Long v. Com.

• Decision Date: 09 December 1977
• Citation: 559 S.W.2d 482
• Parties: Elbert Phillip LONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 482

559 S.W.2d 482

Elbert Phillip LONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Dec. 9, 1977.

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 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 of the hearing of the jury Elbert's counsel stated, "I would like to tender the self-defense instruction." In response the court said, "Let the record show that no one has any objections to the instructions given except insofar as on behalf of the defendant (Elbert) as the court refuses to give the defendant's Instruction I." Elbert's tendered instruction is as follows:

"If at the time the defendant shot William C. Damron as mentioned in Instruction I he believed that William C. Damron was then and there about to use physical force upon him, he was privileged to use such physical force against William C. Damron as he believed to be necessary in order to protect himself from it.

'Physical force' means force used upon or directed toward the body of another person."

Elbert concedes that his tendered instruction was not proper in that it instructed only as to the privilege to use physical force. It appears to this court that Elbert's tendered instruction on self-protection is copied verbatim from Palmore, Kentucky Instructions to Juries, Sec. 10.01. That instruction deals with the use of non-deadly force. The defense of self-protection is defined in KRS 503.050, which distinguishes deadly force and non-deadly force. Under the facts of this case, where both Elbert and Damron were armed with pistols and engaged in an apparent "shoot-out," then the self-protection instruction given by the trial court was in compliance with the definition of self-protection...