Petition — Alabama v. McCrary

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

82-1976 rv eiLeR s

on. JUN 4 1983

_ | ALEXANDER L. STEVas,

IN THE SUPREME COURT OF THE CLERK

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

JOYCE GLASS McCRARY

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONER

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

JOYCE GLASS McCRARY

Respondent

PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

l. Does a party to whom a statute

forbidding possession of counterfeit

drugs obviously applies have standing to

raise the statute's alleged unconstitu-

tional vagueness as to other persons?

2. Where a statute has been

judicially construed to require scienter,

does the fact that the statute's language

makes no express reference to scienter

render the statute unconstitutionally

vague?

3. Is a statute which has been

judicially construed as requiring

scienter, rendered unconstitutionally

vague by the fact that it does not

require a specific intent?

4. Is a clear and concise statute

rendered unconstitutionally vague by the

fact that it relates to a subject which a

certain court considers socially

harmless?

THE PARTIES

In the Circuit Court of Jackson

County, Alabama, the Court of Criminal

Appeals of Alabama and the Supreme Court

of Alabama, the parties were: The State

of Alabama, who is the Petitioner herein

and Joyce McCrary, who is Respondent

herein.

The matters at issue here were first

raised in the Circuit Court of Jackson

County, Alabama and have been at issue

throughout these proceedings.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ------------ ante, I

PARTIES ------------------------ ante, II

TABLE OF CASES ----------------- iii

TABLE OF CONSTITUTIONAL

PROVISIONS ---------------- vi

TABLE OF STATUTES --------------- vi

OPINIONS BELOW ------------------ l

JURISDICTION -------------------- 2

CONSTITUTIONAL PROVISIONS

INVOLVED -----------------~-- 2

STATUTORY PROVISIONS

INVOLVED ------------------- 3

STATEMENT OF THE CASE ----------- 4

STATEMENT OF THE FACTS ---------- 7

SUMMARY OF THE ARGUMENT --------- 10

ARGUMENT --------~---------.----- 12

I. ON STANDING

REASON FOR GRANTING

THE WRIT: CONFLICT

WITH THE CONTROLLING

DECISIONS OF THE

SUPREME COURT ------------ 16

TABLE OF CONTENTS (CON'T)

PAGE

II. THE STATE COURTS MIS-

APPLIED THE U.S. CON-

STITUTIONAL STANDARDS

FOR MEASURING VAGUENESS

IN STATUTES

REASON FOR GRANTING THE

WRIT: CONFLICT WITH

THE CONTROLLING

DECISIONS OF THE

SUPREME COURT ----------- 26

CONCLUSION -<<<<<--<<--------------- 36

CERTIFICATE OF SERVICE -<---------- 38

TABLE OF CASES

PAGE

Blood Brothers Inc.

v. Alabama Alcoholic

Beverage Control Board,

386 So. 2d 220 (S.

Ct. Ala, 1980) ——————————— 21

Blood Brothers Inc. v.

Alabama Alcoholic

Beverage Control Board,

386 So. 2d 218

(Civ. App. Ala,

1979) --------------------- 21

Boyce Motor Lines v.

United States,

342 U.S. 337,

96 L.Ed. 367,

72 8. Ct. 329

(1951) -------------------- 34

California v. LaRue,

409 U.S. 109, 34

L. Ed. 2d 342, 93

S. Ct. 390 (1972) --------- 22

Day-bright Lighting,

Inc. v. Missouri,

342 U.S. 421, 96

L.Ed. 469, 72

S.Ct. 511 (1954) --<-------- 31

Esco v. State,

278 Ala. 641, 179

So. 2d 766 (1965) --------- 5,6,20-

22,24,29

iii

TABLE OF CASES (CON'T)

PAGE

Grayned v. Rockford,

408 U.S. 104, 33

L.Ed.2d 222, 97 S.

Ct. 2294 (1972) -o<e------- 31

Hoffman Estates v. Flipside,

U.S. , @i

L. Ed. 24 36z,. 102

S. Ct. (1982) ------------- 25,31,34

Kahally v. State,

254 Ala. 482, 48

So. 24 794 (1950) «<<------- 5,6,19-

22,24,29

Kolender v. Lawson,

51 U.S. L.

Wk. 4532 (1983) «<<<<<<---- 12,30,33

McCraney v. ay

1 So. 2d 894. (1941) -<------ 32

McCrary v. State,

So. 2d

ts. See Ala. 1583) SS ee 1,7

McCrary v. State,

50. 2d

(Cr. App. ro goagg 1982) ae 1,5,10

Mobile v. Yuille,

3 Ala. 137 (1841) ---------- 32

TABLE OF CASES (CON'T)

PAGE

New Orleans vy. Dukes,

427 U.S. 297, 49

L.Ed.2d 51l, 96

S.Ct. 2513 (1976) ---------- 13

New York v. Ferber,

U.S. » 32

L.Ed.2d 1113, 102

S.C. _—s (1982) one = 25

Penn Central Transportation

Co. v. New York,

438 U.S. 104,

57 L. Ed. 2d 631,

98 S. Ct. 2646 (1978) ------ 32

Robinson v. United States,

aye 324 U.S. 282, 89

L. Ed. 944, 65

S. Ct. 666

(1945) --------------------- 11,17,

Tyson v. Johns-Manville Corp.,

399 So. 2d 263,

(S.Ct. Ala., 1981) iain tint cael 32

United States v. National

Dairy Products Corp.,

. ’

9 L. Ed. 2d 561,

83 S. Ct. 594 (1963) ------- 18

TABLE OF CASES (CON'T)

PAGE

Walker v. State,

° 672

(S. Ct. Ala.,

1977) -ene nnn nnn nn nr ee 13

Winters v. New York,

. e 7

92 L. Ed. 840,

68 S. Ct. 665 (1948) ------- 28

Young v. American Mini Theatres,

427 U.S. 50, 49

L. Ed. 2d 310,

96 S. Ct. 2440

(1976) qqmm mmm nnn nee e ee -- === 24,31

TABLE OF CONSTITUTIONAL PROVISIONS

Constitution of the United

States,

Amendment Fourteen -------- 2-3,19

TABLE OF STATUTES

Code of Alabama, 1975

Title 20,

Section 20-2-2 ----------- 14,23

Section 20-2-70 ---------- 3,4,12,

14,28,

36-37

United States Code,

Title 28,

Section 1257 -<<-<--------- 2

OPINIONS BELOW

The opinion of the Court of Criminal

Appeals of Alabama reversing Respondent

McCrary's conviction is not as yet

reported but will be reported as

follows:

McCrary v. State, So. 2d

(Cr. App. Ala., 1982)

A copy of the same is submitted in

Appendix "A" to this petition.

The orders of the Supreme Court of

Alabama granting and then quashing the

writ of certiorari in this case are not

as yet reported but will be reported as

follows:

Ex parte: State; In re:

McCrary v. State, So. 2d

(S. Ct. Ala., 1983)

A copy of the same is submitted in

Appendix "B" to this petition.

JURISDICTION

The order of the Supreme Court of

Alabama quashing the writ in this case

was issued on April 8, 1983, and this

petition is filed within sixty days of

that date.

The Jurisdiction of this Honorable

Court is invoked under 28 United States

Code, Section 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Court of Criminal Appeals of

Alabama found the statute under which

Respondent McCrary was convicted to be

repugnant to the Fourteenth Amendment to

the Constitution of the United States,

which reads as follows:

",..-All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and the State wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law; nor

deny any person within its

jurisdiction the equal

protection of the laws..."

STATUTORY PROVISIONS INVOLVED

At issue in this case is the

constitutionality of Title 20, Section

20-2-70, Code of Alabama, 1975, as

regards the possession of counterfeit

drugs. A copy of this statute is

submitted as Appendix "C" to this

petition. The particular portion of this

statute which the Alabama Courts found

unconstitutionally vague reads as

follows:

",..(b) Any person who violates

this section with respect to a

counterfeit substance

enumerated in schedules I

through V is guilty of a felony

and, upon conviction, for the

first offense may be imprisoned

for not less than two nor more

that 15 years and may be fined

not more than $25,000.00"

(Title 20, Section 20-2-70,

Code of Alabama, 1975;

Appendix "C")

STATEMENT OF THE CASE

Following her conviction for

possessing, selling, furnishing or giving

away counterfeit controlled substances, |

Respondent McCrary appealed to the Court

of Criminal Appeals of Alabama. (R. pp.

70-71; 89 and 90)

On August 24, 1982, the Honorable

Court of Criminal Appeals of Alabama

reversed Respondent McCrary's conviction

on the grounds that the statute under

which she was convicted is allegedly

unconstitutionally vague. As to

Respondent McCrary's standing to raise

vagueness in light of the statute's

obvious

lfitle 20, Section 20-2-70(b), Code of

Alabama, 1975; Appendix "C".

application to her, the Court followed

several old Alabama Supreme Court

opinions? allowing any defendant to raise

a claim of vagueness without regard to

the facts of his or her own case. The

Court's finding of vagueness was based

not on the statute's language but on

considerations involving social harm,

scienter and specific intent. McCrary v.

State, So. 2d ___—sqOi[Cr. App. Ala.,

1982]; Appendix “A").

The State's application for

rehearing raising substantially the same

points raised here was overruled on

October 12, 1982. (Appendix "A", p. 27)

The State petitioned the Supreme

Court of Alabama for a writ of certiorari

raising these same points and expressly

asking the Alabama Supreme Court to

2xahally v. State, 254 Ala. 482, 48 So.

2d 794 (1950); Esco v. State, 278 Ala.

641, 179 So. 2a 7

overrule its earlier opinions on standing

to raise vagueness, so as to bring the

law of Alabama into conformity with the

teachings of this Honorable Court.3

On January 4, 1983, the Alabama

Supreme Court found probable merit in the

3Ground 8 of the State's petition in the

Alabama Supreme Court read as follows:

"...8. The Honorable Court of

Criminal Appeals reached its

decision in reliance on this

Honorable Court's decisions and

opinions in Kahally v. State,

(254 Ala. 482, O.

[1950]) and Esco v. State, (278

Ala. 641, 17 O.

{1965]), and the State is

seeking to have these cases

overruled to the extent that

they authorize persons to whom

a statute clearly applies to

raise questions of vagueness as

to the statute's application to

others...."

In its supportive brief the State argued

that Kahally and Esco were contrary to

the decisions and opinions of the United

States Supreme Court.

petition and granted the writ.

Respondent McCrary declined to file a

brief, and the case was submitted on

January 3l, 1983. However on April 8,

1983, the Alabama Supreme Court quashed

the writ "...as improvidently

granted...." without opinion. (Ex parte:

State; In re: McCrary v. State, So.

2d {S. Ct. Ala., 1983]; Appendix

"B® )

STATEMENT OF THE FACTS

The Petition is based on the

following facts, as found by the Court of

Criminal Appeals of Alabama:

"The State's evidence

proved that two Scottsboro

police officers, armed with a

search warrant, went to

appellant's [i.e. Respondent

McCrary's] residence, showed

her the warrant, and told her

they were authorized to search

for Quaaludes or methaqualone.

Upon reading the warrant,

appellant replied, ‘All that's

here are those old fake pills,'

and ‘That's those old pills I

have in the back room," or

words to that effect. The

appellant then brought out a

bottle containing 415 white

pills stamped “LEMMON 714” and

scored on the back.

"One of the officers

familiar with the appearance of

Quaaludes testified that the

pilis looked exactly like those

containing the controlled

substance to him. A

preliminary analysis of the

pills at Scottsboro police

headquarters, however,

indicated they did not contain

the controlled substance

methaqualone. The toxicolo-

gist's analysis, and later

testimony, confirmed the

finding that the capsules did

not contain methaqualone or any

other controlled substances,

but compounds resembling

aspirin and antihistamine.

"An official of the Lemmon

Corporation testified that his

company manfactured a drug

containing methaqulaone, under

the trade name ‘Quaalude.' The

pill is stamped ‘LEMMON 714'

and scored on the reverse side.

He testified that the pills

found at appellant's residence

were not manufactured by his

company although they were ‘a

Oe ee ee

very good imitation.' He also

stated that Lemmon had not

authorized anyone to make a

facsimile Quaalude...."

(McCrary v. State, __— So.._ 2d

___. [Cr. App. Ala., 1982];

Appendix "A", pp. 1-3)

SUMMARY OF THE ARGUMENT

The statute is clear and unambiguous

on its face. The Alabama Courts ruled

the statute vague on the basis of matters

which are irrelevant to vagueness.

Respondent McCrary was allowed to raise

vagueness even though the statute

obviously applied to her. In all of this

the Alabama Courts ruled contrary to the

policies, decisions and opinions of this

Honorable Court.

I. This Honorable Court has a well

established policy that: Except in the

area of expression a statute will not be

struck down for vagueness on the basis of

",...-hypothetical cases which may never

arise...." Robinson v. United States,

324 U.S. 282, 286, 89 L. Ed. 944, 947, 65

S. Ct. 666 (1945) The Alabama Courts

have nearly the opposite policy: Except

in one area, which happens to involve

expression, statutes will be tested for

vagueness against any conceivable

hypothetical case.

The writ should issue to resolve this

conflict.

II. In declaring this statute

unconstitutionally vague, the State

Courts ruled contrary to all of those

decisions of this Honorable Court on what

constitutes vagueness in a statute. In

relating vagueness to "social harm" as

measured by a given court, the Alabama

Courts established a rule which defeats

"...the most important aspect of the

vagueness doctrine...." Kolender v.

Lawson, U.S. - L. Ed. 2d

’ Ss. Ct. Y 51 U.S. L. Wk.

4532, 4534 (1983) The ilabama Courts

also ruled contrary to the decisions of

this Honorable Court on:

1. The right of the legislative

branch to determine social harm.

2. The need to consider judicial

construction in reviewing a statute for

alleged vagueness.

3. The relationship of scienter and

specific intent to vagueness.

ARGUMENT

Title 20, Section 20-2-70, Code of

Alabama, 1975, (Appendix "C") provides in

pertinent part:

",..(a) Except as authorized

by this chapter, any person who

possesses, sells, furnishes,

gives away, obtains or attempts

to obtain by fraud, deceit,

misrepresentation or subterfuge

or by the forgery or alteration

of a prescription or written

order or by the concealment of

material fact or by use of

false name or giving a false

address controlled substances

enumerated in schedules I, II,

III, IV and V is guilty of a

felony...." (Appendix "C")

The expressions "possesses", "sells",

"furnishes", “gives away", etc. are not

terms of art, but are common expressions

which are used in their common meanings.

These expressions are precise. Although

the statute does not use the word

"knowingly" or other words referring to

scienter, the Alabama Supreme Court has

construed the statute as requiring

knowledge. Walker v. State, 356 So. 2d

672 (S. Ct. Ala., 1977) Thus, the

statute as construed reads: "...any

person who [Knowingly] possesses, sells,

etc...." No one could read this statute

and fail to know exactly what conduct the

statute is outlawing.

Respondent McCrary was not convicted

under subsection "a" of this statute but

under subsection "b", which reads, in

pertinent part:

"..-(b) Any person who violates

this section with respect to a

counterfeit substance

enumerated in schedules I

through V is guilty of a

felony...." (Appendix "C")

Thus all of the requirements of

subsection "a" above, including scienter,

are incorporated by reference into

subsection "b". “Counterfeit substance"

would appear to be a self-defining

expression but is, nonetheless, defined

as follows:

"...-(6) COUNTERFEIT SUBSTANCE.

Substances which, or the

container or labeling of which,

without authorization, bears

the trademark, trade name or

other identifying mark,

imprint, number or device or

any likeness thereof of a

manufacturer, distributor or

dispenser other than the person

who in fact manufactured,

distributed or dispensed the

substance. (Title 20, Section

20-2-2, Code of Alabama, 1975;

Appendix "C")

The Alabama Court of Criminal

Appeals held that this statute was

unconstitutionally vague as applied to

possession of counterfeit substances,

because the statute as drafted does not

expressly require scienter, because the

statute does not require specific intent,

and because possession of counterfeit

controiled substances is allegedly not

socially harmful. The Court allowed

Respondent McCrary to raise vagueness

even though, under the unconflicting

evidence, the statute clearly applied to

her. In so ruling the Alabama Courts

ruled contrary to numerous decisions of

this Honorable Court.

ON STANDING

REASON FOR GRANTING THE WRIT:

CONFLICT WITH PRIOR DECISIONS

OF THE SUPREME COURT.

A law is essentially an idea but to

have any practical effect that idea must

be communicated by the means of words.

Ideas are abstract, while words are

material and concrete. No matter how

carefully language is framed, it never

precisely covers the idea. This is the

key problem in statutory drafting: How

to express the legislature's intent,

covering the subjects of legislative

concern, without extending beyond the

limits of those concerns. At the same

time, a statute must be worded with

sufficient prescision to inform

individuals and the Courts of what is

required or forbidden. If each statute

had to meet all of these requirements

perfectly on its face, legislation would

be a practical impossibility. However,

statutes need not meet each of these

requirements on their face. If a statute

clearly defines the forbidden or mandated

conduct, many questions about the

statute's applicability to unusual or

unanticipated situations can be left to

the commonsense and good will of the

executive and judicial branches of the

government. It is in this context that

this Honorable Court has established the

principle that, except in the area of

expression, the alleged vagueness of a

statute will not be tested in the

abstract but only as applicable to a

particular case. Robinson v. United

States,4 324 U.S. 282, 89 L. Ed. 2d 944,

4"...1It is for Congress and not for us to

decide whether it is wise public policy

to inflict the death penalty at all. We

(con't)

65 S. Ct. 666 (1945); United States v.

National Dairy Products Corp.°, 372 U.S.

29, 9 Le. Ed. 2d 561, 83 S. Ct. 594

(1963)

Now, Alabama has for many years

tested statutes for vagueness against

",..-hypothetical cases which may never

footnote 4 con't

do not know what provision of law,

Constitutional or statutory, gives us

power wholly to nullify the clearly

expressed purpose of Congress to

authorize the death penalty because of a

doubt as to the precise congressional

purpose in regard to hypothetical cases

that may never arise...." (324 U.S. 282,

286, 89 L. Ed. 944, 947)

5",..Void for vagueness simply means that

criminal responsibility should not attach

where one could not reasonably understand

that his contemplated conduct is

proscribed. United States v. Harriss,

347 U.S. 612, 617, 98 L. ed. 989, 996, 74

S. Ct. 808 (1954). In determining the

sufficiency of the notice a statute must

of necessity be examined in the light of

the conduct with which a defendant is

charged...." (372 U.S. 29, 32-33, 9 L.

Ed. 561, 565-566)

i laa

arise...." Robinson, above. In Kahalley

v. State, (254 Ala. 482, 48 So. 2d 794

[1950]), the Alabama Supreme Court

condemned as vague and "...repugnant to

the Fourteenth Amendment [to] the U.S.

Constitution....” (485 So. 2d 794, 796),

a statute outlawing “unlawful peeping.”

The court observed that, "...undoubtedly,

---e(the statute]...was intended to serve

a useful purpose and bring to justice

so-called ‘Peeping Toms'...." (485 So.

2d 794, 795), but then the Court went to

great lengths to list numerous "innocent

situations" which were possibly covered

by the statute's language. The Court

never states what Kahalley himself did,

and it did not seem to matter, since

there were so many "innocent"

hypothetical cases to which the statute

could have applied. On a similar

analysis a statute outlawing changing

one's name to conceal identity was struck

down in Esco v. State, (278 Ala. 641, 179

So. 2d 766 [1965]). Again, the Court

struck down the statute with a lengthy

examination of hypothetical applications

of the statute but no hint as to Esco's

own conduct. The Alabama Supreme Court

ruled that the statute was

",..-unconstitutional as to deny the

requirements of due process under the

doctrine of Kahalley...." Esco, 179 So.

24 766, 771.6 ‘These cases are in patent

conflict with this Honorable Court's

policy on standing to raise the alleged

vagueness of a statute, but the conflict

does not stop there.

6All of the Alabama cases in this area

demonstrate a confusion of vagueness and

overbreadth.

In 1979 the Court of Civil Appeals

of Alabama struck down as unconstitu-

tionally vague a liquor regulation, which

disallowed "...topless or bottomless

dancers or performers...." Blood

Brothers Inc. v. Alabama Alcoholic

Beverage Control Board, 386 So. 2d 218

(Civ. App. Ala. 1979) However, the

Alabama Supreme Court reversed holding

that, since the regulation clearly barred

the activity at the lounge in question,

Blood Brothers had no standing to raise

the vagueness issue. Blood Brothers Inc.

v. Alabama Alcoholic Beverage Control

Board, 386 So. 2d 220 (S. Ct. Ala., 1980)

Although neither Court mentioned Kahalley

or Esco, there was a strong suggestion

that those cases had been superceded.

Such a suggestion can not survive the

instant case. Here the Court of Criminal

Appeals of Alabama relied on Kahalley and

Esco to give Respondent McCrary standing

to raise the question of the alleged

vagueness of this statute. The fact the

Alabama Supreme Court first granted

review and then quashed the writ,

demonstrates that Kahalley and Esco are

still the law except in the area of nude

cabaret performances. Such performances,

of course, involve expression.’

Therefore, the Alabama rule on standing

to raise questions of the alleged

vagueness of a statute is:

"Except in a certain area which

involves expression, the

alleged vagueness of a statute

as to any hypothetical

7",,.While we agree that at least some of

the performances to which these

regulations address themselves are within

the limits of the constitutional

protection of freedom of expression...."

California v. LaRue, 409 U.S. 109, 119,

34 L. Ed. 2d 342, 352, 93 S. Ct. 390

(1972)

application may be raised by

anyone."

This is nearly the opposite of the rule

long followed by this Honorable Court.

In the instant case Respondent

McCrary was in possession of 415 pills

which were stamped “Lemmon 714." A

police officer familiar with the

quaaludes manufactured by the Lemmon

Company testified that they looked

exactly like the genuine article. An

official of the company testified that

the pills were "a very good imitation."

These pills were perfect examples of

counterfeit substances as defined by the

statute. Title 20, Section 20-2-2(6),

Code of Alabama, 1975; Appendix "C". At

the time she was served with the search

warrant Respondent McCrary made an

unsolicited volunteered statement

acknowledging her possession of "fake

pills." Obviously, the statute applied

to Respondent McCrary. Yet the State

Court of Appeals following Kahalley and

Esco allowed her to raise a claim of

vagueness.

The long standing policy of this

Honorable Court is against examining

allegations of vagueness against

",.e-hypothetical cases which may never

arise...." See footnote 4, page 18. In

Young v. American Mini Theatres (427 U.S.

50, 49 L. Ed. 2d 310, 96 S. Ct. 2440

{[1976]) this Honorable Court rejected a

vagueness claim with these words:

",..-[E]ven if there may be some

uncertainty about the effect of

the ordinances on other

litigants, they are

unquestionably applicable to

these respondents...To the

extent that their challenge is

predicated on inadequate notice

resulting in a denial of

procedural due process under

the Fourteenth Amendment, it

must be rejected...." (427

U.S. 50, 58-59, 49 L.Ed. 2d 310,

319)