State v. Garza

• Decision Date: 26 February 1993
• Docket Number: No. S-91-736,S-91-736
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Gerardo GARZA, Appellant.

Page 448

496 N.W.2d 448

242 Neb. 573

STATE of Nebraska, Appellee, v. Gerardo GARZA, Appellant.

No. S-91-736.

Supreme Court of Nebraska.

Feb. 26, 1993.

Syllabus by the Court

1. Constitutional Law: Appeal and Error. To be properly raised at the appellate court level, a specific constitutional challenge must have been presented to the trial court for disposition.

2. Constitutional Law: Taxation: Self-Incrimination. A statutory tax which, if complied with, confronts the taxpayer with a "real and appreciable" hazard of self-incrimination is unconstitutional and unenforceable unless the statute provides protection as broad in scope and effect as the right against self-incrimination.

3. Constitutional Law: Statutes: Presumptions. State statutes are presumed to be constitutional, and when a statute is constitutionally suspect the Nebraska Supreme Court will endeavor to construe the statute in a manner consistent with the Constitution.

4. Taxation: Controlled Substances. Any written information received by the Nebraska Tax Commissioner from a taxpayer complying with Nebraska's Marijuana and Controlled Substances Tax Act shall be considered part of the "report" referred to in Neb.Rev.Stat. § 77-4315 (Reissue 1990). Such information is confidential.

5. Criminal Law: Taxation: Controlled Substances: Trial: Evidence. Under Nebraska's Marijuana and Controlled Substances Tax Act, information may be "directly" confidential under Neb.Rev.Stat. § 77-4315 (Reissue 1990) or "derivatively" confidential, if gained through the use of otherwise confidential information. All such confidential information is inadmissible against the taxpayer in a criminal proceeding, except when independently obtained or when being used in a prosecution to enforce the act.

6. Constitutional Law: Taxation: Controlled Substances: Self-Incrimination. Because information disclosed by complying with Nebraska's Marijuana and Controlled Substances Tax Act is confidential, a taxpayer cannot refuse to comply with the act based on the constitutional right against compulsory self-incrimination.

7. Taxation: Controlled Substances: Liens: Actions. If a taxpayer, by unjustified nonpayment of a tax due under Nebraska's Marijuana and Controlled Substances Tax Act, forces the Nebraska Tax Commissioner to file a tax lien or bring an action for unpaid taxes, disclosures resulting from the filing will not be confidential.

8. Taxation. A tax imposed on the doing of an act, including a business or license tax, is an excise tax and not a property tax.

9. Constitutional Law: Taxation. The requirements of Neb. Const. art. VIII, § 1, are not applicable to an excise tax.

10. Taxation: Controlled Substances. The tax imposed by Nebraska's Marijuana and Controlled Substances Tax Act is an excise tax and need not be levied by valuation.

11. Appeal and Error. An appellate court will address only issues that are both assigned as error and discussed in the brief of the party alleging prejudicial error.

12. Criminal Law: Controlled Substances: Statutes: Taxation. Neb.Rev.Stat. § 77-4301(2) (Reissue 1990), in conjunction with Neb.Rev.Stat. § 77-4309 (Reissue 1990), does not conflict with Neb.Rev.Stat. § 28-416(6) (Reissue 1989).

13. Search and Seizure: Search Warrants: Presumptions. A search pursuant to a warrant is presumed valid.

14. Search Warrants: Probable Cause. In evaluating probable cause for the issuance of a search warrant, a magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Jeffrey L. Hrouda, Norfolk, for appellant.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

WHITE, Justice.

Gerardo Garza appeals his district court convictions for possession of marijuana with intent to deliver (count I) and failure to affix the requisite tax stamps to marijuana or controlled substances in his possession (count II). On count I, a violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1989), Garza was sentenced to not less than 18 months' nor more than 3 years' incarceration, with 63 days credited for time served. On count II, a violation of Neb.Rev.Stat. § 77-4309 (Reissue 1990), Garza was sentenced to 1 year's imprisonment, the sentence to run concurrently with the count I sentence, and was required to pay the costs of prosecution. We affirm.

Pursuant to a search warrant based on an informant's tip, Garza's residence was searched on March 3, 1991. Police discovered 55 bags of marijuana in 1/4-ounce lots, with a combined weight of over 10 ounces. No tax stamps were affixed to the bags as is required by Nebraska law.

Garza was charged with one count of possession of marijuana with intent to deliver and one count of failure to affix tax stamps to the marijuana. Prior to trial, Garza filed a motion to suppress the fruits of the search warrant and a motion to quash or dismiss, which challenged the constitutionality of Nebraska's Marijuana and Controlled Substances Tax Act, Neb.Rev.Stat. §§ 77-4301 to 77-4316 (Reissue 1990) (Tax Stamp Act or act). The district court overruled each motion.

At a bench trial, Garza renewed his objections regarding the constitutionality of the Tax Stamp Act and to the evidence based on the search warrant. Garza's attacks on the act included arguments based on his constitutional right against self-incrimination and on Nebraska's constitutional provisions on tax valuation. Garza also objected regarding the validity of the search warrant, noting that the presenting officer had added language to the affidavit after being questioned by the judge who issued the warrant. Garza argued that the affidavit did not provide probable cause to issue the warrant. The court overruled each objection and found Garza guilty on both counts. Garza then appealed to this court.

The majority of Garza's assignments of error fall into two categories: those dealing with the district court's ruling on the motion to quash and those dealing with the court's ruling on the motion to suppress. With regard to the motion to quash, Garza asserts that the district court erred by overruling the motion because the Tax Stamp Act unconstitutionally (1) violates Garza's right against self-incrimination; (2) levies a personal property tax based on weight, rather than valuation; (3) creates an arbitrary classification of persons who must pay the tax, in violation of equal protection; (4) violates the Due Process Clause as it relates to the assessment of the tax and Garza's right to appeal; and (5) defines "dealer" in a way that is vague, overbroad, and conflicts with § 28-416.

Garza also argues that the district court erred by overruling his motion to suppress the fruits of the search warrant. Garza asserts that the investigating officer's affidavit failed to establish the reliability of the confidential informant and therefore did not provide probable cause to issue the warrant. Finally, Garza argues that the district court abused its discretion by sentencing Garza to imprisonment rather than to probation.

In his motion to quash, Garza did not include the constitutional challenges constituting assignments of error Nos. 3 and 4. At trial Garza objected to the admission of evidence relating to the Tax Stamp Act, renewing the constitutional challenges made in the motion to quash. He did not, however, make any additional arguments as to why the act was unconstitutional.

We have frequently stated, "In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as a trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court." State v. Oldfield, 236 Neb. 433, 438, 461 N.W.2d 554, 559 (1990) (citing State v. Fletcher, 221 Neb. 562, 378 N.W.2d 859 (1985)). Generally, a constitutional question will not be considered on appeal if not properly raised in the trial court. Oldfield, supra. We are not convinced by Garza's argument that a trial-level challenge to the constitutionality of a statute on one basis allows the challenger to assert different constitutional attacks on appeal.

While it is true that constitutionality is itself an issue, a mere blanket challenge is not specific enough to allow the trial court to make an informed ruling on the constitutional validity of a statute. Neither does a challenge based on one constitutional clause enable the court to adequately consider whether a statute violates some other constitutional provision. Objections and challenges that lack specificity rob the trial court of its role as a decisionmaker. It is not an appellate court's duty to assume that role in the first instance. To be properly raised at the appellate court level, the specific constitutional challenge must have been presented to the trial court for disposition.

Nor are we persuaded by Garza's argument that his third and fourth assignments of error were clearly evident from the record and constituted plain error. The interplay between the Tax Stamp Act and the Nebraska and U.S. Constitutions allows countless "arguments" about constitutional violations. None of those arguments, however, including those in assignments Nos. 3 and 4, are plainly evident. Garza failed to raise these challenges at the trial level; we will not address them here.

Garza argues that his motion to quash count II should have been granted because the Tax Stamp Act is unconstitutional. He first argues that the act violates his right to be free from compulsory self-incrimination, as guaranteed by the Fifth Amendment to the U.S. Constitution and Neb. Const. art. I, § 12 (hereinafter jointly...