Buise v. State, 371S59

• Decision Date: 12 April 1972
• Docket Number: No. 371S59,371S59
• Citation: 30 Ind.Dec. 258,281 N.E.2d 93,258 Ind. 321
• Parties: Roy BUISE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

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.

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 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:

'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)

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 nature of the case and the nature of the defense and just how the evidence as presented fits into the charges filed and the defense made. Blume v. State (1963), 244 Ind. 121, 189 N.E.2d 568. The opening statement is not evidence and the jury is so instructed. Neither is an argument permitted. Therefore, the defendant can not be said to have been harmed unless the State has abused its privilege in making the opening statement by misstatement or false statements which have prejudicially misled a defendant.

The procedure at one time in the state by statute permitted the defendant to make an opening statement after the State had presented its case in chief. This has changed by statute and we can find no valid reason presented by the defendant why such procedure, as now fixed by statute, is invalid for prejudicial. The defendant points out nothing in the opening statement by the prosecuting attorney that misled or surprised him.

It is further to be noted that the procedure for discovery was also available for the defendant order to apprise himself what the evidence of the State would be. There is very little ground for a defendant to be taken by surprise in his defense under the present criminal procedure for discovery.

The appellant claims that it was error for the prosecuting attorney in his opening statement to refer to the evidence he expected to present with reference to the relationship and affair the appellant was having at the time he shot and killed the victim involved in this case. Such evidence was relevant and proper for the jury to consider on the question of malice and the background and surrounding circumstances that incited and caused the shooting. The evidence of the marital problems between the appellant and his wife was highly significant to this case and any evidence relating to the causes of the shooting which came about because appellant's wife was having an affair is relevant. It is clear that evidence of appellant's affair is relevant in showing his motive and malice or premeditation. The entire chain of events surrounding the killing is concerned with marital relations, and the fact that appellant betrayed his wife is equally as important as the fact that his wife betrayed him. It is only proper that the jury was apprised of the activities of the appellant as well as those of his wife. It was entirely proper for the prosecutor to tell the jury that he would introduce evidence showing the cause, motive and malice involved in the situation.

We can...