WALKER, PRESIDING JUSTICE, 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 Leatherwood 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 Leatherwood told Tokman to" stab him. "Tokman 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. Leatherwood was subsequently tried and convicted for simple and armed robbery in Louisiana before his Mississippi capital murder trial. *fn1
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 *fn2 of George Tokman at the time of the robbery/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.
DID THE LOWER COURT ERR INN 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 CIRCUMISTANCES WHICH LEADS TO AN INCONSISTENT AND UNEVEN-HANDED INFLICTION 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 circumstances 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. L 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).
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 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. ...