State v. Lange
| Decision Date | 26 April 1995 |
| Docket Number | No. 93-1028,93-1028 |
| Citation | 531 N.W.2d 108 |
| Parties | STATE of Iowa, Appellee, v. Brian Joseph LANGE, Appellant. |
| Court | Iowa Supreme Court |
Linda Del Gallo, State Appellate Defender, and Andi S. Lipman, Asst. State Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., Robert P. Ewald, Asst. Atty. Gen., Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Asst. County Atty., for appellee.
Considered by LARSON, P.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.
In a bench trial, the district court found Brian Joseph Lange guilty of violating Iowa Code section 421A.12 (1991) (). He appeals from the judgment of conviction and sentence, raising four issues. First, Lange contends the district court violated his due process rights when it denied his motion based upon prosecutorial delay. Second, he believes the court erred by twice refusing to allow him to make offers of proof. Third, he argues the court's entry of judgment on the drug tax stamp conviction constituted double punishment in violation of his right against double jeopardy. He argues his right against double jeopardy was violated because he was previously assessed and had paid all drug stamp tax assessments. Last, he argues that we should overrule State v. Lange, 495 N.W.2d 105 (Iowa 1992) (Lange I ). In that appeal, the State successfully challenged a district court ruling that dismissed the drug tax stamp charge on double jeopardy grounds. In Lange I, we held that Lange waived his double jeopardy claim when he resisted consolidation of the drug tax stamp charge with his prosecution for manufacture of a controlled substance involving the same marijuana. We affirm on all four issues.
On April 1, 1991, Waterloo police officers Jeffrey Duggan and Randall Chapman went to an apartment shared by Lange and Brenda Weekley at 521 Dundee. They were looking for Pat Henson regarding a domestic abuse report. Weekley was home alone, and met the officers at the door. She told Duggan and Chapman that Henson was not there, but gave them permission to come in and look for him.
Duggan's search took him to the bedroom of Lange and Weekley. The closet door was open. Clothing hanging there was visible and in open display. Duggan believed that Henson might be hiding in the closet. As Duggan began to move the clothes aside, he discovered two potted marijuana plants.
Lange arrived home shortly after this discovery, and was arrested for manufacture of marijuana. There was no drug tax stamp affixed to either plant.
On May 7, 1991, the State filed a trial information charging Lange with manufacture of a controlled substance (marijuana) in violation of Iowa Code section 204.401(1)(d). The district court set a trial date. Later the court continued the trial date.
On October 21 the State filed a complaint accusing Lange of failure to affix a drug tax stamp in violation of Iowa Code section 421A.12. This charge also arose from evidence taken in the April 1 search.
On October 30 the State filed a motion to consolidate the manufacture and drug tax stamp charges. On November 6 the State filed a trial information charging Lange with failure to affix a drug tax stamp in violation of Iowa Code section 421A.12. At the November 15 hearing on the State's motion to consolidate, Lange resisted the motion because (1) it was untimely, (2) there was no good cause for the State's delay in filing the drug tax stamp charge, and (3) Lange was willing to waive his right to a jury trial on the manufacture charge but not on the drug tax stamp charge.
Although the county attorney argued the State would have problems with Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), if the court refused to consolidate, District Judge Joseph C. Keefe denied the State's motion to consolidate.
On January 8, 1992, District Judge James C. Bauch heard the manufacture charge in a bench trial on the minutes of testimony in the trial information. On January 21 Judge Bauch found Lange guilty as charged. Judge Bauch also set the drug tax stamp charge for jury trial.
On January 24 Lange moved to dismiss the drug tax stamp charge based on double jeopardy and prosecutorial delay. District Associate Judge Joseph Moothart dismissed the drug tax stamp charge as being in violation of the Double Jeopardy Clause of the Fifth Amendment to the federal Constitution. The Judge did not address the prosecutorial delay issue.
The State appealed. We held that Lange waived his double jeopardy claims on the charge of failure to affix a drug tax stamp by successfully challenging the State's motion to consolidate the manufacture and drug tax stamp charges and electing to try the two cases separately. See Lange I, 495 N.W.2d at 108.
We remanded the case for trial on the drug tax stamp charge. However, we noted that before trial, the district court should address the motion to dismiss based upon prosecutorial delay. Id.
On remand, the district court heard Lange's motion to dismiss the drug tax stamp charge based upon prosecutorial delay. Following the hearing, District Judge L.D. Lybbert denied the motion.
The case proceeded to a bench trial. During trial, District Judge George L. Stigler denied defense counsel an opportunity to make offers of proof in two instances. The first was during defense counsel's cross-examination of a state revenue agent. This offer centered on the availability of drug tax stamps and the procedures for actually purchasing a drug tax stamp. The second was during defense counsel's examination of an investigating officer during Lange's case-in-chief. This offer went to the procedures the officer normally followed in other cases of drug tax stamp violations.
The court found Lange guilty of the drug tax stamp charge. At sentencing before Judge Bauch, Lange challenged the entry of judgment on his conviction of the drug tax stamp charge on double jeopardy grounds. Lange told the court that before trial on the drug tax stamp charge he had been assessed and had paid $1085 in drug tax stamp assessments on the drugs that formed the basis for the charge. Any additional subsequent punishment, Lange argued, would constitute double jeopardy in violation of his right against double jeopardy.
Judge Bauch denied the challenge and entered judgment and sentence on the drug tax stamp charge. The judge sentenced Lange to a term of imprisonment not to exceed five years. The judge then suspended the sentence and placed Lange on probation for two to five years. In addition, the judge ordered this sentence to run concurrently with Lange's sentence on the manufacture charge.
Lange contends the State's seven month delay in arresting and charging him on the drug tax stamp charge violates his rights to due process. As to this issue, Lange alleges the denial of a constitutional right. Our review is therefore de novo. See State v. Gallup, 500 N.W.2d 437, 441 (Iowa 1993).
Lange's claim is not one for denial of speedy indictment or speedy trial under the Iowa Rules of Criminal Procedure. See Iowa R.Crim.P. 27. Lange's claim is a due process one under the Fifth Amendment to the federal Constitution as applied to the states through the Fourteenth Amendment. State v. Hall, 395 N.W.2d 640, 642 (Iowa 1986). This claim is based on alleged unreasonable delay between the time the offense was committed and the time Lange was arrested and charged with the drug tax stamp offense. See State v. Williams, 264 N.W.2d 779, 783-84 (Iowa 1978).
The statute of limitations for returning an indictment on a drug tax stamp charge is six years. See Iowa Code § 421A.12. So Lange's indictment on this offense was within the statutory period.
The limitations period is not the only standard for determining whether a defendant has been denied due process under the federal Constitution. The length of the delay and the reason for it must be balanced against the resulting prejudice against the defendant. Williams, 264 N.W.2d at 782-83.
Before a defendant can claim relief for prosecutorial delay, the record must establish two conditions. First, the delay is unreasonable and without justification. Second, the delay must have resulted in actual prejudice to the defendant's defense. State v. Sunclades, 305 N.W.2d 491, 494 (Iowa 1981). The actual prejudice must result from the State's "intentional attempt to gain a tactical advantage by delaying the initiation of charges." State v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987). The due process protection is guaranteed to defendants to assure that the State will not employ tricks to gain such an advantage over defendants. Hall, 395 N.W.2d at 643.
A. Unreasonable delay. Lange contends here, as he did in district court, that no proper reason existed for the seven month prosecutorial delay on the drug tax stamp charge. Lange points out that all evidence relating to the charge was seized and available to the State when he was arrested in April 1991. At this time, over twenty-eight grams of marijuana were found in his home along with two pots containing three to five marijuana plants. The police were aware the drug tax stamps were not affixed at the time of the seizure. So, he concludes, no reason existed to explain the State's failure to determine whether the plants seized contained fourteen and one-half additional grams of marijuana for purposes of filing or disposing of a drug tax stamp charge. See Iowa Code §§ 421A.1(3)(b) (); 421A.3 (dealer must pay stamp tax and affix stamp to taxable substance); 421A.7(1) (tax imposed on dealer at rate of five dollars on each gram of marijuana or each portion of a gram); 421A.12 (dealer possessing taxable substance without affixing stamp is guilty of class "D" felony).
In our de novo review, we agree with the district court that the...
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