Luther v. State

• Decision Date: 29 April 1986
• Docket Number: No. 43228,43228
• Citation: Luther v. State, 342 S.E.2d 316, 255 Ga. 706 (Ga. 1986)
• Parties: LUTHER v. The STATE.
• Court: Georgia Supreme Court

Page 316

342 S.E.2d 316

255 Ga. 706

LUTHER v. The STATE.

No. 43228.

Supreme Court of Georgia.

April 29, 1986.

Richard A. Epps, Bainbridge, for Donald Robert Luther.

J. Brown Moseley, Dist. Atty., Bainbridge, Michael J. Bowers, Atty. Gen., for the State.

MARSHALL, Chief Justice.

Donald Robert Luther, indicted and tried for murder, appeals from his conviction of voluntary manslaughter, for which he was sentenced to 20 years' imprisonment. ^* We affirm.

Evidence was adduced at the trial to the following effect. Pursuant to notification on the afternoon of June 6, 1985, the Decatur County Sheriff's Department investigated a remote boat landing on Lake Seminole, where they found the body of the victim, Don Yarley, an insurance salesman, kneeling face-down with his head on a picnic bench. The victim's pants pockets were turned inside-out; his hands were tied behind him with surgical tape; he was shot in the back of the head; there were footprints in the sand between the victim's legs; there was no sign of any struggle; no weapon was found; insurance ledgers and books were open on the picnic table; and a Tareyton cigarette pack was lying near the body. The cause of death was attributed to two small-caliber bullet wounds in the back of the head, with a maximum muzzle-to-wound distance of two inches.

A handwritten "will," signed by the victim and found in the glove compartment of his vehicle, included several bequests to family members from insurance proceeds, and a $10,000 bequest to the appellant. On the morning of the homicide, the appellant had been seen at Miles Bait & Tackle Store with the victim, who had "a pretty good size" roll of bills in his possession.

The appellant, questioned by investigators, related to them a discussion he had had with the victim about how to make a "pipe bomb," then he voluntarily led them to the victim's residence and pointed out to them the components of the homemade "pipe bomb," i.e., gunpowder, nails, drill, drill bit, and lead pipe. At this time, the officers observed a discarded Tareyton cigarette pack, uniquely folded, similar to the one found at the crime scene. The appellant was the only person developed in the investigation who smoked Tareyton cigarettes.

When confronted by some of the evidence developed in the investigation, the appellant gave a complete, taped statement, in which he admitted shooting the victim and hiding the victim's money in several immobilized cars in his yard. He claimed that Yarley had planned his own demise, and had asked the appellant to help him make it look like an armed robbery. He stated that he did not really want to kill Yarley, but that Yarley had told him that there was a man in the bushes who would kill him if he did not. The appellant never saw anyone, or heard anyone speak, but claimed to have seen the bushes move. No evidence was ever produced to corroborate the existence of the purported man in the bushes. The appellant then fled the scene in a boat (a footprint found in a boat appeared identical to the one found next to the victim's body), threw the homicide weapon in the lake, threw his shoes away, and hid the money at his residence. He later led investigating officers to the money, which was recovered, and one shoe, which was found.

1. The appellant attacks the constitutionality of OCGA § 16-3-26: "A person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury." (Emphasis supplied.) He contends that the trial court erred in charging the jury on this section as written because it arbitrarily excludes coercion as an affirmative defense to the charge of murder and violates his right to equal protection of the law.

"It is an established rule in Georgia that all presumptions are in favor of the constitutionality of an [A]ct of the legislature. Kirton v. Biggers, 232 Ga. 223 (206 SE2d 33) (1974); Mayes v. Daniel, 186 Ga. 345 (198 SE 535) (1938)." Culpepper v. Veal, 246 Ga. 563, 564, 272 S.E.2d 253 (1980). "The Criminal Law Study Committee's Notes on the enactment of [OCGA § 16-3-26] explain the addition to the former law, Code Ann. §§ 26-401 [OCGA § 16-1-3], 402, removing the defense of coercion to a charge of murder, as adopting the common[-]law approach that one should die himself before killing an innocent victim." Thomas v. State, 246 Ga. 484, 486, 272 S.E.2d 68 (1980). This court has followed prevailing common-law principles even when the statutory law has not specifically incorporated such principles. See Culpepper v. Veal, supra, 246 Ga. p. 564, 272 S.E.2d 253 and cits.

Contrary to the appellant's argument, the distinction between murder and other offenses is constitutionally permissive. "The denomination of certain crimes as capital felonies is an expression of our society's view that these crimes are more heinous than other classes of crimes, with murder being the most heinous of all capital felonies. It follows that defendants convicted of capital felonies, particularly murder, should be and are treated differently than defendant...