Vacendak v. State, No. 674S121

Docket NºNo. 674S121
Citation340 N.E.2d 352, 264 Ind. 101
Case DateJanuary 22, 1976
CourtSupreme Court of Indiana

Page 352

340 N.E.2d 352
264 Ind. 101
Michael VACENDAK, Appellant,
v.
STATE of Indiana, Appellee.
No. 674S121.
Supreme Court of Indiana.
Jan. 22, 1976.
Rehearing Denied March 12, 1976.

[264 Ind. 102]

Page 353

R. Cordell Funk, Sachs, Hess & Funk, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Douglas W. Meyer, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Justice.

The Appellant, Michael Vacendak, was convicted on November 14, 1973, of kidnapping one Brenda Burkland of Hammond, Indiana. Testimony at trial revealed that the two first met in October, 1972, at a restaurant near the high school in which the prosecutrix was enrolled. Between October, 1972, and January, 1973, they met numerous times at the school, at the restaurant, at the Appellant's place of employment, and on several occasions in the prosecutrix's home. The visits to the Burkland home were not known to or approved by the parents of the prosecutrix. The prosecutrix testified that there was nothing romantic between [264 Ind. 103] them and that when they met they generally discussed the parental problems they each had.

Between the first of the year and July 15, 1973, they did not see each other. On that latter day, a neighbor informed the prosecutrix that the appellant wished to see

Page 354

her. Because her parents were home and because she had to leave for work, she told her neighbor to tell the Appellant to meet her as she walked to work.

The prosecutrix was to be at work at 4:00 p.m. She left her house at about 3:50 p.m. and began walking the three or four blocks to the store in which she clerked. The Appellant suddenly appeared out of some bushes along the sidewalk. After some casual conversation, he offered to give her a ride to work. Since she was running late, she accepted. They got into a two-door sedan driven by a friend of the Appellant, John King. King was referred to as 'Chuck' throughout the following events.

The prosecutrix rode in the rear seat, the Appellant and King in the front. When the car reached the corner across from the store in which the prosecutrix worked, the Appellant refused to let her out of the car. According to the prosecutrix's testimony,

'. . . I said well, I would walk from here and he said your--you are not going to work you are going with me on a little vacation or you may just go for the rest of your life. . . . You are not going to work you are going to call off and you are going to Bloomington.'

The prosecutrix demanded to be let out of the car. King slowed down and asked the Appellant if he wanted to go through with it. The Appellant replied, 'Never mind, just keep going.'

They drove to the toll road a few blocks away and proceeded to Bloomington. The prosecutrix made no attempt to attract the attention of the toll booth attendant. She testified that she did kick and cry hysterically during the trip. The Appellant admitted saying 'I should have brought a club, it would [264 Ind. 104] have made it a lot easier.' No attempt to flee was made since the Appellant and King blocked the only two doors of the car.

The Appellant and King drank beer during the trip. There was testimony that all three stopped at a rest stop along the way to use the restroom facilities. The prosecutrix denied making this stop. She did say that they stopped at a self-service station just outside Bloomington, where King relieved himself. The Appellant, however, stayed in the car with the prosecutrix.

The prosecutrix was taken to a large house in the countryside in Monroe County. Later that night the Appellant had sexual intercourse with her, allegedly a rape. Just before daybreak, she left the house while King and the Appellant slept. She was picked up by one Steve Dowling, who took her to the house of a friend from which she called her parents.

I.

The Appellant's first challenges are constitutional in nature. Challenged are the mandatory penalty of life imprisonment provided by Indiana's kidnapping statute, Ind.Code § 35--1--55--1 (Burns 1975), and the breadth of that statute as it defines the crime of kidnapping.

Four grounds are asserted for the unconstitutionality of the life sentence imposed for kidnapping: that the sentence is disproportionate to the nature of the Appellant's acts; that it is disproportionate to the punishment of other crimes in this state; that it is disproportionate to the punishment of the same crime in other states; that the kidnapping is arbitrarily enforced and its mandatory penalty is thus unconstitutionally arbitrary.

The first three of these grounds are essentially based upon the prohibitions of 'cruel and unusual' punishment contained in the Eighth Amendment of the United States Constitution and Article 1, Section 16 of the Constitution of the State of Indiana. That section of our State Constitution expressly [264 Ind. 105] provides that 'penalties shall be proportioned to the nature of the offense.'

Page 355

Article 1, Section 16 thus specifically provides for proportionality of a crime to a 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) 203 Ind. 544, 181 N.E. 469. The arguments presented here do not merit a different result.

The record reveals that this crime was carried out by at least an implied threat of violence. The asportation covered a great distance and was separated from the subsequent alleged rape by a period of hours. The nature of the particular acts involved with this crime are thus not as innocuous as the Appellant would have us believe. The severity of punishment compared to other crimes can be explained by the degree to which the legislature has deplored this crime. She the discussion of kidnapping in Cox v. State, supra. While it is true that only three states mandate life imprisonment for simple kidnapping, this is a potential sentence in a number of other states, and sentences of twenty-five or more years are possible in still more. The Appellant's claim of arbitrariness merely couches his other arguments in different terms and does not acquire merit by its different label.

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; Lowe v. State, (1973) 260 Ind. 610, 298 N.E.2d 421. The Judiciary will disturb such a determination only upon a showing of clear constitutional infirmity. We do not find such here.

[264 Ind. 106] The Appellant also asserts that the kidnapping statute is overbroad. The Appellant contends that the only crime committed here, if any, is that of rape. As the Appellant interprets it, the kidnapping statute permits any coerced movement to support a charge of kidnapping, no matter how intertwined or incidental the movement is to another act or crime.

In support of this claim the Appellant cites Papachristou v. City of Jacksonville, (1972) 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, which is concerned with vagueness rather than overbreadth. Also cited are Livingston v. Garmire, (5th Cir. 1971) 437 F.2d 1050, and Marks v. City of Anchorage, (Alaska 1972) 500 P.2d 644, which discuss overbreadth and vagueness in relation to expressive conduct. It has recently been held that the overbreadth doctrine extends no further than protection of first amendment freedoms. Moose Lodge v. Irvis, (1972) 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627.

The Appellant's contention fails, however, for still another reason:

'Appellant suggests that this court adopt a principle whereby any restraint and transportation of the victim would be considered only as an integral part of the charge of rape and not as a separate charge of kidnapping. In other words, that because the rape in this case also included a kidnapping or transportation under restraint he should not be prosecuted separately for that crime. Carrying the argument further it seems the victim was not carried very far to constitute a real kidnapping and it was merely incidental to the rape. Of course, the argument fails because a transportation or kidnapping is not necessarily involved in a rape. It might likewise be urged in any crime of violence that the victim was touched only 'lightly' and only incidental to the main crime, and therefore should not be subject to a separate or included charge of assault and battery with intent. In such cases as this the attacker is guilty of a compound crime as happens in instances when a

Page 356

victim is also killed in the commission of another crime, or also kidnaps, while committing a robbery. We do not approve any principle which exempts one from prosecution from all the crimes he commits because he sees fit to compound [264 Ind. 107] or multiply them. Such a principle would encourage the compounding and viciousness of the criminal acts.'

Wilson v. State, (1970) 253 Ind. 585 at 592, 255 N.E.2d 817 at 821--822.

The Appellant's overbreadth claim is unfounded. The statute is valid on its face.

II.

The Appellant next contends that the trial court erred in finding him competent to stand trial. At the Appellant's request, a sanity hearing was held after the trial began. One of two court-appointed doctors reported and testified that in his opinion the Appellant was competent to stand trial and was faking his irrational acts. A second doctor agreed that this was entirely possible, but nonetheless concluded that he was not competent to stand trial. Defense counsel submitted an affidavit stating that the Appellant was not cooperating and that, in counsel's opinion, he was not competent to stand trial. The Appellant's...

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69 practice notes
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...473, 479, 412 N.E.2d 778, 782 (1980) (quoting Riddle v. State, 273 Ind. 112, 116-17, 402 N.E.2d 958, 961 (1980)). See Vacendak v. State, 264 Ind. 101, 109, 340 N.E.2d 352, 357 (1976) (citing DeShone v. State, 207 Ind. 380, 386, 193 N.E. 223, 225 What Wisehart claims is "newly discovered" is......
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...places a high value on finality of judicial resolutions. As a result, the nine-factor approach "is a rigorous one." Vacendak v. State, 264 Ind. 101, 108, 340 N.E.2d 352, 358 (1976). Subsection (k) applies only in death penalty cases. We assume it reflects the legislature's view that in thos......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...instruction for the reason that its substance was adequately covered by other instructions which were given. Vacendak v. State (1976), 264 Ind. 101, 340 N.E.2d 352; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d Therefore, based on the foregoing authority we find the trial court properl......
  • Tinnin v. State, No. 480S117
    • United States
    • Indiana Supreme Court of Indiana
    • February 5, 1981
    ...instruction which is adequately covered by other instructions. Richmond v. State, (1979) Ind., 387 N.E.2d 1312; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352, cert. denied, 429 U.S. 851, 97 S.Ct. 141, 50 L.Ed.2d Defendant's last allegation of error is that the evidence is insuffici......
  • Request a trial to view additional results
69 cases
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • March 19, 1998
    ...473, 479, 412 N.E.2d 778, 782 (1980) (quoting Riddle v. State, 273 Ind. 112, 116-17, 402 N.E.2d 958, 961 (1980)). See Vacendak v. State, 264 Ind. 101, 109, 340 N.E.2d 352, 357 (1976) (citing DeShone v. State, 207 Ind. 380, 386, 193 N.E. 223, 225 What Wisehart claims is "newly discovered" is......
  • Stephenson v. State, No. 87S00-0106-PD-285.
    • United States
    • Indiana Supreme Court of Indiana
    • April 26, 2007
    ...places a high value on finality of judicial resolutions. As a result, the nine-factor approach "is a rigorous one." Vacendak v. State, 264 Ind. 101, 108, 340 N.E.2d 352, 358 (1976). Subsection (k) applies only in death penalty cases. We assume it reflects the legislature's view that in thos......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...instruction for the reason that its substance was adequately covered by other instructions which were given. Vacendak v. State (1976), 264 Ind. 101, 340 N.E.2d 352; Sargeant v. State (1970), 255 Ind. 252, 263 N.E.2d Therefore, based on the foregoing authority we find the trial court properl......
  • Tinnin v. State, No. 480S117
    • United States
    • Indiana Supreme Court of Indiana
    • February 5, 1981
    ...instruction which is adequately covered by other instructions. Richmond v. State, (1979) Ind., 387 N.E.2d 1312; Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352, cert. denied, 429 U.S. 851, 97 S.Ct. 141, 50 L.Ed.2d Defendant's last allegation of error is that the evidence is insuffici......
  • Request a trial to view additional results

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