one aggravating circumstance against him and thus starts at a disadvantage rather than with a clean slate. He argues that the weighing process is already stacked against him before he even gets up to offer anything in mitigation; and that this practice brings us precariously close to the old ways of mandatory, arbitrary statutes condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

We do not agree with the appellant’s contention. Under our capital murder statute, when an accused is found guilty of capital murder arising out of a robbery, he then becomes subject to a jury finding that he should be executed if the jury feels that the facts justify it. However, his execution is not mandated and the jury may properly find that he should be sentenced to life in prison. They may so find whether the defendant puts on any evidence of mitigating circumstances or not. This is a far cry from the old statute which mandated execution upon conviction of a capital offense.

The appellant’s argument that he enters into the sentencing phase of the bifurcated trial with one strike against him is correct in one sense — i.e., if he had not been convicted of a capital offense, there would be no need for the sentencing hearing and he would simply be sentenced to serve a life term. This does not mean though that the procedure is unfair or faulty.

At the sentencing hearing appellant may put on evidence of mitigating circumstances of an unlimited nature pursuant to section 99-19-101(6) (Supp.1982) and Washington v. State, 361 So.2d 61 (Miss.1978), so as to convince the jury that he should not be executed.

We are of the opinion that this assignment of error has no merit.

PROPOSITION III.

DID THE LOWER COURT ERR IN ALLOWING THE JURY TO CONSIDER THAT THE CAPITAL OFFENSE WAS COMMITTED FOR THE PURPOSE OF AVOIDING A LAWFUL ARREST?

The State of Mississippi contended that the aggravating circumstance enumerated in Mississippi Code Annotated section 99-19-101(5)(e) (Supp.1982), was present in this case. Subsection (5)(e) states:

The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

The appellant now argues that the trial court, through its instructions, erroneously allowed the jury to consider the circumstance. The jury found that specific circumstance to exist.

The appellant maintains that there was no evidentiary basis for the finding of that circumstance and it thus impaired the fair and nonbiased weighing of the aggravating and mitigating circumstances in this case.

Florida, which has the same aggravating circumstance, F.S.A. § 921.141(5)(e) (Supp. 1982), has interpreted it to mean that:

... an intent to avoid arrest is not present, at least when the victim is not a law enforcement officer, unless it is clearly shown that the dominant or only motive for the murder was the elimination of witnesses. (Menendez v. State, 368 So.2d 1278, 1282 (Fla.1979)).

In Menendez, a defendant was convicted and sentenced to death for murdering a jewelry store owner while he was robbing it. The Florida Supreme Court affirmed his murder conviction but vacated his death sentence and remanded the case for resen-tencing by the trial court. The Florida court based its ruling in part upon the improper finding that the murder was committed for the purpose of avoiding a lawful arrest.

Appellant argues that under the State’s theory of the case every murder during a felony could be characterized as an attempt to avoid a lawful arrest thus causing another automatic cumulation of aggravating circumstances which would unfairly influence the weighing process by the jury and cause inconsistent and uneven-handed infliction of the death penalty.

In our opinion, the Florida interpretation is too restrictive. Each case must be decided on its on peculiar fact situation. If there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to “cover their tracks” so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance.

The court properly instructed the jury under the facts of this case in this regard because there was testimony by Fu-son that there was a discussion between Tokman and Leatherwood during the planning stage of the robbery that they would leave no witnesses.

Therefore, this assignment is without merit.

PROPOSITION IV.

DID THE LOWER COURT ERR IN OVERRULING THE APPELLANT’S OBJECTION TO THE ADMISSION OF THE TWO LOUISIANA CONVICTIONS OF THE APPELLANT FOR ARMED ROBBERY AND SIMPLE ROBBERY?

At the sentencing hearing, the State was allowed to introduce, over defense objection, two prior convictions of the appellant for armed robbery and simple robbery from the State of Louisiana. The purpose was to show the existence of an aggravating circumstance—that the defendant was previously convicted of another felony involving the use or threat of violence to the person. Miss.Code Ann. § 99-19-101(5)(b) (Supp.1982).

The appellant maintains that this was improper as the crimes and the underlying convictions therefore, were subsequent to the murder for which the appellant was being sentenced.

This Court has ruled that “previously” means previous “to the time of the trial, so that a conviction between the time the capital offense was committed and the time of trial for it may be admitted into evidence as an aggravating circumstance.” Jones v. State, 381 So.2d 983, 994 (Miss.1980); Reddix v. State, 381 So.2d 999 (Miss.1980). Appellant contends that the opinions in those cases are not clear as to whether the conviction’s underlying crime was committed previous to the capital offense, or subsequent to it, and that point is significant. He points out that in the case sub judice, the crimes which resulted in the Louisiana convictions occurred after the capital offense in Jackson and that prior to the capital offense, the appellant had never been in any serious trouble.

We are not impressed by this argument. Crimes committed by a defendant after having committed a capital offense have just as much or more bearing on the question of his character, criminal tendencies, and whether he should suffer the death penalty, as do crimes committed by him prior to having committed the capital offense. Therefore, this assignment is without merit.

PROPOSITION V.

WAS THE SENTENCE OF DEATH RETURNED BY THE JURY EXCESSIVE OR DISPROPORTIONATE TO THE PENALTY IMPOSED IN SIMILAR CASES, CONSIDERING BOTH THE CRIME AND THE DEFENDANT, AND WAS PROSECUTORIAL DISCRETION ABUSED, THUS VIOLATING THE APPELLANT’S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES?

Appellant asserts that “The sentence received ... here is not only disproportionate and excessive in comparison with his coparticipants, but also in comparison with other cases, including Culberson [v. State, 379 So.2d 499 (Miss.1979) ].... in Culber-son, Pittman, who was an accomplice yet who did not fire the fatal shot, was permitted to plead guilty to manslaughter for which be received fifteen years. Culberson received the death penalty. Here, Tokman, who inflicted the death blow, received the death penalty, and Fuson, an accomplice was, like Pittman, allowed to plead guilty to manslaughter, and received twenty years. But the appellant, an accomplice who like Pittman did not inflict the death blow, was ... sentenced to death. This result is obviously disproportionate to and more excessive than the result in Culberson.”

The appellant overlooks the testimony that Leatherwood and Tokman planned not to leave any witnesses and that during the robbery Leatherwood told Tokman to “stab” Taylor, the cab driver. Moreover, there is ample evidence that Leatherwood was attempting to strangle Taylor to death with the nylon rope.

As to the charge of abuse of prose-cutorial discretion in that the accomplice Fuson was allowed to plead to manslaughter and receive a sentence of twenty years, we find no abuse of discretion. Prosecutors must be given wide latitude in allowing an accomplice to plead to lesser offenses in exchange for their cooperation in the prosecution of other participants to a crime. Culberson v. State, 379 So.2d at 510 (Miss.1979).

PROPOSITION VI.

DID THE LOWER COURT ERR IN OVERRULING THE OBJECTIONS TO AND SUBSEQUENT MOTIONS FOR MISTRIAL BASED ON THE ADMISSION OF TESTIMONY CONCERNING OTHER CRIMES OF THE APPELLANT FOR WHICH HE HAD NOT BEEN CONVICTED?

The appellant contends that the trial court’s overruling his objection to the State’s questions on cross-examination of him with regard to crimes for which he had not been convicted was error in that they fail to fall within any of the exceptions enumerated in Gray v. State, 351 So.2d 1342, 1345 (Miss.1977). Gray outlines the general rule in Mississippi regarding the admission of unindicted crimes against a defendant:

It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See, Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970).

The appellant argues that allowing questions concerning these two crimes committed in Vicksburg (the theft of a man’s wallet and the charging of gas on the murder victim’s credit cards) after the robbery/murder had been committed in Jackson was error because neither crime established a continuous transaction, motive, a common plan or scheme, the appellant’s identity or guilty knowledge. Consequently, the appellant contends they only served to inflame and prejudice the jury.

At trial, the appellant attempted to establish through his own testimony, that he was under the “substantial domination of another person” (Tokman) and this should serve to mitigate his involvement in the robbery/murder of Albert Taylor. Leath-erwood testified initially that every crime he was involved with in Mississippi and Louisiana was committed because he was scared into it by George Tokman. The State attempted to rebut Leatherwood’s testimony by showing that while Tokman was in the Vicksburg Hospital receiving medical treatment for a knife wound suffered during the robbery/murder, that Leatherwood could have called the police or at least left Tokman in Vicksburg. Instead, Leatherwood and Fuson committed the other two crimes. (Leatherwood and Fuson were never indicted or tried for these crimes). The State contends that this proves Leatherwood’s criminal intent and state of mind and rebuts any argument that Leatherwood was under the substantial domination of George Tokman. We have stated in the past that ordinarily, in a criminal prosecution, evidence of offenses other than charged in the indictment are not admissible. However, there are exceptions to this rule, such as when the defendant opens the door or otherwise invites the State’s reference to the crimes as was done in the case sub judice.

We are of the opinion that the appellant opened the door and invited reference to the Vicksburg crimes by his testimony during the sentencing hearing to the effect that he was substantially dominated by Tokman and that this fact should be considered in mitigation by the jury. Appellant admitted on cross-examination that the two Vicksburg crimes for which he was never convicted were committed by Fuson and himself while Tokman was being treated at the Vicksburg Hospital and perpetrated without Tokman’s knowledge. It was therefore proper during the sentencing hearing for the State to cross-examine the appellant Leatherwood with reference to the two occasions for the purpose of rebutting Leatherwood’s claim, and the court did not err in overruling appellant’s objections to the questions with reference to them.

Secondly, the appellant argues that a mistrial should have been granted because Jeffrey Booth, an army buddy of the appellant’s, testified that Leatherwood and Tok-man discussed that they would have to kill Fuson because “If he gets caught, he will talk.” The appellant contends that the above mentioned statement suggests a conspiracy to commit murder which is a separate offense and therefore inadmissible because it could only serve to prejudice and inflame the jury. In our opinion this testimony was admissible for the purpose of showing that Leatherwood not only lacked remorse for his participation in the killing of the cab driver but that he was willing to kill again for the purpose of covering up the original slaying. The jury had the right to consider this evidence in deciding his punishment and the court did not err in its admission into evidence.

PROPOSITION VII.

DID THE LOWER COURT ERR IN DENYING THE APPELLANT’S MOTION TO QUASH THE JURY PANEL ON THE GROUNDS THAT MISSISSIPPI STATUTORY LAW SYSTEMATICALLY EXCLUDES FROM THE VENIRE THOSE REGISTERED VOTERS BETWEEN THE AGES OF EIGHTEEN (18) AND TWENTY (20) YEARS OLD INCLUSIVE?

This assignment of error is without merit. Mississippi Code Annotated section 13-5-1 (1972) which excludes citizens under the age of twenty-one years has been upheld in Joyce v. State, 327 So.2d 255 (Miss. 1976) and Johnson v. State, 260 So.2d 436 (Miss.1972).

PROPOSITION VIII.

DID THE LOWER COURT ERR IN DENYING THE APPELLANT’S CHALLENGE FOR CAUSE AGAINST TWO VENIREMEN ON THE GROUNDS THAT THEY FAVORED THE DEATH PENALTY?

The two veniremen, Robert Nations and Mary Garrett, indicated that they had strong views in favor of the death penalty. After the court overruled appellant’s challenge to the jurors, appellant used two of his peremptory challenges to strike them.

We have carefully considered the questions propounded to and responses of Nations and Garrett and are of the opinion that the trial court’s ruling was in full compliance with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). When questioned by counsel both jurors said that they could put aside their personal feelings, follow the law and instructions of the court and return a verdict based solely upon the law and the evidence and not vote for the death penalty unless the evidence warranted it.

PROPOSITION IX.

DID THE LOWER COURT ERR IN ADMITTING THE ROPE OFFERED BY THE STATE, OVER THE OBJECTION OF APPELLANT’S COUNSEL AND IN ALLOWING THE ROPE DEMONSTRATION WITH THE APPELLANT?

The appellant notes that under Coleman v. State, 378 So.2d 640 (Miss.1979), the State is limited to presenting evidence during the sentencing phase which is relevant to one or more of the eight enumerated aggravating circumstances outlined in Mississippi Code Annotated section 99-19-101(5) (Supp.1982). Consequently, the appellant fails to see how the admission of the rope into evidence could be relevant to any of the eight aggravating circumstances. The appellant also argues that the State’s in-court demonstration by the appellant showing the jury how he used the rope to subdue the driver, was calculated solely for the purpose of prejudicing and inflaming the jury.

We do not agree with the appellant’s application of the law as announced in Cul-berson to the facts of this case. Jerry Fuson testified that Exhibit 12 (rope) was the rope that Mike Leatherwood used to “strangle” the cab driver, thus, its admission into evidence was not only proper, but relevant to the manner in which the robbery occurred.

In our opinion the demonstration before the jury of the appellant’s use of the rope was relevant to the question of whether the killing was done in an “especially heinous, atrocious or cruel manner.” Jerry Fuson testified that Leatherwood “threw the rope around his neck and jerked him up and halfway over into the backseat” and held the rope around the victim’s neck for several minutes. Fuson also testified that the victim still had a pulse, but Leatherwood held the rope tight declaring that nobody could have lived through having that kind of jolt to his neck. It was within the jury’s province to find this aggravating circumstance as instructed by the court and the appellant’s demonstration was not prejudicial. Further, we note our recent ruling in Hezekiah Edwards v. State (Miss.1983) (No. 53,800, decided 1983), that the terms “especially heinous, atrocious and cruel,” Mississippi Code Annotated section 99-19-101(5)(h) (Supp.1982), are proper without further definition for a jury and constitutional in light of the plurality opinion in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). See also Washington v. State, 361 So.2d 61 (Miss.1978).

PROPOSITION X.

DID THE LOWER COURT ERR IN ADMITTING CERTAIN PHOTOGRAPHS OFFERED BY THE STATE OVER THE OBJECTIONS OF THE APPELLANT’S COUNSEL?

The appellant again relies on Coleman to show the limitations of presenting evidence during the sentencing phase which must be relevant to one of the eight aggravating circumstances of Mississippi Code Annotated section 99-19-101(5) (Supp. 1982). The appellant contends that since he pled guilty to the robbery/murder that any of the pictures of the victim are cumulative and prejudicial because the victim’s death is not in question.

We have repeatedly held that the competency, relevancy and materiality of photographs are solely within the discretion of the trial judge who will determine their evidentiary purpose and value. See Bullock v. State, 391 So.2d 601 (Miss.1981); Reddix v. State, 381 So.2d 999 (Miss.1980); Voyles v. State, 362 So.2d 1236 (Miss.1978).

We note especially our rule in Coleman, 378 So.2d at 648-49 (Coleman was affirmed on the guilt phase but reversed and remanded for a life sentence) where we stated on this same question:

The two pictures complained of were color photographs showing where the shotgun pellets hit the victim on the right side of his head, his lower right arm, and on the left side of his chest.

The trial court’s ruling was that the state was entitled to introduce these two pictures to support its burden of proving that the offense was “especially heinous, atrocious or cruel.” The trial court also granted a jury instruction, over defense objections, that the jury could consider the aggravating circumstance that the offense was especially heinous, atrocious or cruel.

The admission of the two pictures on this basis was not error, as they had some probative value along this line of reasoning.

We find that the pictures were relevant as to whether the crime was “especially heinous, atrocious or cruel” and whether the murder was committed during the course of an armed robbery. There is no merit in the appellant’s argument.

PROPOSITION XI.

IS THE IMPOSITION OF THE DEATH PENALTY IN THIS CASE, UPON ONE WHO NEITHER TOOK LIFE, ATTEMPTED TO TAKE LIFE, NOR INTENDED TO TAKE LIFE, INCONSISTENT AND IMPERMISSIBLE UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION?

The appellant’s last assignment of error is based on the argument that the rendering of the death penalty for a murder he did not commit nor attempt to commit, nor intended to commit, is inconsistent with the Eighth and Fourteenth Amendments of the United States Constitution. The appellant’s argument is based on the recent United States Supreme Court decision of Enmund v. Florida,-U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) wherein the Court held that the death penalty may not be imposed upon a “non-triggerman” unless there is proof that the defendant killed, attempted to kill, or intended to kill the victim. In Enmund, the Court reversed a decision of the Florida Supreme Court which upheld the death penalty for En-mund who had been indicted for the first degree murder and robbery of an elderly couple who were known to carry large amounts of cash.

The Florida Supreme Court and the United States Supreme Court each recounted slightly differing versions of the facts with the central difference being outlined in a footnote to the opinion:

The Florida Supreme Court’s understanding of the evidence differed sharply from that of the trial court with respect to the degree of Enmund’s participation. In its sentencing findings, the trial court concluded that Enmund was a major participant in the robbery because he planned the robbery in advance and himself shot the Kerseys. [Enmund v. State] 399 So.2d, [1362] at 1372. Both of these findings, as we understand it, were rejected by the Florida Supreme Court’s holding that the only supportable inference with respect to Enmund’s participation was that he drove the getaway car. The dissent, while conceding that this holding negated the finding that Enmund was one of the triggermen, argues that the trial court’s finding that Enmund planned the robbery was implicitly affirmed. Post, at [3374]. As we have said, we disagree with that view. In any event, the question is irrelevant to the constitutional issue before us, since the Florida Supreme Court held that driving the escape car was enough to warrant conviction and the death penalty, whether or not Enmund intended that life be taken or anticipated that lethal force would be used. (-U.S. at-n. 2, 102 S.Ct. at 3371 n. 2, 73 L.Ed.2d at 1145 n. 2 (1982)).

However, we find that the case sub judice does not fall within the holding of Enmund. Enmund did not participate in the actual robbery nor was he present when the murder was committed — he was waiting in the getaway car. Michael Leatherwood, like Enmund, participated in the planning of the crime. The difference is that Leatherwood was also present and involved in the execution of the robbery/murder of Albert Taylor by throwing a rope over his head and pulling it tight with such force that the victim was jerked into the backseat. Leatherwood held the rope tight and told Tokman to “stab him” even as the victim was being subdued.

Though Leatherwood testified he never believed the robbery would be carried out and certainly never intended to kill the victim, this Court cannot believe that one who attempts to strangle his victim into submission to the point of unconsciousness and tells his accomplice to “stab him” does not intend to or attempt to kill. The appellant’s actions spoke louder than his words.

Though Michael Leatherwood was not the “triggerman”, he planned, schemed, and ultimately physically subdued the victim by choking him with a rope, while another stabbed and bludgeoned the victim to death. These are hardly the facts upon which Enmund was decided by the United States Supreme Court and thus we find that the appellant’s argument is not persuasive, and we find no merit in this assignment of error.

We have reviewed the record and compared it with all of our decisions subsequent to Jackson v. State, 337 So.2d 1242 (Miss.1976) involving the death penalty. Some have been affirmed and some reversed. After such comparison, we conclude that the death penalty here is not excessive in the light of the aggravating and mitigating circumstances. We further find that the infliction of the death penalty on Michael Dale Leatherwood is not disproportionate, wanton or freakish when compared to cases involving similar crimes, the facts surrounding them and the defendants.

We also find that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factors, and, that the evidence overwhelmingly supports the jury’s finding of statute-ry circumstances in that the capital murder was committed while the defendant was engaged in the commission of the crime of robbery, that the defendant committed the capital murder in an especially heinous, atrocious and cruel manner. The capital murder was committed for pecuniary gain and was committed for the purpose of avoiding a lawful arrest. The execution of Leatherwood will be consistent and evenhanded in the light of all post Jackson death penalty cases considered by this Court.

The judgment of the lower court is affirmed and Wednesday, July 13, 1983, is set as the date for execution of the sentence and infliction of the death penalty in the manner provided by law.

WALKER, P.J., PATTERSON, C.J., BROOM, P.J., and ROY NOBLE LEE, BOWLING and PRATHER, JJ., concur.

HAWKINS and DAN M. LEE, JJ., dissent.

ROBERTSON, J., dissents.

HAWKINS, J., specially concurring to Justice ROBERTSON’S dissent.

APPENDIX “A”

DEATH CASES AFFIRMED BY THIS COURT:

Pruett v. State, 431 So.2d 1101 (Miss.1983) (No. 54,000, handed down February 23, 1983).

Gilliard v. State, 428 So.2d 576 (Miss.1983).

Evans v. State, 422 So.2d 737 (Miss.1982).

King v. State, 421 So.2d 1009 (Miss.1982).

Wheat v. State, 420 So.2d 229 (Miss.1982).

Smith v. State, 419 So.2d 563 (Miss.1982).

Edwards v. State, 413 So.2d 1007 (Miss.1982).

Johnson v. State, 416 So.2d 383 (Miss.1982).

Bullock v. State, 391 So.2d 601 (Miss.1980).

Reddix v. State, 381 So.2d 999 (Miss.1980).

Jones v. State, 381 So.2d 983 (Miss.1980).

Culberson v. State, 379 So.2d 499 (Miss.1979).

Gray v. State, 375 So.2d 994 (Miss.1979).

Jordan v. State, 365 So.2d 1198 (Miss.1978).

Voyles v. State, 362 So.2d 1236 (Miss.1978).

Irving v. State, 361 So.2d 1360 (Miss.1978).

Washington v. State, 361 So.2d 61 (Miss.1978).

Bell v. State, 360 So.2d 1206 (Miss.1978).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RE-SENTENCING TO LIFE IMPRISONMENT:

Hezekiah Edwards v. State, (Miss.1983)

(No. 53,800, handed down March 16, 1983).

Coleman v. State, 378 So.2d 640 (Miss.1979).

. George Tokman pled not guilty to the capital murder of Albert Taylor and was convicted and sentenced to death. Jerry Fuson pled guilty to manslaughter with a twenty-year recommendation by the district attorney’s office in return for his testimony against Tokman and Leather-wood,

. Mississippi Code Annotated section 99-19-101(6)(e) provides as a mitigating circumstance that “The defendant acted under extreme duress or under the substantial domination of another person.”

. Mississippi Code Annotated section 99-19-101(6)(e) (Supp.1982) states that the defendant acted under extreme duress or under the substantial domination of another person.

. Leatherwood testified that he. felt remorse from the day the killing occurred.

. See Appendix “A”.