Nelson v. State, 1275S362
| Decision Date | 10 November 1976 |
| Docket Number | No. 1275S362,1275S362 |
| Citation | 356 N.E.2d 682,265 Ind. 542 |
| Parties | Robert E. NELSON and Charles Howard Nelson, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Richard W. Maroc, Hammond, for appellants.
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
The defendants (appellants), Robert and Charles Nelson, where charged by information on January 9, 1975, with the offenses of kidnapping and rape. Both entered pleas of not guilty. A jury trial resulted in verdicts on both counts against both defendants; both were sentenced to life imprisonment on the kidnapping conviction and to 21 years on the rape conviction, the sentences to be served concurrently. In their brief both defendants challenge the constitutionality of their life sentence as cruel and unusual punishment. Robert Nelson alone contends that he was denied due process in being denied a determination of whether an in-court identification was tainted by an impermissible pre-trial identification.
Briefly stated, the evidence was as follows. The prosecutrix was abducted by three men as she was returning to her apartment in Bloomington. After being transferred from a car to a van, she was forcibly raped by all three men. She was then taken to a motel in Gary, Indiana. En route she had been raped again and forced to perform fellatio and anal intercourse. She was raped again in the motel room. She was tied to the bed when two of her abductors left the room. After the third man, Charles Nelson, fell asleep beside her, she freed herself from bondage, escaped from the room and notified the police. Charles Nelson was apprehended at the motel room.
The state claims that both the issues briefed are not preserved for appeal because of the failure of defendants to specifically address these issues to the trial judge in their belated motion to correct errors. The only relevant allegation of the belated motion states that the verdicts are contrary to law and not sustained by sufficient evidence. This clearly was not adequate to present these issues to the trial court especially in light of defendants' failure to raise either issue during the trial. Spivey v. State, (1971), 257 Ind. 257, 274 N.E.2d 227.
Regardless of this procedural failure, the defendants' arguments are without merit. This Court has previously considered the kidnapping statute and the life sentence it imposes and has found it constitutional. Vacendak v. State, (1976), Ind., 340 N.E.2d 352. As to the issue of identification, no objection was raised by the defendant to the prosecuting witness's in-court identification, to her testimony concerning a photographic...
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...and life (kidnapping). Their convictions were unanimously affirmed on direct appeal by the Supreme Court of Indiana. Nelson v. State, 265 Ind. 542, 356 N.E.2d 682 (1976). Petitioners subsequently commenced a post-conviction proceeding under Ind. P.C.R. 1 § 1 et seq., raising the claims now ......
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