Rector v. State

• Citation: 264 Ind. 78,339 N.E.2d 551
• Decision Date: 05 January 1976
• Docket Number: No. 174S32,174S32
• Court: Supreme Court of Indiana
• Parties: Joe RECTOR, Appellant, v. STATE of Indiana, Appellee.

Page 551

339 N.E.2d 551

264 Ind. 78

Joe RECTOR, Appellant, v. STATE of Indiana, Appellee.

No. 174S32.

Supreme Court of Indiana.

Jan. 5, 1976.

Lawrence O. Sells, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

ARTERBURN, Justice.

This is an appeal from denial of a petition for postconviction relief. The Appellant was convicted of kidnapping, Ind.Code § 35--1--55--1, Burns § 10--2901 (1956), on September 24, 1969, and sentenced to life imprisonment. A Motion for New Trial which was overruled on November 21, 1969, was appealed and affirmed by this court. Rector v. State, (1971) 256 Ind. 634, 271 N.E.2d 452.

The Appellant filed a Petition for Post Conviction Relief in May of 1972. This petition was denied on June 15, 1973. On August 13, 1973, the Appellant filed a Motion to Correct Errors. It is from the overruling of this motion on November 13, 1973, that the Appellant now appeals.

The Appellant's charge of kidnapping and a charge of assault and battery with intent to kill, of which he was acquitted, arose from an alleged forced abduction of one Cloise W. Tarrant. The Appellant was apparently seeking information about a trailer which Tarrant had repossessed from him. The Appellant and one David Lee took Tarrant against his will to various points in Jasper County, Indiana. The Appellant was arrested some two and one half hours after the abduction.

The Appellant, his accomplice Lee, and the victim Tarrant made two stops in their drive around Jasper County where they were seen by others. The first stop was for gas. At that time one Steven Shepard saw the Appellant holding a gun on Tarrant and reported this to the police, along with a description of the car and its license number. The second stop was made at the house of one Russell Crews, where the trailer was parked. The appellant went in the house to call the person from whom he had purchased the trailer. While inside he twice made threatening remarks about Tarrant, though Crews did not believe him to be serious.

Two other witnesses testified that the Appellant had to be dissuaded from going into a restaurant earlier that evening and beating up Tarrant. The Appellant testified and denied forcing Tarrant into the car or threatening him. Both the victim and the Appellant's accomplice also testified.

I.

The Appellant raises three issues in this appeal. He first challenges the constitutionality of the punishment imposed on him. This is based on two grounds: that the life sentence imposed is disproportionate to the nature of the offense and amounts to cruel and unusual punishment; that imposition of a mandatory life sentence for kidnapping violates guarantees of equal protection of the laws.

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, as does Article 1, Section 16 of the Constitution of the State of Indiana. That provision of our state constitution also provides that 'penalties shall be proportioned to the nature of the offense.' Article 1, Section 16 thus specifically provides for proportionality of a crime to its punishment, something the words 'cruel and unusual' alone have been interpreted to include in our federal constitution. See Weems v. United States, (1910) 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793.

This court has upheld the sentence of life imprisonment for the crime of kidnapping in the face of cruel and unusual proportionality challenges. Beard v. State, (1975) Ind., 323 N.E.2d 216; Cox v. State, (1931) 203 Ind. 544, 177 N.E. 898, rehearing denied, (1932) 181 N.E. 469. Its validity before the argument presented here and before the equal protection guarantees of the Fourteenth Amendment of the United States Constitution and Article 1, Section 23 of the Constitution of the State of Indiana, revolve around an examination of statutory provisions.

The Appellant directs our attention to two statutes: Kidnapping, Ind.Code § 35--1--55--1, Burns § 10--2901 (1956), and Child Stealing, Ind.Code § 35--1--55--2, Burns § 10--2902 (1956). He contends that his sentence of life imprisonment is not proportionate to the crime of kidnapping in view of the sentence of not less than two years nor more than fourteen years that attaches to the crime of child stealing. Furthermore, he contends that this disparity of punishment denies him equal protection of the laws. Those statutes read in full as follows:

'Kidnaping.--Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this state, or arrests or imprisons any person, with the intention of having such person carried away from any place within this state, unless it be in pursuance of the laws of this state or of the United States, is guilty of kidnaping, and, on conviction, shall be imprisoned in the state prison during life.'

'Child stealing.--Whoever takes, leads, carries, decoys or entices away a child under age of fourteen (14) years, with intent unlawfully to detain or conceal such child from its parents, guardian or other person having the lawful charge or custody of such child, and whoever, with the intent aforesaid, knowingly harbors or conceals any such child so led, taken, carried, decoyed or enticed away, on conviction, shall be fined not less than fifty dollars ($50.00), nor more than one thousand dollars ($1,000), and be imprisoned in the state prison not less than two (2) years nor more than fourteen (14) years.'

The Appellant does not explain his view of the applicability of Article 1, Section 16 of our state constitution to the facts presented here. 'Most cases dealing with art. 1, § 16 have concerned lesser included offenses. Statutes often provided for a greater possible penalty for the lesser included offense than was provided for the greater offense. However, the Indiana Supreme Court, relying on art. 1, § 16, has held that the penalty for the lesser included offense may not be greater than that provided for the greater offense.' Clark v. State, (1974) Ind.App., 311 N.E.2d 439 at 440. Kidnapping is clearly not a lesser included offense of the crime of child stealing. The thrust of the Appellant's argument can thus only be seen as this: that the penalty for kidnapping is too great because the penalty for child stealing is so small. This asks us to engage in essentially legislative judgments, which we cannot do. The determination of appropriate penalties for crimes committed in this state is a function properly exercised by the legislature. Rowe v. State, (1974) Ind., 314 N.E.2d 745. The legislature may properly impose on separate and distinct offenses penalties not proportionate to one another. See Clark, supra; Lane v. State, (1972)259 Ind. 468, 288 N.E.2d 258. The crime of kidnapping includes elements of force or fraud, which the crime of child stealing does not. It is within the constitutional authority of our legislature to determine that this separate crime, with these distinct elements, permits a greater penalty.

It is this classification by the devices used in abduction, force or fraud, that we are concerned with in resolving the Appellant's equal protection argument. The classification is not one of age, as the Appellant contends, since the abduction of a child under the age of fourteen years may include force or fraud and thus constitute the crime of kidnapping. See Shipman v. State, (1962) 243 Ind. 245, 183 N.E.2d 823.

The approach of this court in determining whether state and federal guarantees of equal protection are being violated was set out in State ex rel. Miller v. McDonald, (1973) 260 Ind. 565 at 569--570, 297 N.E.2d 826 at 829:

'The Equal Protection Clause does not prevent a state or municipality from indulging in reasonable legislative classification. Graham v. Richardson (1971), 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534. Generally speaking, if a classification is shown to have any rational or reasonable basis, it will be sustained. Graham, supra; United States v. Maryland Savings-Share Ins. Corp. (1970), 400 U.S. 4, 91 S.Ct. 16, 27 L.Ed.2d 4. Normally, the enactment is presumed to be valid; the burden being on the party challenging its validity to overcome such presumption. Graham, supra; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16.

There are instances in which the rational basis formulation is inadequate and a stricter standard of judicial scrutiny is required. If fundamental rights or 'suspect' classes are involved, the State and not the complainants must shoulder a 'heavy burden of justification' by proving a compelling state interest and a necessary relation between that interest and the classification in question. Rodriguez, supra; Bullock v. Carter (1972), 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 93; Graham, supra; Turner v. Fouche (1970), 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.'

'Those who use force or fraud' cannot be deemed a suspect classification. Nor is there a fundamental right to use force or fraud in committing an illegal act. It is thus sufficient to uphold the kindapping statute that it have a rational or reasonable relation to the purpose of the statute. Miller, supra, and cases cited therein. The classification defined by the use of force or fraud is clarly related to the purpose of deterring and punishing kidnapping. The legislature may reasonably have concluded that kidnapping by force or fraud was a greater evil than either stealing a child without the use of either force or fraud and demanded a greater penalty. We find the contentions of the Appellant here to be without merit.

II.

The Appellant next asserts that error was committed at his post-conviction hearing in the exclusion of certain testimony. One Donald Gillenwater attempted to testify that a few days after the Appellant's sentencing, Tarrant, the victim and State's chief witness, told Gillenwater that...