Petition — Atkinson v. North Carolina

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)

SEP 12 1977

IN THE MICHAEL RODAK, JR., CLERK

-———

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. Va= 38 } «

LAMONT ATKINSON,

Petitioner,

Vv.

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF NORTH

CAROLINA AND THE COURT OF

APPEALS OF NORTH CAROLINA

THOMAS F. LOF LIN III

Loflin & Loflin

P. O. Box 1315

Durham, North Carolina 27702

Counsel for Petitioner

INDEX

Opinions Below ....sseceeeeeceees

JUrladiction ..cccccccccscserscces

Questions Presented .......eeeees

Constitutional Provisions Involved ..

Statement of the Case .....seevees

Reasons for Granting the Writs... 13

CONClUBION .eccsccccccveseecceees SO

Appendix:

Judgment Dismissing Appeal

Ex Mero Motu and Denving

Petition for Discretionary

Review

(June 17, 1977) .eceseeeveveees Al

North Carolina Court of

Appeals' Judgment and

Opinion

(May 18, 1977) ..csceeseeeceees A

TABLE OF AUTHORITIES

Blockburger v. United States,

284 U.S. 299 (1932)... 13,14,21,23

Brady v. Maryland,

373 U.S. 83 (1963).... 24,29, 31

Brown Vv. Ohio, U. s. ,

No. 75- 6933, 45 U. 8. Le Ww.

4697 (June 16, 1977).. 13,14,15,16,23

ofe

Fairman v. State, 425 P. 2d 342

(Nev. DT? cciebes 6nbedeee oes

Jackson v. State, 533 P. 2d 1

(Wyo. STOP cc ecede te dvesose

Jason v. State, 9 Md. App. 102,

262 A. 2d 774 (1970) wee eeenes

Kukiis v. Commonwealth, 290

N. E. 2d 155 (Mass. 1972)....

Parham v. State, 329 So. 2d 365

(Fla. App. Sere sbeesed esos de

People v. Brown, 40 Dl. App. 3d

562, 352 N.E.2d 15 (1976)....

People v. Lugo, 53 A.D. 2d 650,

384 N. Y,.S,2d 492 (1976).....

People v. Martin, 398 Mich, 303,

247 N.W.2d 303 (1976) .......

People v. Roberts, 254 P, 2d 501,

505 (Cal. WOO) coccecocoesoceos

Pointer v. Texas, 380 U.S, 400

21

23

21

22

21

18

CLOGS) cccceccccscccese 24,27,28

State v. Allen, 292 A, 2d 167,

172 (Me. WOTEP cocccceceesese

State v. Duplain, 102 Ariz, 100,

425 P. 2d 570 (1967) .....00es

State v. Estevez, 232 Ga. 316,

206 S.E.2d 475 (1974) ...4.46.

«Li-

19

18

19

State v. Reed, 517 P. 2d 318

(Ore. App. | rr 23

Thompson v. State, 290 N.E,2d

724 (Ind. BETED beeceboesosocese 19

United States v. Agurs,

427 U.S. 97 (1976)..... 24,29,31

United States v. Atkinson, 512

F.2d 1235 (4th Cir. 1975),...... 18

United States v. Curry, 512 F, 2d

1299 (4th Cir.) cert. den.

423 U.S. Bae GUE? goccoeceeces 18

United States v. Stevens, 521

F. 2d 334 (6th Cir. 1975)....... 18

~ili-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

LAMONT ATKINSON,

Petitioner,

Vv.

STATE OF NORTH CAROLINA,

Respondent.

PETITION FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF NORTH

CAROLINA AND THE COURT OF

APPEALS OF NORTH CAROLINA

The Petitioner, Lamont Atkinson, respect-

fully prays that writs of certiorari issue to re-

view the judgment and order of the Supreme

Court of North Carolina entered in this proceed-

ing on June 13, 1977, denying the Petitioner's

petition for discretionary review and dismissing

the Petitioner's appeal, and to review the judg-

ment and opinion of the Couri of Appeals of

North Carolina entered in this proceeding on

May 18, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals of North

Carolina is reported at N.C. App. P

ASS S.E.2d 2397 (1977), and is reproduced

in the Appendix infra at A3- A6. The judgment

entered by the Supreme Court of North Carolina

denying the Petitioner's petition for discretionary

review and dismissing the Petitioner's appeal

is reportedat__N.C. » ASS S.E. 2d

_784 11977), and is reproduced in the Appendix

infra at Al - A2.

JURISDICTION

The judgment of the Supreme Court of North

Carolina was entered June 13, 1977, and this

petition for writs of certiorari was filed within

ninety (90) days of that date. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257

(3).

QUESTIONS PRESENTED

The Petitioner was brought to trial upon in-

dictments alleging that he (1) unlawfully pos-

sessed with the intent to sell and deliver the con-

trolled substance heroin, in violation of the North

Carolina Control Substances Act, N.C.G.S.

§ 90-95(a)(1), and that he (2) unlawfully did sell

and deliver the controlled substance heroin to

a named person, Johnnie L. Price, also in

violation of the North Carolina Controlled Sub-

stances Act, N.C.G.S. § 90-95(a)(l). The Pe-

titioner was convicted for the commission of

each of the alleged offenses, and was sentenced

to serve two consecutive terms of nine years

imprisonment in punishment therefor. The

evidence tending to support the Petitioner's con-

victions for the offenses of possession of heroin

with intent to sell and deliver, and the sale and

delivery of heroin, was identical, in that each

of the charges was based on the alleged occur-

rence of a single sale or delivery of the con-

trolled substance heroin, which transpired at a

single point intime. The convictions and the

two consecutive sentences of nine years im-

prisonment which were imposed on the Peti-

tioner for the offenses of possession of heroin

with intent to sell or deliver, and the sale and

delivery of heroin, were based on proof of the

sole and identical transaction involving that con-

trolled substance.

At the Petitioner's trial, State's witness

Johnnie L. Price, a Drug Enforcement Ad-

ministration agent, was allowed to testify, over

the Petitioner's timely objections, concerning

the denominations of and the number of bills

of paper money, totalling approximately

$6,000, which he allegedly transferred to the

Petitioner in exchange for a quantity of heroin.

Price was allowed to testify on the basis of his

"present recollection refreshed” after he re-

ferred to a list which purportedly catalogued

the denominations of, total number of, and the

serial numbers of the $6,000 which he had

allegedly given the Petitioner. That master

list had been compiled from several original

lists of the serial numbers and denominations

of the money which had been prepared by a

number of police officers and agents. Price

had never checked the lists which had been

prepared by the other persons for the accuracy

of the data which they contained by making com-

parisons against the bills of money themselves.

After the master list of data had been compiled

by a secretary the original lists were des-

troyed and were not available at the Petitioner's

trial.

From these facts and in this setting, the

questions presented for review are:

l. Whether the convictions aad consecutive

prison sentences for the offenses of the pos-

session of a controlled substance with intent to

sell and deliver, and the sale and delivery of

a controlled substance, violated the Peti-

tioner's right to not be subjected to multiple

punishment for the commission of a single

offense, when the convictions for the two

crimes were based on proof of a single trans-

action which occurred at a single point in

time and involved the same controlled sub-

stance ?

2. Whether the admission of material testi-

mony from a State's witness, concerning his

"present recollection" of the denominations of

and the number of bills of paper money which

he allegedly transferred to the Petitioner in

exchange for a quantity of heroin, violated the

Petitioner's rights to confront his accusing

witnesses and to not be deprived of his liberty

without due process of law, when that testify-

ing witness had no independent knowledge of

the denominations and number of bills about

which he testified, and when the original lists

of paper on which that information had been

recorded by numerous other police officers

and agents, from which a ‘master list" of

data was allegedly compiled by a secretary,

had been destroyed by agents of the State and

were unavailable at trial?

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Amendment V:

- nor shall any person be subject for

the same offence to be twice put in jeopardy

of life or limb. .. ."

United States Constitution, Amendment VI:

‘In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted

with the witnesses against him... .”

United States Constitution, Amendment XIV:

", . » nor shall any State deprive any per-

son of life, liberty, or property, without due

process of law... .”

STATEMENT OF THE CASE

The Petitioner, Lamont Atkinson, was

. —_—

ae

—_—

convicted after trial by jury in the Superior

Court of Wayne County, North Carolina,

for the possession of a controlled substance

with intent to sell and deliver, and for the sale

and delivery of a controlled substance, in vio-

lation of the North Carolina Controlled Sub-

stances A.t, N.C.G.S. § 90-95(a)(1). He

was sentenced to serve a term of nine-years

imprisonment following his conviction for the

offense of the sale and delivery of a controlled

substance, and, at the expiration of that sen-

tence, to serve a consecutive term of nine-

years imprisonment for his conviction for the

offense of the possession of a controlled sub-

stance with the intent to sell and deliver. The

Petitioner appealed his convictions and sen-

tences to the North Carolina Court of Appeals,

and that Court affirmed the judgment entered

by the trial court in all respects. The Su-

preme Court of North Carolina denied the Peti-

tioner's petition for discretionary review,

and dismissed his appeal ex mero motu.

The evidence adduced at the Petitioner's

trial tended to show that Drug Enforcement

Administration agent Johnnie L. Price pur-

chased 26,7 grams of heroin from the Peti-

tioner in exchange for $6, 000 which had been

supplied to Price by the Government. The

heroin buy took place in the Petitioner's apart-

ment on August 26, 1975. The testimony

which was offered to prove both of the offenses

of possession of heroin with intent to sell and

deliver, and the sale and delivery of heroin,

was limited exclusively to the single trans-

action whereby the Petitioner allegedly trans-

ferred the 26.7 grams of heroin to Price in

exchange for the $6,000, The Petitioner was

arrested for the commission of the alleged

offenses on October 20 or 21, 1975,

Agent Price testified that the money which

he used to purchase the heroin from the Peti-

tioner was supplied to him by Special Agent

Donald Ashton, a member of the United

States Department of Justice, Drug Enforce-

ment Administration. Price and four other

drug enforcement agents and police officers

each counted a portion of the money which

Ashton had supplied, by recording the serial

numbers of the bills and noting their denomi-

nations. Each of the agents turned his list

over to Price, who did not check the accuracy

of those lists against the money itself. Price

evidently did count the total amount of money

supplied to him and found it to match the

total amount indicated on all of the lists. The

original lists prepared by Price and the four

other persons were given to Price's secre-

tary. The data contained on those lists was

allegedly transcribed and compiled into a

single master list by the secretary, accord-

ing to denominations and serial numbers.

The original lists were then destroyed.

At the Peti:.cner's trial, Price was allowed

to refer to the master list typed by the secre-

tary which contained the serial numbers and

denominations of the $6,000, which had

allegedly been supplied to Price and trans-

ferred to the Petitioner, in order to "refresh

his recollection" as to the number of and de-

nominations of the bills of money supplied

to Price. Price's testimony was admitted

over the Petitioner's timely objections.

Price testified, based on his present re-

collection and after consulting the master

list, that he transferred to the Petitioner

thirty $100 bills, approximately forty $50

bills and forty $20 bills. None of the other

agents or officers who had prepared the ori-

ginal lists appeared in court to testify at the

Petitioner's trial. All of the original lists

containing the primary, or original data about

which Price testified, had been destroyed

prior to trial and were not available for the

Petitioner's inspection at any time.

The Petitioner raised and argued his con-

tention that his convictions and consecutive

sentences for the possession of a controlled

substance with intent to sell and deliver and

for the sale and delivery of a controlled sub-

stance, were unlawful, and constituted the

imposition of multiple punishment for the

commission of a single offense, before the

Court of Appeals of North Carolina and before

the Supreme Court of North Carolina. The

Petitioner objected to and excepted to the

rulings and judgments of the trial court in

-ll-

adjudging the Petitioner guilty of the charged

offenses and sentencing him therefor. This

issue was preserved as Defendant's Assign-

ment of Error XV, p. 116 of the Record on

Appeal submitted to the North Carolina Court

of Appeals. The issue was briefed and pre-

sented to the North Carolina Court of Appeals

as Question for Review XIII, p. ll of the

Defendant-Appellant's Brief. The Petitioner

presented this issue in his Petition to the

North Carolina Supreme Court for Discre-

tionary Review of the Court of Appeals'

Judgment at p. 1, Paragraph I of that Peti-

tion. He also presented this issue upon his

appeal to the North Carolina Supreme Court

at p. l, Paragraph I of his Notice of Appeal

to the North Carolina Supreme Court.

The Petitioner objected in timely fashion

to the admission of the witness Price's testi-

mony concerning the number and denomina-

tions of the bills of paper money which he

had allegedly transferred to the Petitioner in

exchange for the heroin. The Petitioner

preserved his objections, and the issues

there involved, in his Exceptions numbers

2-5 and 7 - 13, found at pages 33, 35-36

of the Record on Appeal submitted to the

North Carolina Cart of Appeals. These Ex-

ceptions were grouped under Assignment of

Error Il, at p. 115 of the Record on Appeal

submitted to the North Carolina Court of

Appeals under the heading ''To the Ad-

mission in Evidence Over the Objection of

the Defendant of Testimony of the Witness

Price as to the Serial Numbers of the

Currency Allegedly Paid to the Defendant. "

This issue was preserved and briefed before

the North Carolina Court of Appeals as

Question for Review II, p. 3 of the Defendant-

Appellant's Brief. The Petitioner presented

this issue in his Petition to the North Carolina

Supreme Court for Discretionary Review of

the Court of Appeals' Judgment, at p. 10,

Paragraph II of that Petition. He also pre-

sented this issue upon his appeal to the

North Carolina Supreme Court at p. 2,

——

—— i

Paragraph II of his Notice of Appeal to the

North Carolina Supreme Court.

REASONS FOR GRANTING THE WRITS

1. The writs should issue because the de-

cisions of the state courts, in upholding the

Petitioner's convictions and consecutive sen-

tences for the offenses of the possession of

a controlled substance with intent to sell and

deliver, and the sale and delivery of a con-

trolled substance, when both convictions and

sentences were based on the same alleged

transaction, occurring at a single point in

time and involving the same controlled sub-

stance, are in conflict with this Court's

decisions in Brown v. Ohio, U.S. se,

No. 75-6933 (June 16, 1977) and Blockburger

v. United States, 284 U.S. 299 (1932).

In Brown v. Ohio, U.S. » No.

75-6933, 45 U.S.L.W. 4697, 4699 (June 16,

1977), the Court reiterated the test for de-

termining whether two criminal offenses are

sufficiently distinguishable to permit the im-

position of cumulative punishment which was

first set forth in Blockburger v. United

States, 284 U.S. 299, 304 (1932),

The applicable rule is that

where the same act or trans-

action constitutes a violation

of two distinct statutory pro-

visions, the test to be

applied to determine whether

there are two offenses or

only one, is whether each

provision requires proof of

a fact which the other does

Note « o «

In Brown v. Ohio the Court determined that

successive trials and convictions, and the

imposition of cumulative punishments for

the offenses of joyriding and auto theft, vio-

lated the defendant's Fifth and Fourteenth

Amendment rights to be free from being

twice placed in jeopardy for the same

offense. The double jeopardy violation was

extant even though the alleged offenses were

based on acts which were separated by approx-

imately ten days time. The constitutional vio-

lation was presented because

The lesser offense -- joy-

riding -- requires no proof

beyond that which is re-

quired for conviction of the

greater -- auto theft. The

greater offense is therefore

by definition the “same’”’

for purposes of double jeop-

ardy as any lesser offense

included in it.

Brown v. Ohio, supra, 45 U.S.L.W. at 4699.

The Petitioner's case is strictly analogous

to the circumstance presented in Brown v.

Ohio, supra. The offense of possession of a

controlled substance with intent to sell or

deliver requires no proof beyond that which is

required for the sale or delivery of a con-

trolled substance. I is apparent that one

could not sell or deliver a controlled substance

without first maintaining possession over the

substance with the intent to sell or deliver it.

The Petitioner's convictions and consecutive

sentences, moreover, resulted from proof

of but a single transaction -- a consideration

of some significance to the dissenting Justices

in Brown v. Ohio.

It is possible, of course, that

at some point the two acts

-16-

would be so closely con-

nected in time that the

Double Jeopardy Clause

would require treating them

as one offense. This surely

would be so with respect

to the theft and any simul-

taneous unlawful operation.

Brown v. Ohio, supra, 45 U.S.L.W. at 4700

(Blackmun, J., dissenting)(emphasis added).

For purposes of the Double Jeopardy Clause,

and the proscription against imposing multiple

punishment for the commission of a single

offense, the offenses of the possession of a

controlled substance with intent to sell and

deliver, and the sale and delivery of a con-

trolled substance, constituted the "same"

offense. As the evidence adduced at the

Petitioner's trial established that only a

single transaction involving a controlled

substance transpired, at one point in time,

the Petitioner's convictions and the consecu-

tive sentences imposed for the possession

of a controlled substance with intent to sell

and deliver, and the sale and delivery ofa

-17-

controlled substance, viclated the rights

guaranteed the Petitioner under the Fifth

and Fourteenth Amendments to the United

States Constitution.

In addition to being inconsistent with the

constitutional authority established by the

United States Supreme Court, the decisions

rendered by the North Carolina Court of

Appeals and the North Carolina Supreme

Court are out of line with the overwhelm-

ing authority of the federal and state courts

which have addressed the issue of whether

multiple punishrr.ents may be inflicted for

the commission of two or more statutory

offenses based upon proof of a single illicit

drug transaction. Either as a matter of sta-

tutory construction, to avoid the constitu-

tional issue involved, or as a matter of

constitutional law, a number of the federal

and state courts have invalidated multiple

convictions or punishments based on separate

statutory provisions but involving only a

single controlled substance transaction.

iin

See, e.g., United States v. Stevens, 521

F.2d 334 (6th Cir. 1975); United States v.

Atkinson, 512 F. 2d 1235 (4th Cir. 1975);

United States v. Curry, 512 F. 2d 1299 (4th

Cir.) cert. den., 423 U.S. 832 (1975)(all

holding that there exists a merger of the

offenses of the possession of heroin with

intent to distribute, and the distribution of

heroin, when the alleged offenses involved

but a single illicit transaction, as a matter

of statutory construction of 21 U.S.C. § 841

(a)(l), so that cumulative punishment of the

accused for the two offenses could not

stand); State v. Duplain, 102 Ariz. 100, 425

P. 2d 570 (1967)(en banc )(where defendant's

possession of marijuana is a necessary in-

cident to sale of the substance, he cannot be

convicted for both possession and sale. );

People v. Roberts, 254 P. 2d 501, 505 (Cal.

1953)(where possession and transportation of

narcotics are merely incident to sale, convic-

tions for possession and transportation of the

drug must be reversed. '"[C]o-operative

=

acts constituting but one offense when

committed by the same person at the same

time, when combined, charge but one crime

and but one punishment can be inflicted. "');

State v. Estevez, 232 Ga. 316, 206 S.E. 2d

475 (1974)(where evidence required to con-

vict defendant of illegal sale was the only

evidence showing possession of controlled

substance, defendant's conviction for illegal

possession violated double jeopardy provi-

sion prohibiting multiple convictions, where

one crime is included, as a matter of fact,

within the other); Thompson v. State, 290

N.E, 2d 724 (Ind. 1972)(proscription against

inflicting double punishment for a single

offense prohibits defendant charged with

both possession and sale of dangerous

drugs arising from one set of operative cir-

cumstances from being convicted of both

offenses. ); State v. Allen, 292 A, 2d 167,

172 (Me. 1972)(""We do recognize that cer-

tain proven facts may constitute a violation

of two different statutes or of two distinct

provisions of the same statute. . .. When

-20-

the same acts constitute two offenses, but

these acts are such that the person may

commit either offense without committing

the other, the offenses are different though

the acts be the same and the perpetrator may

be punished twice, once for each offense. ...

It is elementary that the State cannot divide

a single offense into several parts accord-

ing to time and conduct and base separate

prosecutions upon and impose separate

punishments for the various necessary di-

vision of that single crime. ... The

possession of narcotic drugs is an offense

distinct from the sale thereof. But in the

instant case the possession and sale clearly

constituted one single and same act. The

possession, as legally defined, is neces-

sarily a constituent part of the sale, as

legally defined. Where the only possession

of the narcotic drug is that incident to and

necessary for the sale thereof, and it does

not appear tiat there was possession before

or after and apart from such sale, the State

see tyr ate

cannot fragment the accused's involvement

into separate and distinct acts or trans-

actions to obtain multiple convictions, and

separate convictions under such circum-

stances will not stand." (cites omitted));

Kuklis v. Commonwealth, 290 N. E. 2d 155

(Mass. 1972)(As defendant's convictions for

possession of marijuana and possession of

marijuana with intent to sell involved the

same time, place and type of drugs, they

were duplicitous and obtained in violation

of double jeopardy standards set forth in

Blockburger v. United States, 284 U.S. 299

(1932)); People v. Martin, 398 Mich. 303,

247 N.W. 2d 303 (1976)(defendant's convictions

for both unlawful delivery of heroin and of

possession of heroin, where possession

constituted a necessary incident to the very

delivery for which the defendant was also

convicted, violated constitutional prohibition

against imposing multiple punishment for the

same crime. ); Fairman v. State, 425 P. 2d

342 (Nev. 1967)(defendant's convictions

for both sale and possession of marijuana

arising out of identical transaction were un-

lawful. ); People v. Lugo, 53 A.D. 2d 650,

384 N. Y.S. 2d 492 (1976)(defendant could not

lawfully be convicted for sale and possession

of dangerous drug where he could not have

committed the unlawful sale of the drug

without also having committed the offense

of unlawful possession of the drug. ); Jackson

v. State, 533 P. 2d l(Wyo. 1975)(where

charges of possession of controlled sub-

stance with intent to deliver and delivery of

controlled substance were based on same

factual situation, defendant could not be con-

victed on both counts. ), Cf. Parham v.

State, 329 So. 2d 365 (Fla. App. 1976) (Con-

victions for possession of controlled sub-

stance and possession of prescription drug

without prescription, when same substance

is involved, are unlawful. ); People v. Brown,

40 Ill. App. 3d 562, 352 N.E. 2d 15 (1976)

(defendant's conviction for conspiracy to de-

liver cannabis unlawful where charge arose

-23-

from same conduct which constituted basis

of his conviction for delivery of cannabis. );

Jason v. State, 9 Md. App. 102, 262 A, 2d

774 (1970)(unlawful to convict defendant of

possession of narcotic drug and of having

the same drug in his control. ); State v.

Reed, 517 P. 2d 318 (Ore. App. 1973)(defen-

dant cannot lawfully be convicted of con-

spiring to sell heroin and possessing heroin

where the criminal activity and the con-

spiracy involved the same heroin. ).

In order to bring the judgments rendered

by the Court of Appeals of North Carolina

and the Supreme Court of North Carolina into

line with the authority established by this

Court in Brown v. Ohio, _—sU.S. el,

No. 75-6933 (June 16, 1977) and Blockburger

v. United States, 284 U.S, 299 (1932), and

with the authority of the federal and state

courts as above set forth, and to correct the

serious violations of the Petitioner's consti-

tutional right to not be subjected to multiple

-24-

punishment for the commission of a single

offense, this Court should issue its writs

of certiorari.

2. The writs should issue to correct the

decisions by the North Carolina Court of

Appeals and the North Carolina Supreme

Court, which upheld the trial court's de-

termination that the testimony of the State's

witness Johnnie L. Price concerning the

serial numbers and denominations of bills

of paper money which had allegedly been trans-

ferred to the Petitioner in exchange for a

quantity of heroin was admissible into evi-

dence at the Petitioner's trial, as those de-

cisions were contrary to the principles of

law set forth in Pointer v. Texas, 380 U.S.

400 (1965), United States v. Agurs, 427

U.S. 97 (1976) and Brady v. Maryland, 373

U.S. 83 (1963),

State's witness Johnnie Price was allowed

to testify, over the Petitioner's timely ob-

jections, that he had given the Petitioner

$6, 000 in bills of paper money, in specific

-25-

numbers and denominations, in exchange for

a substance which was later identified to be

26.7 grams of heroin. The witness Price

testified based on his ''present recollection re-

freshed, '' after he was allowed to consult a

list which allegedly contained a cataloguing

of the bills of paper money, by serial number

and denomination, which Price allegedly

transferred to the Petitioner. The Govern-

ment had allegedly supplied $6, 000 to Price

so that he could make a heroin buy from the

Petitioner. Price and four other police

officers and drug enforcement agents each

counted a portion of the alleged $6,000, by

making lists, on separate pieces of paper,

according to the denomination of each bill

and each bill's serial number. These ori-

ginal lists were collected by Price, who

did not verify their accuracy or authenticity

by comparing the notations contained thereon

to the actual bills of money. Price apparently

did check to see whether the total sums of

money reflected on each of the lists equalled

the amount which had allegedly been supplied

to him. The original lists were given toa

secretary, who allegedly compiled the data

onto a single typewritten master list. The

master list, typed by the secretary from

the five individual lists given to her, four of

which were not prepared by Price and which

contained data about which Price had no

personal knowledge, was the list to which

Price was allowed to refer at the Petitioner's

trial to refresh his present recollection"

about the numbers and denominations of the

$6, 000 in bills which he allegedly gave to the

Petitioner. All of the original lists were

destroyed and were not available at the Peti-

tioner's trial. None of the persons, with

the exception of Price, appeared to testify

about the data allegedly contained on the ori-

ginal lists at the Petitioner's trial.

The Petitioner was denied the right to con-

front his accusing witnesses, as guaranteed

him by the Sixth Amendment to the United

States Constitution, made applicable to the

-27-

States through the Fourteenth Amendment

in Pointer v. Texas, 380 U.S, 400 (1965),

by the admission of testimony through the

witness Price concerning the information

about the bills of money which he allegedly

transferred to the Petitioner, which had

allegedly been gathered and supplied by

other persons who did not testify at the Peti-

tioner's trial and about which Price had no

independent knowledge. The evidence con-

cerning the number and the denominations

of the bills which was admitted through

Price's testimony was supplied by persons

who were not present in court to be sub-

mitted to cross-examination and who were

not under oath at the time which they allegedly

supplied the data concerning the money which

was transferred to the Petitioner. The agents

and police officers who allegedly compiled the

lists containing the denominations and serial

numbersof the $6, 000 which allegedly changed

hands in this case were, in a very real sense,

accusing witnesses against the Petitioner.

By allowing Price to testify from his "present

recollection" about facts of which he had no

independent personal knowledge, the courts

of the State of North Carolina denied the Peti-

tioner his right to confront his accusing wit-

nesses, contrary to the mandate of Pointer v.

Texas, supra, and in manifest denial of the

rights guaranteed the Petitioner under the

Sixth and Fourteenth Amendments to the

United States Constitution.

The original lists compiled by the several

police officers and agents, on which the pri-

mary data concerning the denominations and

numbers of bills of money which were

allegedly transferred to the Petitioner was

contained, were destroyed while in the custody

of Drug Enforcement Administration agent

Price. The master list which was allegedly

prepared from the original lists could not

serve, of course, as an adequate substitute

for the primary data which was gathered.

The destruction of the original lists, on

which was contained evidence of a material

-29-

nature, which might well have created a

reasonable doubt about the Petitioner's guilt

which did not otherwise exist, caused a viola-

tion of the Petitioner's right to not be de-

prived of his liberty without due process of

law, as guaranteed him under the Four-

teenth Amendment to the United States Consti-

tution. The principles of law established in

United States v. Agurs, 427 U.S. 97 (1976)

and Brady v. Maryland, 373 U.S. 83 (1963)

were contravened by allowing the Petitioner's

convictions to stand following the destruction

of the original and primary lists of informa-

tion prior to the Petitioner's trial by a drug

enforcement officer and an agent of the

State of North Carolina. The original lists

of serial numbers and denominations might

have been used to impeach the credibility

and veracity of the witness Price, and might

have undermined the entirety of the State's

case against the Petitioner by demonstrating

a fundamental variance between the facts of

the undercover operation as testified to by

the alleged buyer of the heroin, the witness

Price, and the facts as portrayed by the data

concerning the money which was contained on

the original lists. The destruction of the

material evidence contained on the original

lists seriously prejudiced the Petitioner's

ability to refute or to discredit the testimony

of the witness Price, and deprived the Peti-

tioner of his right to see, inspect and utilize

material evidence which might have been

determinative of his guilt or innocence. As

such, the destruction by an agent of the

State of the original lists containing the

serial numbers and denominations of the bills

of money which were allegedly transferred

to the Petitioner in exchange for a quantity

of heroin, caused a violation of the Petitioner's

right to not be deprived of his liberty without

due process of law. The affirmances of the

Petitioner's convictions by the Court of

Appeals of North Carolina and the Supreme

Court of North Carolina were contrary to

this Court's decisions in United States v.

Agurs and Brady v. Maryland, supra.

CONCLUSION

For the reasons above set forth, writs of

certiorari should issue to review and reverse

the judgments entered by the Court of Appeals

of North Carolina and the Supreme Court of

Norta Carolina.

Respectfully submitted, this the 9D day of

Sipkenbs 1977.

ae ae

t

Thomas F. Loflin

LOFLIN & LOFLIN

Attorneys for Petiti

119 Orange Street

P. O. Box 1315

Durham,

North Carolina 27702

Tel: (919) 682-0383

Al

NO. 162PC EIGHTH DIST RICT

SUPREME COURT OF NORTH

CAROLINA

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LAMONT ATKINSON

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JUDGMENT DISMISSING APPEAL

EX MERO MOTU AND DENYING

PETITION FOR DISCRETIONARY

REVIEW

(768SC883 )

This matter came on to be considered

upon notice of appeal from the North Carolina

Court of Appeals pursuant to G. S. 7A-30 and

a petition for discretionary review pursuant to

G. S. 7A-31; upon consideration whereof, it is

adjudged by the Court in conference, this 13th

day of June, 1977 that the petition for discre-

tionary review be denied, that the appeal be

dismissed ex mero motu, and that it be so

certified to the North Carolina Court of

Appeals to the intent that its decision be

affirmed. Petition for stay of execution of

A2

judgment was also denied.

It is considered and adjudged further that

defendant do pay the costs incurred, to wit:

the sum of NINETEEN DOLLARS ($19. 00)

and execution issue therefor.

Issued under my hand and the seal of the

Supreme Court this 17th day of June, 1977.

/s/

Jonn R. Morgan

Clerk of the Supreme Court

of North Carolina

A3

No. 768SC883

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 1977

State of North Carolina )

)

Vv. ) Wayne County

) Nos. 75CRI12474

Lamont Atkinson ) 75CRI12190

Appeal by defendant from Small, Judge.

Judgment entered 27 May 1976 in Superior

Court, Wayne County. Heard in the Court

of Appeals 6 April 1977.

Defendant pled not guilty to charges of

(1) felonious possession of heroin with in-

tent to sell or deliver and (2) felonious sale

or delivery of heroin, with two prior convic-

tions for felonious possession of heroin.

The State's evidence tended to show that

on 26 August 1975 undercover agents using

marked money purchased 62 grams of heroin

from the defendant at his apartment. Defen-

dant presented no evidence, but stipulated

that he had been convicted twice of pos-

ession of heroin. The jury found defendant

A4

guilty of both the possession and sale

charges.

At a pre-sentence hearing two law en-

forcement officials testified that defendant

was a major heroin dealer. From judg-

ment imposing consecutive sentences to

imprisonment, defendant appeals.

Attorney General Edmisten by Special

Deputy Attorney General John R. B.

Matthis and Associate Attorney Rebecca B.

Bevacqua for the State.

Herbert B. Hulse for defendant appellant.

CLARK, Judge.

Defendant brings forward on appeal thir-

teen assignments of error. Assignments

Nos. l, 2, 4, 5, 6, 7, 9, and 10 all pertain

to rulings on or charges about the evidence

by the trial judge. We see no useful pur-

pose in reciting the several relevant

principles of the law of evidence. We

have carefully examined these assignments

and the arguments in support thereof, and

we find no error.

Defendant's motion for nonsuit was pro-

perly overruled. See cases cited in 4

AS

Strong, N.C. Index, Criminal Law § 104

(3d ed. 1976). The testimony of chemist

Tomezak and agents Price, Ashton, and

Thompson was sufficient to take the case

to the jury.

Defendant's motion for continuance was

denied, and we find no prejudicial error

therein. State v. Phillip, 261 N.C. 263,

134 S. E. 2d 386 (1964). There is nothing in

the record to indicate that any pretrial

publicity prevented defendant from ob-

taining an unbiased jury.

The evidence relative to defendant's

drug dealings considered upon sentencing

by the trial judge was not inadmissible as

"rank hearsay" under State v. Pope, 257

N.C. 326, 126 S. E. 2d 126 (1962). The

testimony of the officers was largely

based upon information derived from per-

sonal contact with or investigation of the

defendant and knowledge of his prior con-

victions for drug violations.

Defendant was not improperly given

consecutive sentences for the charges

A6

under G.S. 90-95 of possession with intent

to sell and sale, even though the charges

arose from one transaction. In State v.

Cameron, 283 N.C. 191, 195 S. E. 2d 481

(1973), the court held that possession and

sale are separate offenses for which

separate sentences are permissible. In

construing G.S. 90-95, we decline to

follow United States v. Atkinson, 512

F. 2d 1235 (4th Cir. 1975) wherein a fed-

eral statute was construed,

No error.

Chief Judge BROCK and Judge VAUGHN

concur.

Report per Rule 30 (e).