Buise v. State, No. 371S59

Docket NºNo. 371S59
Citation30 Ind.Dec. 258, 281 N.E.2d 93, 258 Ind. 321
Case DateApril 12, 1972
CourtSupreme Court of Indiana

Page 93

281 N.E.2d 93
258 Ind. 321
Roy BUISE, Appellant,
v.
STATE of Indiana, Appellee.
No. 371S59.
Supreme Court of Indiana.
April 12, 1972.
Rehearing Denied June 5, 1972.

[258 Ind. 322]

Page 95

James L. Brand, Greenfield, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleves, III, Deputy Atty. Gen., for appellee.

ARTERBURN, Chief Justice.

This is an appeal taken from a judgment of the Hancock County Superior Court by which the defendant was convicted of second degree murder pursuant to Burns' Ind.Stat.Anno., § 10--3040 (1956 Repl.), IC 1971, 35--17--5--13. Appellant was sentenced to the Indiana State Prison for not less than fifteen (15) nor more than twenty-five (25) years.

A review of the evidence in support of the verdict of the lower court reveals that on March 15, 1970, the appellant, Roy Buise, told his wife he wanted her out of the house. When he returned to his home later in the day, he found his wife packing some of her belongings. They then engaged in some conversation about his suspicions that she was having an affair with another man. Shortly thereafter, Mrs. Buise left the apartment and appellant went to his job. Mrs. Buise [258 Ind. 323] ultimately went to the apartment of Mr. Richard Kuennen, the manager of the plant where she worked, and the man with whom she was having an affair.

After appellant's departure from his home, he proceeded to inquire among acquaintances about the name and address of his wife's boss. Upon learning that Kuennen lived several miles away in Anderson, Indiana, appellant asked Andrea Miller, a girlfriend with whom he was having an affair, to drive him to Anderson. Appellant first stopped by his apartment to pick up a pistol. Then, he and Miss Miller drove to Anderson, Indiana, in search of Richard Kuennen's apartment.

Upon locating the apartment, appellant drew the pistol, then knocked on the door. When Kuennen denied entrance to the appellant, he kicked the door in. After smashing the door, appellant shot Kuennen through the heart. Appellant then forced his way in to the bedroom and struck his wife several times with the gun.

Appellant then returned to Miss Miller's car, and told her that he had shot a man and 'beat the hell out of' his wife. He then told Miss Miller to drive to a bridge so he could attempt to dispose of the gun by throwing it into a creek. Appellant then returned home to pick up spare cartridges for the pistol, which he then disposed of in another creek. He asked Miss Miller to dispose of his jacket and to burn the paper with Kuennen's name on it. Appellant then returned to work.

Appellant presents four assignments of error on the part of the trial court. Alleged error number one is that the trial court committed reversible error when it failed to sustain defendant's motion to be allowed to make his opening statement at the close of the State's case rather than following the State's opening statement as provided by statute. The time in which parties are allowed to make opening statements is regulated by statute. Burns' Ind.Stat.Anno., § 9--1805, (1956 Repl.), IC 1971, 35--1--35--1 provides as follows:

[258 Ind. 324] '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.

Second. The prosecuting attorney shall then offer the evidence in support of the prosecution and the defendant shall then offer the evidence in support of his defense.' (emphasis added)

Page 96

In this case when the prosecutor concluded his own opening statement, the trial judge offered the defendant the opportunity to make his opening statement. Rather than making his opening statement then, at the time called for by statute, appellant instead moved the court to allow him to make the opening statement at the close of the prosecutor's evidence. The motion was overruled. Thus, with full knowledge that the court would not permit the opening statement by the defendant at the time he desired, the appellant nonetheless elected not to make an opening statement at the proper time. In our opinion, the defendant having had an opportunity to make an opening statement, and electing not to do so, waived such privilege.

The purpose of an opening statement is primarily to inform the jury of the...

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29 practice notes
  • Sanchez v. State, No. 92S03-0009-CR-518.
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Junio 2001
    ...which fill in the background of the narrative and give it interest, color, and lifelikeness.") (citations omitted); Buise v. State, 258 Ind. 321, 325, 281 N.E.2d 93, 96 (1972); see generally Fed.R.Evid. 401 advisory committee's note; 1 McCormick on Evidence § 185 (John W. Strong ed., 5th ed......
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Enero 1973
    ...doubt of the crime for which he was convicted. Riner v. State (1972), Ind.,281 N.E.2d 815, rehearing denied; Buise v. State (1972), Ind., 281 N.E.2d 93, rehearing denied; McKinley v. State (1972), Ind., 281 N.E.2d 91, rehearing The statute defining murder in the second degree which was in e......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Junio 1977
    ...to elect to address his opening statement to the jury after hearing the State's evidence. We determined in Buise v. State, (1972) 258 Ind. 321, 281 N.E.2d 93, that the statute does not allow a defendant to do so. Appellant contends, however, that this construction of the statute compelled h......
  • State v. Alderette, No. 1366
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 3 Julio 1974
    ...into the charges filed and the defense made. . . . The opening statement is not evidence and the jury is so instructed.' Buise v. State, 281 N.E.2d 93, 96 (Ind. 1972). It has no binding force or effect. White v. State, 11 Md.App. 423, 274 A.2d 671, 675 (1971); Clarke v. State, 238 Md. 11, 2......
  • Request a trial to view additional results
29 cases
  • Sanchez v. State, No. 92S03-0009-CR-518.
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Junio 2001
    ...which fill in the background of the narrative and give it interest, color, and lifelikeness.") (citations omitted); Buise v. State, 258 Ind. 321, 325, 281 N.E.2d 93, 96 (1972); see generally Fed.R.Evid. 401 advisory committee's note; 1 McCormick on Evidence § 185 (John W. Strong ed., 5th ed......
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Enero 1973
    ...doubt of the crime for which he was convicted. Riner v. State (1972), Ind.,281 N.E.2d 815, rehearing denied; Buise v. State (1972), Ind., 281 N.E.2d 93, rehearing denied; McKinley v. State (1972), Ind., 281 N.E.2d 91, rehearing The statute defining murder in the second degree which was in e......
  • Candler v. State, No. 576S164
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Junio 1977
    ...to elect to address his opening statement to the jury after hearing the State's evidence. We determined in Buise v. State, (1972) 258 Ind. 321, 281 N.E.2d 93, that the statute does not allow a defendant to do so. Appellant contends, however, that this construction of the statute compelled h......
  • State v. Alderette, No. 1366
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 3 Julio 1974
    ...into the charges filed and the defense made. . . . The opening statement is not evidence and the jury is so instructed.' Buise v. State, 281 N.E.2d 93, 96 (Ind. 1972). It has no binding force or effect. White v. State, 11 Md.App. 423, 274 A.2d 671, 675 (1971); Clarke v. State, 238 Md. 11, 2......
  • Request a trial to view additional results

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