State v. Hall, 94-2848-CR

• Decision Date: 14 September 1995
• Docket Number: No. 94-2848-CR,94-2848-CR
• Citation: 196 Wis.2d 850,540 N.W.2d 219
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Darryl J. HALL, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 219

540 N.W.2d 219

196 Wis.2d 850

STATE of Wisconsin, Plaintiff-Respondent, v. Darryl J. HALL, Defendant-Appellant. ^d

No. 94-2848-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 10, 1995.

Opinion Released Sept. 14, 1995.

Opinion Filed Sept. 14, 1995.

For the defendant-appellant the cause was submitted on the briefs of Jerome F. Buting of Buting & Williams, S.C. of Brookfield

For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and G.M. Posner-Weber, assistant attorney general.

Before DYKMAN, SUNDBY, and VERGERONT, JJ.

VERGERONT, Judge.

Darryl Hall appeals from a judgment convicting him of two counts of delivering cocaine base within 1,000 feet of school premises, second or subsequent offense, contrary to §§ 161.41(1)(cm)4, ¹ 161.48 and 161.49, STATS., and two counts of failing to comply with Wisconsin's drug tax stamp law, contrary to §§ 139.87-139.95, STATS.

Hall raises the following issues on appeal: (1) whether the "affix and display" provision of the drug tax stamp law violated his right against compelled self-incrimination guaranteed by the Wisconsin and United States Constitutions; (2) whether the "payment" provision of the drug tax stamp law, as implemented by the Wisconsin Department of Revenue, violated his right against compelled self-incrimination guaranteed by the Wisconsin and United States Constitutions; (3) whether his convictions for both the delivery of cocaine base counts and the drug tax stamp counts violated his constitutional right to be free from double jeopardy; (4) whether the term "premises" in the penalty-enhancing provisions of § 161.49(1), STATS., is unconstitutionally vague; (5) whether the statutory disparity in potential penalties for cocaine base and cocaine powder offenses that existed at the time of Hall's sentencing violated his right to equal protection under the Wisconsin and United States Constitutions; (6) whether his due process rights were violated by the delay between his first offense and when he was charged; (7) whether the pretrial photographic identification procedure was impermissibly suggestive; and (8) whether the trial court erroneously exercised its discretion in allowing testimony of Hall's threat to kill a police officer. We reject each of Hall's arguments and affirm the judgment of conviction.

BACKGROUND

The charges against Hall arose out of two purchases of cocaine base from Hall by Wayne Strong, a City of Madison police officer working undercover in the Town of Madison. Strong was working under the supervision of Detective Tim Ritter. At some time prior to May 11, 1993, Strong met with Ritter to discuss an individual, known on the street as "Charlie Brown," who was suspected of dealing drugs. Charlie Brown was an alias used by Hall. Ritter informed Strong that Hall was a short, stocky, light-skinned black male approximately twenty-five years of age.

At some time after 7:00 p.m. on May 11, 1993, Strong and a confidential informant went to a townhouse in the Town of Madison to set up an undercover purchase of cocaine base from Hall. The townhouse was within 1,000 feet of a school property line. After stationing himself in an upstairs bedroom of the townhouse, Strong instructed the informant to look for Hall. Hall eventually arrived at the townhouse and, with the informant's assistance, Strong purchased two ounces of cocaine base from Hall. Strong turned the cocaine base over to Detective Ritter later that evening.

The following day, Strong met with Ritter. Ritter showed Strong a single mug shot of Hall and asked Strong if he recognized the person in the photograph. Strong stated On the evening of June 3, 1993, Strong returned to the townhouse in the Town of Madison and, with the informant's assistance, purchased another two ounces of cocaine base from Hall. At some point during the purchase, Hall asked Strong whether he was a "cop" and insisted that Strong lift up his shirt so he could check for a wire. Strong refused to lift up his shirt. Strong testified, over defense counsel's objection, that Hall stated that if he discovered Strong were a police officer, Strong would be murdered or killed. After the purchase, Strong returned the cocaine base to Ritter. Criminal charges were issued against Hall on June 21, 1993.

that it was the person from whom he had purchased cocaine base the previous evening.

Following a jury trial, Hall was convicted on all counts. The trial court sentenced Hall to two consecutive thirty-year prison terms for the two counts of delivering cocaine base within 1,000 feet of school premises, second or subsequent offense, and to two consecutive three-year prison terms for the two drug tax stamp counts, to run concurrent with the two thirty-year terms. Further facts will be stated below as necessary.

"AFFIX AND DISPLAY" PROVISION OF THE TAX STAMP STATUTE

Hall contends that Wisconsin's drug tax stamp statute violates his right against compelled self-incrimination by requiring a dealer of controlled substances to affix and display tax stamps on his or her controlled substances as evidence of payment of the tax. He argues that the act of affixing and displaying the tax stamps is an incriminating testimonial communication that he or she is knowingly and intentionally dealing in a particular quantity of unlawful drugs.

Under the drug tax stamp statute, an occupational tax is imposed on drug dealers, ² to be paid immediately upon acquisition or possession of a controlled substance. Section 139.88, STATS. The tax is paid by purchasing stamps from the Department of Revenue (the "payment provision"). The tax stamps must then be affixed to and displayed on the drugs (the "affix and display provision") as evidence of payment of the tax. Section 139.89, STATS. Failure to pay the tax exposes the dealer to a possible five-year prison term, a fine of not more than $10,000, or both. Section 139.95(2), STATS.

Acquisition of tax stamps does not create immunity for a dealer from criminal prosecution. Section 139.90, STATS. However, dealers are not required to provide any identifying information in connection with the purchase of the stamps. Section 139.91, STATS. Moreover, no information obtained by the department may be used against a dealer in any criminal proceeding unless that information has been independently obtained, except in connection with a proceeding involving possession of a schedule I or schedule II controlled substance on which the tax has not been paid or in connection with taxes due. Id.

Both the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution prohibit compelled self-incrimination. Whether or not a statute violates these constitutional provisions presents a question of law that we review de novo. See State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989).

The United States Supreme Court addressed the right against compelled self-incrimination in the context of the government's ability to tax illegal conduct in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). There, the defendant was convicted of violating federal wagering statutes which required persons engaged in professional gambling to pay an occupational tax and to register with the Internal Revenue Service. The The Court first stated that wagering is "an area permeated with criminal statutes" and that those engaged in wagering "are a group inherently suspect of criminal activities." Marchetti, 390 U.S. at 47, 88 S.Ct. at 702. Then, relying on the fact that information obtained as a consequence of compliance with the federal wagering tax statutes was readily available to assist the efforts of state and federal authorities in prosecuting gambling violations, the Court concluded:

defendant sought to arrest judgment on the ground that these statutory obligations violated his Fifth Amendment right against self-incrimination because they significantly enhanced the likelihood that those who complied with the provisions would be successfully [196 Wis.2d 862] prosecuted for violating state and federal anti-gambling laws.

In these circumstances, it can scarcely be denied that the obligation to register and to pay the occupational tax created for petitioner "real and appreciable," and not merely "imaginary and unsubstantial," hazards of self-incrimination. Petitioner was confronted by a comprehensive system of federal and state prohibitions against wagering activities; he was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant "link in a chain" of evidence tending to establish his guilt.

Marchetti, 390 U.S. at 48, 88 S.Ct. at 702-03 (citations omitted; footnotes omitted). The Court held that the defendant's plea of the Fifth Amendment privilege provided a complete defense to a prosecution for failure to register and pay the occupational tax on wagers as required by the statutes. Id. at 60-61, 88 S.Ct. at 708-09.

In State v. Heredia, 172 Wis.2d 479, 493 N.W.2d 404 (Ct.App.1992), cert. denied, 508 U.S. 927, 113 S.Ct. 2386, 124 L.Ed.2d 289 (1993), we distinguished Marchetti in holding that the payment provision of Wisconsin's drug tax stamp statute, on its face, does not violate a defendant's constitutional right against compelled self-incrimination. Id. at 485, 493 N.W.2d at 407. We concluded that, unlike in Marchetti, the drug tax stamp statute "both contemplates and permits the anonymous payment of the tax," id. at 485, 493 N.W.2d at 407, and, therefore, "does not subject those who comply with its provisions to compelled self-incrimination," id. at 484, 493 N.W.2d at 407. In so concluding, we relied on § 139.91, STATS., which provides that "[d]ealers may not be required to provide any identifying information in connection with the purchase of stamps." Id. at 485, ...