Long v. Com.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtJONES
Citation559 S.W.2d 482
PartiesElbert Phillip LONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date09 December 1977

Page 482

559 S.W.2d 482
Elbert Phillip LONG, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Supreme Court of Kentucky.
Dec. 9, 1977.

Page 483

Jack Emory Farley, Public Defender, Erwin W. Lewis, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Raymond M. Edelman, Asst. Atty. Gen., Frankfort, for appellee.

JONES, Justice.

On a jury trial, Elbert P. Long was found guilty of murder and attempted rape. In conformity with the jury's verdict, the trial court sentenced Elbert to life imprisonment on the murder conviction and five years' imprisonment on the conviction of attempted rape. The trial court ordered Elbert to serve the sentences consecutively. From that judgment, Elbert prosecutes this appeal.

There are other questions, but the principal issue presented for decision is whether Elbert made known to the trial court the specific grounds for his objection to the instructions during the trial.

In order that the issue be resolved, this court briefly summarizes the evidence upon which the jury made its determination.

On November 16, 1976, at approximately 9:40 A.M., Elbert went to the Owensboro-Daviess County Animal Shelter to "look at some dogs." Mrs. Connie White was in charge. Shortly after Elbert arrived at the shelter he led or pushed Connie at gun point into the bathroom with his left hand over her mouth and holding in his right hand a gun pointed against her ear. Elbert told Connie, "Just do as I say and everything will be alright." He then ordered Connie to take her clothes off. She took her jacket and jumpsuit off and "undid" her bra. At that point a truck arrived. Elbert ordered Connie to put her clothes on. He then went to the office and Connie followed him. The truck driver was William C. Damron, Jr., Connie's father, who was dog warden of Daviess County. Connie's demeanor and her conduct alerted Damron that something was wrong. He said to Connie, "What's the matter with you?" Subsequently, Connie took her father outside and told him of Elbert's attempted rape. Damron went to his truck and procured a .22 caliber pistol. He returned to the office. A struggle between Damron and Elbert took place in the doorway. Elbert shot Damron with a .38 caliber pistol, seized Damron's pistol and fled the scene. Shortly thereafter Damron died as a result of the gunshot wound.

Other testimony offered by the Commonwealth was that of the officers who made the investigation. Also, there was the testimony of two witnesses who had a brief glimpse of the struggle, and heard the shot.

At the close of the Commonwealth's case, Elbert's counsel moved for a directed verdict. The trial court overruled the motion and Elbert testified in his own behalf.

As the custom is in most rape cases, the victim seduces the defendant whose intentions are always as pure as the "driven snow." Thus, it was with Elbert. He stopped by the animal shelter to look at some dogs. He testified that Connie showed him some dogs and later propositioned him in this manner: ". . . and

Page 484

she came back there and she had kind of a smile and she said, 'You want more than to look at dogs, don't you?' I said 'No' and I left." Elbert testified that he saw Damron get a pistol from the truck, come back to the office and threaten to kill him. Elbert testified that when Damron "cocked" his gun he shot Damron, took his gun and fled.

The court now directs its attention to Elbert's argument that the trial court erred by placing improper qualifications upon his privilege of self-protection in its instruction to the jury. The record reveals that at the conclusion of all the evidence the trial court stated, "I have the instructions about ready . . . but I do want a chance to go over with the attorneys some things . . . ."

While court and counsel were in chambers and out...

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15 practice notes
  • Sand Hill Energy, Inc. v. Smith, No. 2000-SC-0444-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...so that they could not form the basis of a complaint regarding failure to give interrogatories[.]"); Long v. Commonwealth, Ky., 559 S.W.2d 482, 484-85 (1977) (where the defendant's tendered self defense instruction in a murder case included only the privilege to use physical force and did n......
  • Ray v. Commonwealth, 2019-SC-0164-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • October 29, 2020
    ...2009) ); Butler , 560 S.W.2d at 816 ; Hunter , 560 S.W.2d 808 at 809 ; and Helmes v. Commonwealth , 558 S.W.2d 162, 163 (Ky. 1977).41 559 S.W.2d 482, 483 (Ky. 1977).42 Id. at 485.43 Id. at 483-85.44 Bussell , 882 S.W.2d at 112.45 Id. at 114.46 Id.47 Id.48 80 S.W.3d 390, 393 (Ky. 2001).49 Id......
  • Bartley v. Commonwealth, No. 2011–SC–000683–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...an erroneous instruction does not preserve a post hoc claim that a different instruction might have been warranted. Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977) ( citingRCr 9.54 and noting that the tender of an erroneous instruction does not, as the rule requires, “fairly and adequately” ......
  • Alcorn v. Smith, No. 82-5623
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 9, 1986
    ...Carpenter v. Liebson, 683 F.2d 169, 170 (6th Cir.1982) (citing Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977); Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977)). Moreover, Kentucky's requirement is more demanding than the one implicitly approved in Jackson v. Virginia, which allowed defe......
  • Request a trial to view additional results
15 cases
  • Sand Hill Energy, Inc. v. Smith, No. 2000-SC-0444-DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...so that they could not form the basis of a complaint regarding failure to give interrogatories[.]"); Long v. Commonwealth, Ky., 559 S.W.2d 482, 484-85 (1977) (where the defendant's tendered self defense instruction in a murder case included only the privilege to use physical force and did n......
  • Ray v. Commonwealth, 2019-SC-0164-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • October 29, 2020
    ...2009) ); Butler , 560 S.W.2d at 816 ; Hunter , 560 S.W.2d 808 at 809 ; and Helmes v. Commonwealth , 558 S.W.2d 162, 163 (Ky. 1977).41 559 S.W.2d 482, 483 (Ky. 1977).42 Id. at 485.43 Id. at 483-85.44 Bussell , 882 S.W.2d at 112.45 Id. at 114.46 Id.47 Id.48 80 S.W.3d 390, 393 (Ky. 2001).49 Id......
  • Bartley v. Commonwealth, No. 2011–SC–000683–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 20, 2013
    ...an erroneous instruction does not preserve a post hoc claim that a different instruction might have been warranted. Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977) ( citingRCr 9.54 and noting that the tender of an erroneous instruction does not, as the rule requires, “fairly and adequately” ......
  • Alcorn v. Smith, No. 82-5623
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 9, 1986
    ...Carpenter v. Liebson, 683 F.2d 169, 170 (6th Cir.1982) (citing Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977); Long v. Commonwealth, 559 S.W.2d 482 (Ky.1977)). Moreover, Kentucky's requirement is more demanding than the one implicitly approved in Jackson v. Virginia, which allowed defe......
  • Request a trial to view additional results

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