dissenting.
I respectfully dissent from the majority opinion's conclusion that the death penalty should be set aside.
As stated in the majority opinion under the heading "D. Charging Errors," the evidence clearly shows that the victim was kidnapped and murdered in order that Kennedy and Jackson could use her car in the commission of a robbery. The trial court was thoroughly justified in deducing from the evidence that throughout the entire episode, including the kidnapping of the victim, Kennedy and Jackson were acting in concert, and their intention from the inception of the crime was to kill the victim. Under these circumstances, I think it is immaterial as to which one inflicted the fatal injury, although the evidence in this case does not exclude either as the actual killer.
The Supreme Court of the United States has stated several times that. the death penalty may be invoked where the defendant was a major participant in the felony and acted with reckless indifference to human life. See Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. I can attach no significance to the fact that the prosecutor argued during the prosecution of Kennedy that he in fact was the triggerman.
Because Jackson participated throughout the entire episode, I would affirm the trial court's imposition of the death penalty. I concur with the majority opinion in all other respects.