State v. Shields, No. W2007-01861-CCA-R9-CD (Tenn. Crim. App. 10/7/2008)
| Decision Date | 07 October 2008 |
| Docket Number | No. W2007-01861-CCA-R9-CD.,W2007-01861-CCA-R9-CD. |
| Parties | STATE OF TENNESSEE v. JOHN SHIELDS. |
| Court | Tennessee Court of Criminal Appeals |
Jeffrey Jones, Bartlett, Tennessee, for the appellant, John Shields.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall and D. Kelly Thomas, Jr., JJ., joined.
The appellant, John Shields, was indicted in January 2007 for possession of cocaine with intent to sell, possession of cocaine with intent to deliver, and driving on a suspended license. In this interlocutory appeal, he argues that the instant criminal prosecution violates double jeopardy protections under both the state and federal constitutions because the State has previously assessed and levied a tax under the Tennessee Taxation of Unauthorized Substances Act for the same cocaine. He asserts that because the tax is punitive in nature, the present prosecution would impose a second punishment for the same offense. Based upon the record and the parties' briefs, we affirm the trial court's order denying the appellant's motion to dismiss the indictment.
According to his January 30, 2007 indictment, the appellant is alleged to have possessed cocaine with intent to sell, possessed cocaine with intent to deliver, and driven on a suspended license, all purportedly occurring on February 25, 2006. On March 1, 2006, the Tennessee Department of Revenue ("DOR") sent a Notice of Assessment and Demand for Payment to the appellant, requiring payment of a $750 tax, $37.50 penalty, and $0.62 in interest for his February 25 possession of an untaxed, unauthorized substance. The Notice states that the assessment was pursuant to Tennessee Code Annotated section 67-4-2801, Tennessee's tax on unauthorized substances. Subsequently, the DOR sent a Levy Notification to the appellant's employer, requiring that it remit fifty percent of the appellant's paycheck until the tax was satisfied. Following his January 2007 indictment, the appellant filed a Motion to Dismiss for Double Jeopardy Violations, arguing that the tax assessment and garnishment constituted jeopardy and, therefore, his subsequent prosecution violated the protections against double jeopardy granted under both the state and federal constitutions. The trial court denied the motion to dismiss, holding that the Tennessee Taxation of Unauthorized Substances Act is not punitive and does not trigger double jeopardy protection.
The appellant contends that his criminal prosecution for possession of cocaine on February 25, 2006, places him in double jeopardy in violation of the United States and Tennessee Constitutions because his wages have already been seized by the DOR under the Tennessee Taxation of Unauthorized Substances Act. In this regard, he asserts that the drug tax is actually a fine or penalty upon illegal activity rather than a purely revenue-raising measure. The State maintains that the drug tax is not a penalty and, therefore, the appellant's subsequent criminal prosecution does not violate the prohibition against double jeopardy. We agree with the State.
Both the federal and state constitutions contain double jeopardy clauses which protect an accused from: (1) a second prosecution following an acquittal; (2) a second prosecution following conviction; and (3) multiple punishments for the same offense. See U.S. Const. amend. V; Tenn. Const. art. I, § 10; State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). Because the assessment of a tax is not a conviction, the appellant's claim relates to the third category. The United States Supreme Court has recognized that a tax can be so punitive that it constitutes a punishment. Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 783, 114 S. Ct. 1937, 1948 (1994) (). Although taxes, unlike other sanctions, are typically motivated by a desire to raise revenue rather than to punish, "a tax is not immune from double jeopardy scrutiny simply because it is a tax." Id. at 779-80, 114 S. Ct. at 1946.
The question of whether a tax constitutes a criminal punishment for double jeopardy purposes is, "at least initially, a matter of statutory construction." Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 493 (1997) (). We look first to how the legislature characterized the sanction. Id. If the legislature has characterized it as a civil, rather than a criminal, penalty, then we examine the sanction's purpose or effect to determine whether either is so punitive as to turn what the legislature intended to be a civil sanction into a criminal punishment. Id. The Supreme Court has set out the following factors, which considered in relation to the legislative intent, guide the determination:
(1) "[w]hether the sanction involves an affirmative disability or restraint";
(2) "whether it has historically been regarded as a punishment";
(3) "whether it comes into play only on a finding of scienter";
(4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence";
(5) "whether the behavior to which it applies is already a crime";
(6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and
(7) "whether it appears excessive in relation to the alternative purpose assigned."
Id. at 99-100, 118 S. Ct. 493 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68 (1963)). None of these Kennedy factors is alone dispositive. Id. at 101, 118 S. Ct. at 494; Kennedy, 372 U.S. at 169, 83 S. Ct. at 568. In supplying these guidelines, the Supreme Court emphasized that "`only the clearest proof'" can overcome the legislative intent that a sanction be considered civil in nature. Hudson, 522 U.S. at 100, 118 S. Ct. 493 (quoting United States v. Ward, 488 U.S. 242, 249, 100 S. Ct. 2636, 2641-42 (1980)).1
The Tennessee Supreme Court has applied the two-part federal test to determine whether a civil sanction is really a punishment for double jeopardy purposes. Stuart v. State Dep't of Safety, 963 S.W.2d 28, 32 (Tenn. 1998) (). Our supreme court described the two prongs as follows:
Under the first prong, we must determine whether the legislature intended forfeiture proceedings to be criminal or civil. Under the second prong, we must consider whether "the clearest proof" demonstrates that, despite legislative intent, the forfeiture proceedings are so punitive in fact that they cannot be legitimately viewed as civil in nature.
Id. ().
Turning to the case before us, the legislature has characterized the Tennessee drug tax as an excise tax imposed upon dealers for the actual or constructive possession of unauthorized substances. Tenn. Code Ann. § 67-4-2803(a). "The tax is payable within forty-eight (48) hours after the dealer acquires actual or constructive possession of a non-tax-paid unauthorized substance, exclusive of Saturdays, Sundays, and legal holidays of this state, in which case the tax is payable on the next working day." Tenn. Code Ann. § 67-4-2806. Upon payment of the tax, the commissioner will issue a stamp, which must be permanently affixed to the controlled substance. Tenn. Code Ann. §§ 67-4-2805(a), -2806. The legislature's stated purpose in enacting the tax is "to generate revenue for state and local law enforcement agencies for use by those agencies to investigate, combat, prevent and reduce drug crimes, and for the general fund." Tenn. Code Ann. § 67-4-2801. The fact that the legislature did not intend for the drug tax to bar subsequent criminal prosecution is expressly set forth: "Nothing in this part may in any manner provide immunity from criminal prosecution for a person who possesses an illegal substance." Tenn. Code Ann. § 67-4-2801. Moreover, the "provisions of this part shall not be construed to confer any immunity from criminal prosecution or conviction for a violation of title 39, chapter 17, part 4, upon any person who voluntarily pays the tax imposed by this part or who otherwise complies with the provisions of this part." Tenn. Code Ann. § 67-4-2810.
Applying the first prong of the federal test, we observe that the Tennessee drug tax on its face reveals a clear legislative intent for the act to be a civil remedy. The plain language of the provisions set out above reveals that the legislature intended the drug tax to raise revenue for drug investigations rather than to punish someone in possession of unauthorized substances. Despite the unambiguous nature of the legislative intent, the second prong of the federal test focuses on whether the actual purpose or effect of the drug tax is punitive. We turn next to the Kennedy factors to determine whether "clearest proof" to overcome the legislature's intent exists.
Whether a sanction creates an "affirmative disability or restraint," as is asked in the first Kennedy factor, relates to the type of impact it has on the person sanctioned. Hudson, 522 U.S. at 104, 118 S. Ct. at 495. Whether this factor...
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