State v. Dye

• Citation: 572 N.W.2d 524,215 Wis.2d 281
• Decision Date: 26 November 1997
• Docket Number: No. 96-3572-CR,96-3572-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Stephen DYE, Defendant-Appellant. d
• Court: Court of Appeals of Wisconsin

Page 524

572 N.W.2d 524

215 Wis.2d 281

STATE of Wisconsin, Plaintiff-Respondent, v. Stephen DYE, Defendant-Appellant. ^d

No. 96-3572-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 24, 1997.

Opinion Released Nov. 26, 1997.

Opinion Filed Nov. 26, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Donald T. Lang, Assistant State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Gregory M. Posner-Weber, Assistant Attorney General.

Before SNYDER, P.J., and BROWN and ANDERSON, JJ.

SNYDER, Presiding Judge.

Stephen Dye appeals from a judgment of conviction and an order denying postconviction relief. ¹ He now raises claims that: (1) he was subjected to double jeopardy when a conviction for possession with intent to deliver cocaine followed the imposition of a controlled substances tax assessment by the Department of Revenue (DOR); (2) the evidence presented at trial was insufficient to support the State's charge that he was in possession of more than five grams of cocaine; (3) the conviction used to support the habitual criminality enhancements was obtained in violation of his state and federal constitutional rights; and (4) he should be granted a new trial in the interests of justice.

We conclude that Dye's double jeopardy claim is resolved by the fact that the DOR subsequently canceled the drug tax assessment. As to the insufficiency of the evidence to prove that he was in possession of more than five grams of cocaine, we note that all of the test samples were subjected to presumptive testing for cocaine, in addition to random confirmatory tests, and conclude that when coupled with the circumstantial evidence presented by one of the investigating officers, there was sufficient evidence to support the conviction. We further conclude that Dye's attack on the habitual criminality enhancement has been waived due to his stipulation to the fact of the conviction at trial. Because of our analysis of the first three appellate issues and our conclusion that the controversy at issue was fully tried, there is no reason to grant Dye a new trial. Consequently, we affirm.

The charges in this case arose out of the execution of search warrants authorizing police to search Dye's automobile and apartment. A handgun was seized from his vehicle, ² and a number of items suspected of being controlled substances were taken from his apartment. The items seized from his apartment included: a blue plastic film cannister containing two knotted baggies of suspected cocaine base; a yellow gem bag containing a single suspected "rock" of cocaine base; a loose rock of suspected cocaine base; seven smaller, knotted baggies of suspected cocaine base; three other baggies of suspected cocaine base closed with twist ties; and a paper bindle containing what appeared to be cocaine powder. A total of fifteen samples of suspected cocaine were seized. The search also revealed, inter alia, a small quantity of suspected marijuana, a postal gram scale, an electronic gram scale, a pager, small pieces of unfolded paper commonly used to make bindles to package small quantities of cocaine and a bottle of mannitol (a substance used to "cut" cocaine).

The fifteen samples of suspected cocaine were submitted for testing. The chemist who conducted the tests testified that the total weight of the samples was 7.9234 grams. He stated that he conducted presumptive color tests for cocaine on all fifteen samples; based on the presumptive testing, he concluded that fourteen of the samples were cocaine base and one was cocaine powder. He then conducted confirmatory spectrophotometry tests ³ on the single sample of cocaine powder and on a randomly chosen sample of cocaine base; both tests were positive for cocaine. The chemist testified that based on these results he concluded that all fifteen samples were cocaine.

A four-count criminal complaint was filed. See supra note 1. Prior to trial, defense counsel filed a motion seeking to dismiss counts two and four on the grounds that the imposition of additional penalties on these charges would violate Dye's constitutional protections against double jeopardy. Defense counsel argued that the DOR had already imposed a controlled substances tax assessment; therefore, in accord with Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), "the drug tax assessment imposed by the Wisconsin Department of Revenue constituted punishment under the Double Jeopardy Clause." The trial court rejected defense counsel's analysis on this issue.

Following a jury trial, Dye was found guilty on all counts. He was subsequently sentenced to a total of twenty years imprisonment on all four charges. Dye filed a postconviction motion in which he renewed his double jeopardy claim, challenged the sufficiency of the evidence to establish his possession of more than five grams of cocaine and argued that the repeater enhancement was invalid because it was based on a prior conviction that was obtained in violation of his Fifth Amendment constitutional rights (protection against double jeopardy). He later filed an amended motion in which he raised a Fourth Amendment collateral challenge (unreasonable search and seizure) to the prior conviction. Following a hearing, all of his postconviction motions were denied and Dye now appeals.

Dye first argues that his criminal conviction for possession of cocaine with intent to deliver should be reversed because it came after the imposition of a controlled substances tax assessment involving the same drugs. This issue presents a question of law which we review de novo. See State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827, 832 (1987). Because of Dye's claims, we must conduct an independent inquiry into the application of double jeopardy provisions to the facts. This is done to assure that the scope of constitutional protections does not vary from case to case. See id.

Dye claims that his constitutional protections against double jeopardy have been violated because he is being punished twice for the same conduct. Dye and the State are in agreement that the purpose of the Double Jeopardy Clause is to protect against multiple punishments for the same offense. See United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989); State v. Carpenter, 197 Wis.2d 252, 263, 541 N.W.2d 105, 109 (1995), cert. denied, --- U.S. ----, 117 S.Ct. 2507, 138 L.Ed.2d 1011 (1997). Dye then contends that pursuant to the Supreme Court's holding in Kurth Ranch (taxes imposed upon illegal activities are fundamentally different from pure revenue-raising taxes), his conviction subsequent to an assessment of a drug tax penalty constituted "multiple punishment for the same offense."

While the record shows that the DOR issued a notice informing Dye that it intended to proceed under the jeopardy collection procedures outlined in § 139.93(2), STATS., in collecting the controlled substances tax assessed against him, it subsequently canceled this assessment. We take judicial notice of the correspondence from the DOR, which is included in documents filed in this case. See § 902.01, STATS.; see also Dunlavy v. Dairyland Mut. Ins. Co., 21 Wis.2d 105, 111, 124 N.W.2d 73, 76 (1963) (court may take judicial notice of records in secretary of state's office). As Dye recognizes in his brief, "[T]he double jeopardy safeguard at issue in this appeal is the protection against successive punishments." The correspondence from the DOR states that the tax assessment Dye characterizes as a penalty has been canceled. The cancellation of the assessment in this case makes the double jeopardy issue moot and we decline to address it further. ⁴ See State ex rel. Wis. Envtl. Decade v. Joint Comm., 73 Wis.2d 234, 236, 243 N.W.2d 497, 498 (1976).

Dye next argues that "the evidence presented at trial was insufficient to prove beyond a reasonable doubt that [he] possessed more than five grams of cocaine." While questions regarding the sufficiency of the evidence are normally afforded deference and left to the discretion of the trial court, see State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990), the issue that Dye presents requires that we apply established law to the facts of the case. This presents a question of law which we review de novo. See Schinker v. McCraw, 148 Wis.2d 448, 450, 435 N.W.2d 739, 740 (Ct.App.1988) (when facts are undisputed and only a question of law is at issue, the court of appeals owes no deference to the trial court).

Dye predicates this argument on his contentions that: (1) although all of the samples were subjected to presumptive testing, confirmatory tests were run on only two of the seized samples; and (2) the supreme court has determined that a nonspecific test is insufficient to support a finding beyond a reasonable doubt that the substance is actually what it is alleged to be, see State v. Jackson, 161 Wis.2d 527, 528-29, 468 N.W.2d 431, 431 (1991). Based on Jackson, Dye then reasons that the State failed to prove beyond a reasonable doubt that he possessed more than five grams of cocaine, thus invalidating that portion of his conviction. ⁵

Dye misapplies Jackson. In that case, the supreme court had accepted review of an unpublished court of appeals decision to consider whether a particular field test for cocaine, the cobalt thiocyanate test, which had been conducted by police "might in itself be sufficient to support a conviction for possession of the drug." Jackson, 161 Wis.2d at 528, 468 N.W.2d at 431. Because the State conceded the nonspecificity of the test and failed to provide the court with any evidence that the cobalt thiocyanate test offered improved reliability and accuracy, the supreme court dismissed the petition for review. It concluded that "[t]he evidence presented by the state may have been...