People v. Cardwell, 24796

Decision Date21 May 1973
Docket NumberNo. 24796,24796
Citation181 Colo. 421,510 P.2d 317
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Douglas Edward CARDWELL, Defendant-Appellant.
CourtColorado Supreme Court

Duke W. Dunbar, atty. Gen., John P. Moore, Deputy Atty. Gen., George E. DeRoos, George W. Boyle, II, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Randolph M. Karsh, Deputy State Public Defenders, Denver, for defendant-appellant.

KELLEY, Justice.

The defendant, William Douglas Edward Cardwell, and one Jerry Stilley were charged by information with (1) Escape in violation of C.R.S.1963, 40--7--53, and (2) Kidnapping in violation of C.R.S.1963, 40--2--44. Both were tried and found guilty. The district attorney moved to dismiss the escape count, which the court granted. They were sentenced and brought this appeal. Pending this appeal, Stilley died and, as to him, the issues raised are moot.

Five issues are raised challenging the validity of the conviction. Having reviewed each of them and finding them to be without merit, we affirm.

The victim of the kidnapping was Kenneth Allen, a correctional officer at the Colorado State Penitentiary, Canon City, at which institution the defendant and Stilley were inmates at all times relevant to these facts. On September 30, 1969, allen was directed to escort the defendant and Stilley to Denver in connection with the promotion of a play being sponsored by an inmate drama group, to which defendant and Stilley belonged. The three men left the institution at 4:00 a.m. and were to return in approximately 22 hours.

With but few deviations from a pre-arranged schedule, the defendant, Stilley, and Allen went about their assigned tasks until the evening meal. After the evening meal, the three men went to a drug store to get some medication for a purported headache of one of the prisoners. Upon entering the drug store, Stilley and the defendant split up, one going to one part of the store and the other to another section. Apparently, the defendant bought a ruler and other 'office supplies,' although Allen did not examine the contents of the sacks of his two charges.

Later that evening, while trying to find the home of some alleged benefactor, the party, with Allen driving and Stilley giving directions, wound up on a dead end street. As Allen was turning around, Stilley stated he was sick and wanted to get out. The car was stopped and Stilley was allowed to get out; he shortly thereafter returned to the rear seat of the car and by putting some kind of a cord around Allen's neck forced him to the passenger side. The defendant got into the driver's seat and drove the car to a more secluded area adjacent to a creek.

Cardwell then got out of the car, went around to the passenger side and proceeded to tape Allen's hands and mouth. At this time, Cardwell said, 'If you resist, we will stick you with an ice pick.' Next Allen was taken about 75 feet from the car where he was placed on the ground, and his hands and feet were taped and tied with neckties. When the defendant and Stilley returned to the car, Allen made an effort to free his hands. This attempt was discovered and Allen was threatened with a beating. Allen was told that he was bound in such a fashion that it would take him eight hours to free himself.

Allen broke his bonds within an hour and notified police who arrested the defendant and Stilley as they were about to depart for Albuquerque, New Mexico on a charter air flight.

I.

The statute under which the defendant was charged read:

'A person shall be guilty of kidnapping who willfully:

'(2) without lawful authority seizes, confines, imprisons, keeps or detains another against his will, forcibly or otherwise, within the state or to be sent out of the state. . . .' C.R.S.1963, 40--2--44(2).

The defendant suggests that the kidnapping statute, by using words such as 'seize,' 'confine,' 'imprison,' 'keep,' and 'detain' to define the offense, words which he contends have many different meanings, is so vague that men of common intelligence and understanding are required to guess as to its application. We disagree.

The defendant and the People agree that the proper standard to use in testing a criminal statute for vagueness is Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), which enunciated the rule in these words:

'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application violates the first essential of due process of law.'

We follow the Connally test in this jurisdiction. Self v. People, 167 Colo. 292, 448 P.2d 619 (1968); People v. Heckard, 164 Colo. 19, 431 P.2d 1014 (1967); Memorial Trusts v. Berry, 144 Colo. 448, 356 P.2d 884 (1960); and Flank Oil Co. v. Tennessee Gas Transmission Co., 141 Colo. 554, 349 P.2d 1005 (1960).

The statute appears to us to be sufficiently definite to give notice of the proscribed conduct to one who would avoid its penalties, and to guide the judge in its application and defense counsel in defending one charged with its violation. Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952).

The United States Supreme Court, in Boyce Motor Lines v. United States, Supra, observed that,

'. . . But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.'

Mr. Justice Brennan in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, on the issue of vagueness made this pertinent observation:

'. . . This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . (T)he Constitution does not require impossible standards': all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ."

We hold that the kidnapping statute gives sufficiently definite warning of the forbidden conduct so that men of common intelligence can readily apprehend its meaning and application. Kidnapping can be accomplished in many ways; not just be seizing, concealing and holding for ransom. The vagueness argument must fail. The defendant has failed to sustain his burden of proving that the statute is unconstitutionally vague. Love v. Bell, 171 Colo. 27, 465 P.2d 118 (1970).

II.

The defendant assigns four trial court errors which he asserts require us to grant him a new trial. From our review of the record we conclude that there is no merit to these contentions.

A.

If the evidence in the instant case is analyzed in the context of modern legal concepts and reasonable interpretation of legislative intent, the defendant argues, it is insufficient as a matter of law to sustain the conviction.

The defendant urges us to adopt the New York doctrine as expounded in People v. Lombardi, 20 N.Y.2d 266, 282 N.Y.S.2d 519, 229 N.E.2d 206 (1967), and People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965). This doctrine is that the court will limit the application of the kidnapping statute to 'kidnapping' in the conventional sense and will not apply it where the kidnapping is merely 'incidental' to other crimes, and where the risk of harm to the victim is not measurably increased. A similar result would obtain were we to follow the new California rule adopted in People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (1969). We hold, however, that under the circumstances here, the offense of kidnapping was committed.

Evidence of an intent to escape appeared long before Allen was put under actual physical constraint: the deviation from the planned itinerary, the separation of the parties in the drug store, the purchase of the 'office supplies' (the tape used to bind the victim), the directing of the victim to a remote dead end street. During all of these maneuvers, covering both time and distance, the victim was apprehensive and realized he was under partial domination of the defendant and Stilley. This negates the argument that the asportation was of only a few feet and the time of confinement so brief that they were merely incidental to the real crime of escape. Most kidnappings are incidental to some other offense. Even the so-called traditional kidnapping is incidental to extortion or murder or, quite often, both. This kidnapping was done in furtherance of the objective of escape.

The means used to effect the escape was sufficiently horrendous that it should constitute an offense separately cognizable from that of escape. By driving the victim into the more secluded area where the two prisoners could have easily carried out the threat of killing him, they substantially increased the risk of harm above that necessarily attendant upon the intended crime of escape.

Defendant's contention that the legislature did not intend 'incidental detention' to be part of the crime of kidnapping is inapplicable to the facts involved here, as is apparent from the summary of facts...

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