# Petition — Atkinson v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1010

## Text

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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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STATE 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2513%3A1. Public record. Not legal advice.