State v. Davis

• Decision Date: 12 February 1990
• Docket Number: No. 890009-CA,890009-CA
• Citation: 787 P.2d 517
• Parties: STATE of Utah, Plaintiff and Respondent, v. David DAVIS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 517

787 P.2d 517

STATE of Utah, Plaintiff and Respondent, v. David DAVIS, Defendant and Appellant.

No. 890009-CA.

Court of Appeals of Utah.

Feb. 12, 1990.

Stephen R. McCaughey and Patricia Geary, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Sandra Sjogren, Salt Lake City, for plaintiff and respondent.

Before DAVIDSON, BILLINGS and ORME, JJ.

BILLINGS, Judge:

Defendant David Davis was charged with possession of a controlled substance without the required tax stamps affixed, a third degree felony, in violation of Utah Code Ann. § 59-19-105 (1988). Defendant filed a motion to dismiss the charge, claiming that section 59-19-105 of the Utah Drug Stamp Tax Act ¹ is unconstitutional. The trial court denied his motion and consequently defendant entered a conditional plea of no contest.

Defendant argues on appeal that (1) the Utah Drug Stamp Tax Act violates his privilege against self-incrimination under the fifth amendment of the United States Constitution and article I, section 12 of the Utah Constitution; and (2) the Utah Drug Stamp Tax Act is void for vagueness under the fourteenth amendment to the United States Constitution and article I, section 7 of the Utah Constitution. We affirm.

A constitutional challenge to a statute presents a question of law, and thus, we review the trial court's conclusion, that the Utah Drug Stamp Tax Act is constitutional, for correctness. See Nephi City v. Hansen, 779 P.2d 673, 674 (Utah 1989); Provo City Corp. v. Willden, 768 P.2d 455, 456 (Utah 1989); see also Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

Furthermore, we recognize that it is the prerogative of the legislature to create the law. Zamora v. Draper, 635 P.2d 78, 80 (Utah 1981). Thus, we afford the legislature's enactments a presumption of validity. Id.; Greaves v. State, 528 P.2d 805, 806-07 (Utah 1974); Pride Club, Inc. v. State, 25 Utah 2d 333, 481 P.2d 669, 670 (Utah 1971). We will not strike down a statute unless it appears to be unconstitutional beyond a reasonable doubt. Greaves, 528 P.2d at 807; Pride Club, 481 P.2d at 670. Nor will we declare a statute unconstitutional if we can find any reasonable basis to bring it within a constitutional framework. Greaves, 528 P.2d at 807; State v. Packard, 122 Utah 369, 250 P.2d 561, 563 (1952).

I. PRIVILEGE AGAINST SELF-INCRIMINATION

Defendant contends the Utah Drug Stamp Tax Act requires him to incriminate himself in violation of the fifth amendment of the United States Constitution. ² He asserts that proof he purchased and posted the stamps could be used to provide a link in the chain of evidence in a subsequent drug prosecution against him. Defendant claims that the mere purchase of the stamps is an admission of criminal behavior because the law only applies to individuals unlawfully in possession of controlled substances. ³

The state argues, on the other hand, that the Utah Drug Stamp Tax Act does not require stamp purchasers to identify themselves or even to appear in person to pay the tax and obtain the stamps. ⁴ Thus, the state claims the tax commission, under the Utah statutory scheme, receives no incriminating information to disclose to prosecutors.

The United States Supreme Court has long held that the government may tax illegal activities. See License Tax Cases, 5 Wall. 462, 471-73, 18 L.Ed. 497, 501 (1867); Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). However, the government may not establish a method of taxation that violates the fifth amendment. Id. at 44, 88 S.Ct. at 700. In order to evaluate defendant's claims, we first review the scope of protection afforded by the fifth amendment and then focus on prior decisions discussing the relationship between taxes levied on illegal activities and the constitutional privilege against self-incrimination.

The fifth amendment to the United States Constitution provides: "No person shall be ... compelled in any criminal case to be a witness against himself...." This right arises when the government requests information that will subject a person to criminal liability, Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 1183, 47 L.Ed.2d 370 (1976), and applies to compelled written as well as oral testimony. Albertson v. Subversive Activities Control Board, 382 U.S. 70, 78, 86 S.Ct. 194, 198, 15 L.Ed.2d 165 (1965); State v. Durrant, 244 Kan. 522, 769 P.2d 1174, 1179, cert. denied, 492 U.S. 923, 109 S.Ct. 3254, 106 L.Ed.2d 600 (1989). "The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination." Marchetti, 390 U.S. at 53, 88 S.Ct. at 705 (quoting Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951)).

The United States Supreme Court, in defining the scope of the privilege's protection, stated:

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.

Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). However, a defendant may not successfully assert a fifth amendment challenge if other protection is granted to him that is broad enough to provide the same scope of protection as the privilege. Marchetti, 390 U.S. at 58, 88 S.Ct. at 707.

The United States Supreme Court has focused on the privilege against self-incrimination in the context of the government's ability to tax illegal conduct in four cases: Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

In Marchetti, the Court was asked to determine whether a federal wagering registration and tax law ⁵ was unconstitutional under the fifth amendment. The registration provision required taxpayers to register with the Internal Revenue Service, providing their names and addresses and, additionally, the names of their employees and agents. Taxpayers were required to keep daily records showing the gross amount of the wagers and permit inspection of their books. Id. 390 U.S. at 43, 88 S.Ct. at 700. The Court noted that each IRS office was instructed to "maintain for public inspection a listing of all who have paid the occupational tax, and to provide certified copies of the listing upon request to any state or local prosecuting officer." Id. The law imposed no restrictions on the use of the information on the return. Id. at 47, 88 S.Ct. at 702. In fact, the IRS provided the information to prosecuting authorities on a regular basis. Id. at 48, 88 S.Ct. at 702.

The Marchetti Court identified three criteria for determining the constitutionality of a tax statute attacked on fifth amendment grounds: (1) whether the tax is aimed at individuals "inherently suspect of criminal activities," and whether the taxed activity is in an area "permeated with criminal statutes," id. at 47, 88 S.Ct. at 702 (quoting Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165 (1965)), (2) whether an individual is "required, on pain of criminal prosecution, to provide information which [the individual] might reasonably suppose would be available to prosecuting authorities," id. 390 U.S. at 48, 88 S.Ct. at 703, (3) whether such information "would surely prove a significant 'link in a chain' of evidence tending to establish [the individual's] guilt." Id. The Court found the wagering registration and tax provisions at issue met the test and thus violated the fifth amendment. Id. at 60, 88 S.Ct. at 709.

The government argued in Marchetti, as the state does here, that the Supreme Court should read restrictions into the statute prohibiting the use of information developed as a result of payment of the wagering tax by federal and state prosecuting authorities. Id. at 58, 88 S.Ct. at 707. This limitation would then provide protection broad enough to have the same effect as the privilege itself, and render the statutory scheme constitutional. The United States Supreme Court found the government's suggestion, in principle, attractive, but felt precluded from imposing restrictions directly contrary to the statutory language providing for disclosure to prosecutors. Id. at 59-60, 88 S.Ct. at 708-09. The Court felt it inappropriate because the wagering tax system made "quite plain that Congress intended information obtained as a consequence of registration and payment of the occupational tax to be provided to interested prosecuting authorities." Id. at 58-59, 88 S.Ct. at 708.

The United States Supreme Court evaluated a different provision of the same wagering tax scheme--a federal excise tax on wagering--in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). In addition to the requirements of the wagering tax litigated in Marchetti, the wagering excise tax also required taxpayers to submit monthly returns detailing their wagering activities. Grosso, 390 U.S. at 65, 88 S.Ct. at 712. The Court focused in its decision on whether the defendant was "obliged, on pain of criminal prosecution, to provide information which would readily incriminate him, and which he may reasonably expect would be provided to prosecuting authorities." Id. at 66-67, 88 S.Ct. at 713. Based upon a record which substantiated that prosecuting authorities had been regularly provided with the information, the Court found that "[t]hese hazards of incrimination can only be characterized as 'real and appreciable.' " Id. at 67, 88 S.Ct. at 713 (quoting Reg. v. Boyes, 1 B. & S. 311, 330 (1861); Brown v. Walker, 161 U.S. 591, 599-600, 16 S.Ct. 644, 647-48, 40...