State v. Butler

• Decision Date: 25 August 1993
• Docket Number: No. 92-1504,92-1504
• Citation: 505 N.W.2d 806
• Parties: STATE of Iowa, Appellant, v. Tommie Lewis BUTLER, Appellee.
• Court: Iowa Supreme Court

Page 806

505 N.W.2d 806

STATE of Iowa, Appellant, v. Tommie Lewis BUTLER, Appellee.

No. 92-1504.

Supreme Court of Iowa.

Aug. 25, 1993.

Bonnie J. Campbell, Atty. Gen., Sheryl A. Soich, Asst. Atty. Gen., J. Patrick White, County Atty., and David V. Tiffany, Asst. County Atty., for appellant.

Linda Del Gallo, State Appellate Defender and B. John Burns, Asst. State Appellate Defender, for appellee.

Considered by HARRIS, P.J., and SCHULTZ, NEUMAN, SNELL, and ANDREASEN, JJ.

ANDREASEN, Justice.

The State appeals from a district court order dismissing the charge of failure to affix a drug tax stamp on double jeopardy and collateral estoppel grounds. The defendant was previously acquitted of the charge of possession with intent to deliver a controlled substance arising out of the same conduct. The two criminal charges were severed by the court on defendant's motion. The State contends the defendant waived his double jeopardy and collateral estoppel protections by electing to have the two charges tried separately and by persuading the court to honor his election. We conclude the defendant did not waive his collateral estoppel protection and affirm the district court's order.

I. Background.

In 1991, Tommie Lewis Butler was charged in one trial information with one count of possession with intent to deliver a schedule I controlled substance, marijuana, in violation of Iowa Code sections 204.401(1)(d) and 204.204(4) (1991), and one count of failure to affix a drug tax stamp in violation of Iowa Code sections 421A.12, 421A.1(3), 421A.3 and 421A.7 (1991). Following arraignment Butler filed a motion to sever the two counts. The court granted defendant's motion and ordered the State to proceed to trial on the charge of possession with intent to deliver.

At trial the jury found Butler not guilty of possession with intent to deliver marijuana and not guilty of the lesser included offense of possession of marijuana. Later, Butler moved to dismiss the remaining drug tax stamp charge asserting the State's prosecution of the second count was barred on double jeopardy and collateral estoppel grounds. The district court granted Butler's motion to dismiss for the reasons urged by the defendant. The State appealed this ruling.

The issue presented is whether Butler's election to sever the charges against him deprived him of his constitutional right to object to trial on the severed charge under either double jeopardy principles or under the doctrine of collateral estoppel. Our review of questions of constitutional law is de novo. State v. Lange, 495 N.W.2d 105, 106 (Iowa 1993).

II. Double Jeopardy.

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution affords a defendant three basic protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969) (footnotes omitted); State v. McKettrick, 480 N.W.2d 52, 56 (Iowa 1992). The Double Jeopardy Clause applies to state criminal trials through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794-95, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 715-16 (1969); McKettrick, 480 N.W.2d at 56.

The constitutional prohibition against double jeopardy is based on principles of finality and the prevention of prosecutorial overreaching. Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425, 435 (1984); State v. Franzen, 495 N.W.2d 714, 716 (Iowa 1993). "It serves principally as a restraint on the courts and prosecutors." Franzen, 495 N.W.2d at 716.

To determine whether a charge is the "same offense" we have applied the same-elements test, also referred to as the legal elements test, articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as expanded by the same-conduct test recognized in Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548, 564 (1990). Under the Blockburger test,

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. In addition, Grady bars a subsequent prosecution if,

to establish an essential element of an offense charged in that prosecution, [the government] will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Grady, 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. See Lange, 495 N.W.2d at 107.

Applying the same-conduct test of Grady, the criminal charge of possession with intent to deliver and the criminal charge of failure to affix a drug tax stamp would be considered the same offense. To prove violation of the drug tax stamp charge, the State would rely on the same conduct submitted in the first trial. Under this analysis, the second trial against Butler would be barred unless the defendant has waived his double jeopardy protection.

The protection embodied in the Double Jeopardy Clause is personal and may be waived by a defendant's voluntary actions and choices. Jeffers v. United States, 432 U.S. 137, 154, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168, 182 (1977). Relying upon Jeffers, we held a defendant's resistance to consolidation of charges for trial constituted a waiver of the right to assert double jeopardy protection. Lange, 495 N.W.2d at 108. We explained that when the defendant "was solely responsible for the successive prosecutions ... his action deprived him of any right that he might have had against consecutive trials." Id. (quotation omitted).

We find no reason to treat a defendant's resistance to consolidation of charges any differently from Butler's motion to sever the charges. In both cases the defendant elected to have charges of a greater offense and lesser offense tried separately and successfully persuaded the district court to grant his or her motion. See United States v. Blyden, 930 F.2d 323, 327 (3d Cir.1991); United States v. Edmond, 924 F.2d 261, 269-70 (D.C.Cir.1991). Under these circumstances, Butler should not be entitled to use the Double Jeopardy Clause to prevent the State from completing its prosecution on the remaining count. See Franzen, 495 N.W.2d at 718. Because Butler is responsible for the successive prosecutions, he has waived his double jeopardy protection against consecutive trials. See Lange, 495 N.W.2d at 108.

Likewise, the constitutional double jeopardy protection does not extend to Butler if only the Blockburger, same-elements test, is employed. This analysis is now of greater significance because the United States Supreme Court recently overturned Grady. United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556, 573 (1993).

The essential elements of the possession with intent to deliver charge are that (1) Butler knowingly possessed a controlled substance, (2) with intent to deliver. The essential elements of the drug tax stamp charge are that (1) he is a dealer who knowingly possessed a taxable substance, (2) without a stamp, label or other official indicia evidencing that the tax imposed by chapter 421A has been paid. The definition of a dealer includes a person who possesses a certain quantity of a controlled substance. Iowa Code § 421A.1(3).

Because specific intent to deliver is an element in the possession charge that is not included in the stamp tax charge and because proof that there was no stamp or evidence of payment of tax is an element of the stamp tax charge, these two counts would not be considered the "same offense" for double jeopardy purposes. Each of these offenses contains a separate element; the same-elements test is not met. We conclude Butler has failed to establish his right to dismissal of the drug tax stamp charge upon double jeopardy grounds.

III. Collateral Estoppel.

In addition to his double jeopardy claim, Butler argues the doctrine of collateral estoppel prevents the State from prosecuting him on the remaining count. He asserts the acquittal on the charge of possession with intent to deliver and the acquittal on the lesser included offense of possession of marijuana is a bar to prosecution of the drug tax charge.

Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970). In Ashe, the Court held that collateral estoppel "is embodied in the Fifth Amendment guarantee against double jeopardy." Id. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 476. We have applied the doctrine of collateral estoppel to criminal cases in Iowa. See, e.g., State v. Stergion, 248 N.W.2d 911, 913 (Iowa 1976). Under this doctrine, when an acquittal of a criminal defendant determines an issue of ultimate fact, relitigation of that issue or an entire count may be barred in a later proceeding.

Although collateral estoppel is viewed as one of the protections encompassed by the Double Jeopardy Clause, the federal courts agree that it is an entirely separate claim that mandates a separate analysis. See, e.g., Dowling v. United States, 493 U.S. 342, 347-50, 110 S.Ct. 668, 671-74, 107 L.Ed.2d 708, 717-19 (1990); United States v. Bailin, 977 F.2d 270, 275-81 (7th Cir.1992); United States v. Seley, 957 F.2d 717, 720-23 (9th Cir.1992); United States v. Aguilar-Aranceta, 957 F.2d 18, 22-25 (1st Cir.1992), cert. denied, 506 U.S. 834, 113 S.Ct. 105, 121 L.Ed.2d 64; United States v. Ashley Transfer & Storage Co., 858 F.2d 221, 225-27 (...