People v. Long

WOOD, P. J. Defendant was accused of murder. He admitted allegations of the information that he had been convicted previously of two felonies (assault with deadly weapon and robbery). In a jury trial he was found guilty as charged. He was sentenced to imprisonment for life. His notice of appeal will be regarded as an appeal from the judgment.

Appellant contends that the court erred in receiving evidence of his alleged confession, and erred in failing to give, upon its own motion, an instruction regarding the law as to diminished capacity.

On December 28, 1966, Harry Munroe was murdered at the house of Elaine Robertson, his common law wife, at 2076 East 114th Street in Los Angeles. His death was caused by a shotgun wound in the brain.

Elaine Robertson testified in substance as follows: On December 28, 1966, about 6 p.m., Harry was watching television at the house, and she was “upstairs.” She heard a knock on the front door, and heard Harry say, “Hey, man.” A male voice replied, “Hey,” and then she heard a shotgun blast. She ran downstairs and saw Harry lying on the floor about % foot from the front door. A hole was in his head, and he appeared to be dead. The front door was open and she looked outside, but it was dark and she did not see anyone. In [542]the morning of that day, Harry had come into the house with a gun (Exhibit 2, .38 caliber revolver). She had never seen him carry a gun before. About 2:30 o’clock in the afternoon óf that day, she saw a man standing outside a car which was parked about a half-block from the apartment. The man, who vías wearing a green, three-quarter-length jacket (Exhibit 6), resembled the defendant.

Officer Williams testified that on December 28, 1966, about 6 p.m., he went to the apartment at 2076 East 114th Street; a male Negro (Munroe), who was dead, was on the floor; six .38 caliber cartridges were in his possession; Munroe’s automobile was parked in front of the apartment; Officer Thomas searched the automobile and found a .38 caliber revolver (Exhibit 2) under the front seat.

Officer Larson testified in substance as follows: On December 28, 1966, about 11:20 p.m., he and Officer Eiley arrested defendant Long at his residence. When defendant was arrested, he was advised that he had a right to remain silent, a right to an attorney, that if he could not afford an attorney one would be appointed for him, and that anything he said could be used against him in court. Defendant said that he knew his rights. Thereafter the defendant did not ask for an attorney. At the time of the arrest, the defendant was standing, walked naturally, did not stagger, spoke clearly, and talked to his wife. Defendant had been drinking, but he was not drunk, and did not appear to be under the influence of anything, or to be “loaded” on pills or whisky. Defendant made a statement that he did not know anything about the shooting in Watts, and that he had been home all day. About 9 a.m. on December 29 (about 9 hours after arrest), when he (officer) saw defendant again, he asked defendant whether he had had breakfast. Defendant replied that “they brought it but he couldn’t eat that slop.” At 5 :30p.m. on December 29 (about 18 hours after arrest), he and Officer Eiley had another conversation with defendant. They did not advise him again of his rights. The conversation was recorded, and the recording is an accurate reflection of the conversation. (The recording was received in evidence and played in the presence of the jury.)1 During the conversation, defendant (according to Officer Larson’s testimony) said that he had spent the night prior to the murder at a motel with Barbara, Brenda, and Slim (Munroe); when he awakened, someone had stolen