State v. Durrant
| Decision Date | 03 March 1989 |
| Docket Number | Nos. 62446,62560,s. 62446 |
| Parties | STATE of Kansas, Appellant, v. John R. DURRANT, Appellee. STATE of Kansas, Appellant, v. Lon D. and Cindy M. DRESSEL, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity and, before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. The burden of proof is on the party challenging the constitutionality of the statute.
2. While most of the reported cases involving the privilege against self-incrimination involve actual oral statements or testimony, it is clear that the Fifth Amendment protection applies to compelled written statements and forms as well as compelled oral testimony.
3. A tax may be imposed on an activity that is wholly or partially unlawful under state or federal statutes.
4. The Fifth Amendment privilege against self-incrimination may not properly be asserted if other protection is granted that is broad enough to provide the same scope and effect as the privilege itself.
5. For testimony, written or oral, to justify invocation of the Fifth Amendment privilege against self-incrimination, it must not only be compelled but must also be incriminating.
6. The Fifth Amendment protection against self-incrimination applies not only to the potential direct use of the compelled testimony but also applies if such testimony might reasonably lead to other incriminating evidence.
7. Testimony subject to the Fifth Amendment privilege against self-incrimination elicited as a result of a grant of immunity pursuant to state law may not be used in a subsequent federal prosecution.
8. The ultimate test of whether a statute which contains a grant of immunity violates the Fifth Amendment privilege against self-incrimination is whether the grant of immunity is so broad as to have the same extent in scope and effect as the privilege itself.
9. For a statutory grant of immunity to be coextensive with the privilege against self-incrimination, it must grant not only use immunity, or protection from the direct use of compelled incriminating information, but also derivative-use immunity, which prohibits use of any such information for investigatory purposes leading to other evidence of criminal activity.
10. An appellate court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute.
11. The legislature, by its enactment of K.S.A. 1988 Supp. 79-5206 as a part of the marijuana and controlled substances tax act, intended to extend not only use immunity but also derivative-use immunity to any person complying with the act.
12. All information obtained through compliance with K.S.A.1988 Supp. 79-5201 et seq. is confidential and may not be used as evidence in the prosecution for any crimes other than enforcement of the act itself. Any evidence obtained through the use of such confidential information is likewise confidential and inadmissible in the prosecution of any criminal offense, other than for the enforcement of the act itself.
13. K.S.A.1988 Supp. 79-5201 et seq., as construed in the opinion, does not violate the Fifth Amendment privilege against self-incrimination and therefore is not unconstitutional on such grounds.
Gregory G. Hough, Asst. Atty. Gen., argued the cause and Robert T. Stephan, Atty. Gen., Gene M. Olander, Dist. Atty., and Kenneth R. Smith, Asst. Dist. Atty., were on the brief, for appellant.
William K. Rork, Topeka, argued the cause and was on the brief, for appellees.
The State of Kansas appeals upon a question reserved in two separate criminal cases in which the district courts of Shawnee County and Osage County held the act providing for taxation of marijuana and controlled substances, K.S.A.1988 Supp. 79-5201 et seq., unconstitutional as violating the Fifth Amendment privilege against self-incrimination. The cases have been consolidated on appeal.
State v. Durrant is an appeal by the State from Shawnee County District Court pursuant to K.S.A. 22-3601(b)(2) and K.S.A. 22-3602(b).
On four occasions in February and early March 1988, John Durrant allegedly sold cocaine to undercover police officers at a club in Topeka. He was subsequently charged with five counts of possession of a narcotic drug, two counts of failing to pay the tax imposed by K.S.A.1988 Supp. 79- 5201 et seq., one count of unlawful use of weapons, and one count of possessing drug paraphernalia.
The defense filed a motion attacking the constitutionality of K.S.A.1988 Supp. 79-5201 et seq. (the Kansas drug tax act), contending, among other things, that the act violates the Fifth Amendment privilege against compelled self-incrimination. Following the State's response, the district court held that the act violates the Fifth Amendment privilege against self-incrimination and is therefore unconstitutional. The two counts alleging violations of the act were therefore dismissed. The remaining charges against Durrant were dismissed and the State filed this appeal on June 7, 1988. See State v. Freeman, 234 Kan. 278, Syl. p 2, 670 P.2d 1365 (1983).
State v. Dressel is an appeal by the State from Osage County District Court upon a question reserved. K.S.A. 22-3602(b)(3).
Lon D. and Cindy M. Dressel, a young married couple, were arrested after a search of their leased property yielded 174 marijuana plants, 27 packages of marijuana, $6,000 in cash, and a bottle of pills. They were charged with one count of possession of marijuana with intent to sell, one count of failing to comply with the statute imposing a tax on marijuana and controlled substances, one count of possession of a narcotic drug, and one count of possession of drug paraphernalia. Defense counsel filed a motion seeking a determination of the constitutionality of the drug tax act, contending in part that it violates the Fifth Amendment privilege against self-incrimination. Following the State's response, the district court on March 29, 1988, filed its order finding the act unconstitutional as a violation of the Fifth Amendment privilege against self-incrimination. Count II of the complaint was therefore dismissed.
The case went to trial April 25, 1988, on the remaining charges. The defendants were convicted of possession of marijuana with intent to sell and possession of drug paraphernalia. Following return of the jury verdict, the prosecution asked the court to note for the record that the State reserved for appeal the question of whether the tax statute was unconstitutional. The journal entry documenting the conviction and the dismissal of Count II was filed on June 28, 1988, and thereafter the State appealed. While the defendants in case No. 62,560 question the jurisdiction of the court to hear the State's appeal, we conclude that the constitutional issue raised in both appeals is properly before this court for determination.
In both cases the trial courts found K.S.A.1988 Supp. 79-5201 et seq. unconstitutional as a violation of the Fifth Amendment privilege against self-incrimination. The Shawnee County court concluded that the provisions of the act exposed an individual to the risk that information gained by the State might subsequently be used against that individual in criminal prosecutions in the federal court. The Osage County court held that "[t]he immunity clauses of the law fail to give absolute immunity and could lead to investigatory searches, a use which is barred by the [Fifth Amendment] privilege."
At the outset we pause to point out the basic principles applicable when we are called upon to determine the constitutionality of a statute. They were recently stated in Federal Land Bank of Wichita v. Bott, 240 Kan. 624, Syl. p 1, 732 P.2d 710 (1987), wherein the court held:
See State v. Barclay, 238 Kan. 148, 153, 708 P.2d 972 (1985); State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980); State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979), and cases cited therein. The burden of proof is on the party challenging the constitutionality of the statute. Clark v Walker, 225 Kan. 359, 366, 590 P.2d 1043 (1979); State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978).
In both cases in the district courts and on appeal, the defendants were represented by the same counsel, and essentially the same arguments have been presented in both cases. Although the district courts reached the same conclusion, they did so based upon somewhat different reasoning.
K.S.A.1988 Supp. 79-5201 et seq. was passed by the legislature in 1987 and became effective July 1 the same year. The act consists of ten sections designated K.S.A.1988 Supp. 79-5201 through 79-5210. We will summarize the provisions of the act and only set forth verbatim those sections which we deem controlling in these cases. K.S.A.1988 Supp. 79-5201 defines "marijuana" and "controlled substance" by reference to the appropriate subsections of K.S.A. 65-4101. A "dealer" is defined by reference to minimum amounts of the drugs involved...
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