Alderson v. State
| Decision Date | 11 September 1974 |
| Docket Number | No. 973S177,973S177 |
| Court | Indiana Supreme Court |
| Parties | James Lee ALDERSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Jerry P. Baugh, Baugh, & Baugh, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Henry O. Stiler, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by indictment with the crime of second degree murder. Trial by jury resulted in a verdict of guilty as charged.
The record reveals the following evidence:
Appellant, James L. Alderson, and the deceased, Harry Alford, lived on the same floor in an apartment building in Evansville Indiana. On the night of April 3, 1972, the two men had an argument in the hallway between their apartments. During the argument the appellant fired a tear gas pistol in decedent's face. A struggle ensued, following which appellant returned to his room, took a .38 caliber revolver from a box in a dresser drawer and returned to the hall where he fired two shots, one of which struck the deceased. A third shot was fired inside appellant's apartment. This shot also struck the decedent. Two bullets were recovered from the hallway: one from the defendant's apartment door; the other was found lying on the floor in the hall. One bullet was also recovered from the wall in appellant's apartment.
When police arrived a few minutes after the shooting, Alford was dead on the floor in appellant's room. An autopsy revealed that two bullets had passed through his body. Death was caused by a severed aorta.
Appellant admits that he shot decedent, but contends that all the shots were fired in self-defense during the struggle in his room.
Appellant's former wife by deposition corroborated appellant's version. However, in rebuttal the State showed that shortly after the shooting she told a conflicting story.
Appellant raises three issues for the consideration of this Court: 1) Whether the opening statement given by the prosecuting attorney was sufficient as required by statute; 2) Whether the police officer who testified concerning ballistics tests was qualified to so testify; 3) Whether the State was required to lay a foundation prior to impeaching the testimony of appellant's former wife.
Appellant's first argument is based upon the interpretation of IC 35--1--35--1, Burns' Ind.Stat.Ann., 1956 Repl., § 9--1805, the pertinent part of which section reads as follows:
'The jury being impaneled and sworn, the trial shall proceed in the following order:
First. The prosecuting attorney must state the case of the prosecution and briefly state the evidence by which he expects to support it, and the defendant may then state his defense and briefly the evidence he expects to offer in support thereof.'
Appellant contends that the prosecutor's statement was insufficient to fulfill the requirement of the statute. The prosecuting attorney made a brief statement to the effect that the State would attempt to produce evidence on each element of the offense of second degree murder; that the jury would have to consider the testimony together with physical evidence, and that all of the evidence of the State would convince the jury beyond a reasonable doubt that the defendant purposely and maliciously killed the decedent, and that the evidence would show that the defendant was not acting in self-defense. The prosecuting attorney did not attempt to identify the witnesses nor did he attempt to indicate what their testimonies might be.
Appellant cites Blume v. State (1963), 244 Ind. 121, 189 N.E.2d 568, 1 Ind.Dec. 290, for the proposition that the purposes of the opening statement are to inform the jury as to the questions of fact and to inform the accused of the contemplated course of prosecution.
The statute is procedural in nature. This Court has given great leeway to the trial court's discretion in controlling the orderly progress of the trial. In Blume, supra, this Court said that the scope of the opening statement was within the discretion of the trial court, and that the cause would not be reversed unless there was a clear abuse of such discretion.
Appellant contends that he was harmed by the shortcomings of the prosecutor's opening statement for he was thus placed in a position of explaining to the jury the facts of the case and was, therefore, unable to present other important matters which he had planned to present when the court imposed a time limit on his opening statement. This record shows that the time limit was imposed by the trial court only after defense counsel had been warned several times about testifying and going into too much detail in his opening statement.
In the case of Buise v. State (1972), Ind., 281 N.E.2d 93, 96, 30 Ind.Dec. 258, this Court stated:
We, therefore, hold that there is no showing in this record that the appellant was in any way surprised or misled by the opening statement of the prosecuting attorney. The mere fact he did not go into detail as to names of witnesses and specific statements which they would make does not in and of itself justify a reversal of this case.
Appellant's second contention is that the trial court erred in allowing Officer Egan of the Evansville Police Department to testify concerning ballistics tests performed by him for the reason that he was not qualified as a ballistics expert. Officer Egan identified himself as a police officer assigned to the Laboratory Division of the Department. No more qualification was given prior to objection by defense counsel. However, later in his testimony Officer Egan stated that he had been running ballistics tests for the Department in excess of six years; that he had conducted in excess of 700 tests; that he attended the Research Laboratory in Morristown, New Jersey, and the Indiana State Police Laboratory in Indianapolis. The rest of his training was on-the-job training. The officer went into great detail explaining the nature of the ballistics tests and the manner in which they were conducted. Officer Egan did not give an opinion as to whether the bullets recovered at the scene of the crime were fired from appellant's pistol. His testimony consisted solely of his observation that the bullets were of the same caliber and weight as the test bullets fired from appellant's gun, and that they had the same number of lands and grooves and had the same right-hand twist. He stated that the...
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...in the statement unless there has been a clear abuse of discretion resulting in some prejudice to the accused. Alderson v. State, (1974) 262 Ind. 345, 316 N.E.2d 367. The prosecuting attorney generally told the jury that the case was going to boil down to a question of intent. He then told ......
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