Appendix — Alabama v. McCrary

82-1976

NO. on ee

ae

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1982

STATE OF ALABAMA,

Petitioner

V.

JOYCE GLASS McCRARY

Respondent

APPENDIX

TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

OF

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

V.

JOYCE GLASS McCRARY

Respondent

APPENDIX

TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

OF

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

TABLE OF APPENDICIES

PAGE

APPENDIX A - OPINIONS AND ORDERS

OF THE COURT OF

CRIMINAL APPEALS OF

ALABAMA ------------ l

OPINION, AUGUST 24,

1982 «-<------.-.------ 1

ORDER DENYING

REHEARING, OCTOBER

12, 1982 ------------ 27

ORDER GRANTING STAY

PENDING CERTIORARI

IN U.S. SUPREME

COURT, APRIL 18,

1983 ---------------- 29

APPENDIX B = ORDERS OF THE

SUPREME COURT OF

ALABAMA <<<-<-------- 31

ORDER GRANTING

CERTIORARI, JANUARY

4, 1983 ------------- 31

ORDER TAKING CASE

UNDER SUBMISSION,

JANUARY 31, 1983 ---- 33

ORDER QUASHING WRIT

AS IMPROVIDENTLY

ISSUED, APRIL 8,

1983 ---------------- 35

TABLE OF APPENDICIES (CON'T)

PAGE

APPENDIX C = CODE OF ALABAMA,

1975, TITLE 20,

SECTION 20-2-1 ------ 37

SECTION 20-2-2 ------ 37

SECTION 20-2-70 ----- 37

CERTIFICATE OF SERVICE ----------- 39

ii

APPENDIX "A"

THE STATE OF ALABAMA --- JUDICIAL

DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1981-82

8 DIV. 636

Joyce McCrary

Vv.

State

Appeal from Jackson Circuit Court

DeCARLO, JUDGE

Possession of a counterfeit

substance; ten years.

The State's evidence proved that two

Scottsboro police officers, armed with a

search warrant, went to appellant'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," or "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 pills 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 toxicologist'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

methaqualone, 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 very good imitation." He also

stated that Lemmon had not authorized

anyone to make a facsimile Quaalude.

I.

Appellant claims that her conviction

should be reversed because § 20-2-70(b)

of the Alabama Code 1975, was

misconstrued to apply to her, or, if

properly construed in its application to

her, is unconstitutional.

Read in conjunction with the

relevant prohibition of subsection (a),

§ 20-2070(b) provides that "any person

who [possesses] a counterfeit substance

enumerated in schedules I through V is

guilty of a felony. ..." "Counterfeit

substances" is defined in § 20-2-2(7) as

follows:

"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."

Appellant's first argument is one of

statutory construction. She contends

that there are no "counterfeit

substance[s] enumerated in schedules I

thorugh V; and that because all the drugs

listed there are genuine controlled

substances, the prohibition of the

statute is meaningless. Next, she claims

that, since she was indicted for

possession of a "counterfeit controlled

substance" rather than for possession of

a “counterfeit substance," the indictment

does not apply to the pills in question

here.

According to appellant's argument, a

"counterfeit substance" is an innocent

compound made to look like a controlled

drug (an aspirin resembling a Quaalude),

while a “counterfeit controlled

substance" is one controlled drug made to

look like another (heroin fashioned to

resemble a Quaalude).

While we acknowledge the ambiguity

of the statute, in our judgment both of

these arguments are answered by a review

of the legislative history and judicial

construction of § 20-2-70(b) and its

predecessor.

The predecessor to the current

statute set out a prohibition on

"counterfeit drugs" rather than on

"counterfeit substances." See 1967 Ala.

Acts 33, No. 252, § 1(2) (August 24,

1967). However, apparently in response

to the holding of Vann v. State, 44 Ala.

App. 664, 219 So. 2d 649 (1969), that

section was repealed and replaced by §

20-2-70(b). See 1971 Ala. Acts 2374, No.

1407 (September 16, 1971).

In Vann, the court determined, based

on the same reasoning that appellant now

advances, that an indictment for

possession of a "counterfeit drug" was

insufficient unless it named two

controlled substances: the drug possessed

and the drug it was supposed to resemble.

Thereafter, evidently in order to remedy

the defect announced by the Vann court,

the legislature altered the wording of

the section to read “counterfeit

Substance." Perhaps a more precise

wording would have been “counterfeit of a

substance."

In any event, based on the change in

wording of the statute, presumedly in

response to the judicial determination

that a “counterfeit drug” meant one

controlled substance made to look like

another, we believe the legislature's

intent in drafting § 20-2-70(b) was to

proscribe the possession, sale, etc., of

any substance (controlled or

uncontrolled) which is a facsimile or

imitation of a particular, identifiable

controlled substance.

In view of our disposition of this

appeal, based upon appellant's next

argument, it is unnecessary to determine

the sufficiency of the indictment.

II.

Appellant contends that § 20-2-70(b)

is unconstitutionally vague and

overbroad. While the statute does not

offend the doctrine of overbreadth, it

is, in our judgment, impermissibly vague

as it applies to possession of a

counterfeit substance.

The overbreadth doctrine derives

from the First Amendment, see Young v.

American Mini Theaters, 427 U.S. 450, 96

S. Ct. 2440, 47 L. Ed. 2d 81 (1976);

Parker v. Levy, 417 U.S. 733, 94 S. Ct.

2547, 41 L. Ed. 2d 439 (1974), and serves

to invalidate legislation so sweeping

that, along with its allowable

proscriptions, it also restricts

constitutionally-protected rights of free

speech, press, or assembly, see e.g.,

Coates v. Cincinnati, 402 U.S. 6ll, 91

S.Ct. 1686, 29 L.Ed.2d 214 (1971). Since

there are no First Amendment rights at

stake here, the overbreadth doctrine does

not apply. See Village of Hoffman

Estates v. Flipside, Hoffman Estates,

Inc., U.S. , 102 S.Ct. 1186,

1192 n. 9, __—_siLeEd.«2d ss (1982).

The doctrine of vagueness, on the

other hand, originates in the due process

clause of the Fourteenth Amendment, see

Lanzetta v. New Jersey, 306 U.S. 451, 59

S.Ct. 618, 83 L.Ed. 888 (1939), and is

the basis for striking down legislation

which contains insufficient warning of

what conduct is unlawful, see United

States v. National Dairy Products

Corporation, 372 U.S. 29, 83 S.Ct. 594, 9

L.Ed.2d 561 (1963).

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, 74 S.Ct. 808, 98 L.Ed.

989, 996 (1954). A vague statute does

not give adequate "notice of the required

conduct to one who would avoid its

penalties," Boyce Motor Lines v. United

States, 342 U.S. 337, 340, 72 S.Ct. 329,

330, 96 L.Ed. 367, 371 (1951), is not

“sufficiently focused to forewarn of both

its reach and coverage," United States

v. National Dairy Products Corporation,

372 U.S. at 33, 83 S.Ct. at 598, 9

L.Ed.2d at 566, and “may trap the

innocent by not providing fair warning,”

Grayned v. City of Rockford, 408 U.S.

104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222,

227-28 (1972).

As the United States Supreme Court

observed in Winters v. New York, 333 U.S.

507, 68 S.Ct. 665, 92 L.Ed. 840 (1948):

10

"There must be ascertainable

Standards of guilt. Men of

common intelligence cannot be

required to guess at the

meaning of the enactment. The

vagueness may be from

uncertainty in regard to

persons within the scope of the

act, or in regard to the

applicable tests to ascertain

guilt."

333 U.S. at 515-16, 68 S.Ct. at 670, 92

L.Ed.2d at 849-50 (citations omitted).

The Winters Court overturned a

conviction for possession with intent to

sell magazines “devoted to the

publication and principally made up of

criminal news, police reports, or

accounts of criminal deeds, or pictures,

or stories of deeds of bloodshed, lust or

crime." Id. Noting that the provision

contained no “ascertainable standard of

guilt," the Court determined that

"“[w]here a statute is so vague as to make

criminal an innocent act, a conviction

1l

under it cannot be sustained." 333 U.S.

at 520, 68 S.Ct. at 672, 92 L.Ed. at

852.

Citing Winters v. New York, the

Alabama Supreme Court struck down, as

unconstitutionally vague, an act

punishing “any male who gazes into any

Place of abode, not his own or under his

control, which is occupied by a female,"

in Kahalley v. State, 254 Ala. 482, 48

So. 2d 794 (1950). The court commented

that the statute

"marks no line between

lawfulness and criminality,

condemning all acts alike of

the kind specified and as

applied, would affect innocent

beings in the ordinary pursuits

of life. It leaves open the

widest conceivable inquiry, the

scope of which no one could

foresee and the results of

which no one could foreshadow

and adequately guard against."

254 Ala. at 483, 48 So. 2d at 795.

Later, in Esco v. State, 278 Ala.

641, 179 So. 2d 766 (1965), the Alabama

12

court invalidated that portion of an

enactment penalizing “any person who

changes or alters his name to conceal his

identity," as a uncertain and indefinite.

The court observed that every name change

is accomplished to conceal identity, and

in the absence of a requirement of

fraudulent intent, the statute penalized

"conduct ... which could not be

proscribed as criminal." 278 Ala. at

645, 179 So. 2d at 770.

Like the Kahalley court which listed

numerous instances of innocent activity

the “Peeping Tom" statute might penalize

(e.g., the postman trying to deliver a

package, who peeps inside to see if

anyone is home; the concerned neighbor

who smells smoke and looks inside to see

if he can help), the Esco court also

demonstrated how the “name change"

13

statute could include blameless conduct

(e.g., the author who uses a pen name;

the undercover detective who assumes an

alias to ferret out crime).

Similarly, § 20-2-70(b) “marks no

line between lawfulness and criminality,"

Kahalley v. State, supra. It proscribes

the possession of a substance which, by

its nature, is essentially harmless. A

"counterfeit substance" becomes injurious

to the public health, safety or welfare

only with the addition of a specific

intent on the part of its possessor to

pass it off or to represent it as

genuine.

Generally, all criminal statutes

must contain the element of scienter.

See Morissette v. United States, 342 U.S.

246, 72 S.Ct. 240, 96 L.Ed. 288 (1952);

Rogers v. State, 23 Ala.App. 149, 122 So.

308 (1928), “The existence of a mens rea

14

is the rule of, rather than the exception

to, the principles of Anglo-American

criminal jurisprudence." Dennis v.

United States, 341 U.S. 494, 500, 71

S.Ct. 857, 95 L.Ed. 1137, 1147 (1951).

Although a state may create strict

liability offenses, the power to do so is

limited by "the constitutional command

that no person can be ‘deprived of life,

liberty, or property, except by due

process of law.'" Walker v. State, 356

So. 2d 672, 673 (Ala. 1977); see Ala.

Const. Art. I, § 6 (1901); Smith v.

California, 361 U.S. 147, 80 S.Ct. 215, 4

L-Ed.2d 205 (1959).

In Walker v. State, supra, the

Alabama Supreme Court recognized the

State's authority under the police power

"to impose strict liability in connection

with a variety of regulatory statutes for

what are commonly called ‘public welfare

15

offenses,'" 356 SO. 2d at 673, but it

held that the Alabama Controlled

Substances Act was not one of those

statutes.

The court observed that, because the

penalties for violation of the act were

severe (two or fifteen years'

imprisonment and a fine up to $25,000),

criminal sanctions could be imposed under

the act “only for blameworthy conduct."

356 So. 2d at 674. It determined that

knowledge must be an essential element of

illegal possession of a controlled

substance.

In appelant's case, we are not

dealing with illegal possession of a

controlled substance, but with illegal

possession of items resembling a

controlled substance. Thus, some mental

element other than simple knowledge of

the resemblance must be present in order

16

to make possession of the substance

"“blameworthy.”" See Gasser v. Morgan, 498

F.Supp. 1154, 1166 (N.D. Ala. 1980). We

believe, at the minimum, specific intent

to represent the substance as genuine is

necessary.

The lack of a specific intent

requirement in the statute becomes even

more apparent in view of the legislative

history of the enactment. Act Number

1407, 1971 Ala. Acts 2378 (September 16,

1971) (codified at Ala. Code §§ 20-2-2 et

seq.) states the following purposes:

"To provide a Uniform Alabama

Controlled Substance Act for

preventing drug abuse and drug

dependence, to standardize all

laws in this state to be in

conformity with the new Federal

Comprehensive Drug Abuse

Prevention and Control Act of

1970, and to repeal existing

state statutes in conflict."

The federal counterpart of §

20-2-70(b) provides in pertinent part,

17

the following:

"(A) Except as authorized by

this subchapter, it shall be

unlawful for any person

knowingly or intentionally -

"(2) to create, distribute, or

dispense, or posses with the

intent to distribute or

dispense a counterfeit

substance."

21 U.S.C. § 841 (1970) (emphasis added).

The federal definition of “counterfeit

substance" is virtually identical to

Alabama's definition of the term, except

that, after the final word of the Alabama

definition at § 20-2-2(6), the United

States Code provision adds the

following:

“and which thereby falsely

purports or 1s represented to

be the product of, or to have

been distributed by, such other

manufacturer, distributor, or

dispenser."

21 U.S.C. § 802(7) (1970). The

emphasized language of both the penalty

18

provision and the definitional section in

the United States Code indicates that the

federal statutes do not suffer from the

same vagueness problems as the Alabama

statutes. Section 841 requires specific

intent. Section 802(7) requires not only

some resemblance to a controlled

substance or its container, but a

resemblance which “thereby falsely

purports or is represented to be" the

genuine article.

Because the Alabama statute sets out

no scienter requirement, it fails to

give fair warning to someone in

appeliant's position of the type of

conduct which will be considered

criminal. Furthermore, because the

definition of the term "counterfeit

substance" is so uncertain that it does

not distinguish between innocently or

inadvertently mis-labelled substances

19

and those which, by their incorrect

markings, purport -- or are held out --

to be the genuine article, the statute

provides no “ascertainable standards of

guilt" and “may trap the innocent."

Winters v. New York, supra; Grayned v.

City of Rockford, supra.

In our judgment § 20-2-70(b), as it

pertains to possession of counterfeit

substances, is unconstitutionally vague

for its failure to specify either the

"intent" of the possessor or the

"purpose" of the mismarked substance

which will be deemed criminal. See

Winters v. New York, 333 U.S. at 519, 73

S.Ct. at 672, 92 L.Ed at 851-52; Esco v.

State, supra; Kahalley v. State, supra.

We note that the recent holding of

the United States Supreme Court in

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., supra, though not

20

based on a criminal statute, supports our

conclusion that specific intent is a

necessary ingredient for fair warning in

a criminal provision. In Hoffman

Estates, the Court had before it a

vagueness challenge to an Illinois

regulatory ordinance requiring a license

to sell drug paraphernalia.

The test applied by the Court to the

Illinois enactment was whether the

defendant merchandiser of drug-related

items had adequate notice that its

display of paraphernalia was regulated by

an ordinance requiring a license for the

following:

“any items, effect, parapher-

nalia, accessory or thing which

is designed or marketed for use

with illegal cannabis or

drugs...."

Hoffman Estates, Appendix (emphasis

added). Focusing on the emphasized

portion of the ordinance, the Court held

21

that the enactment

“requires scienter, since a

retailer could scarcely

'market'items ‘for' a

particular use without

intending that use. Under this

test Flipside had ample warning

that its marketing activities

required a license."

102 S.Ct. at 1195. The Court also

observed:

"[A] scienter requirement may

mitigate a law's vagueness,

especially with respect to the

adequate of notice to the

complainant that his conduct is

proscribed."

102 S.Ct. at 1193.

It is significant that the test of

“ample warning" was satisfied by a

scienter requirement in Hoffman Estates

since that case dealt with a business

regulation carrying only “quasi-criminal"

sanctions, 102 S.Ct. at 1194, whereas the

case before us concerns a purely criminal

statute with “severe penalties,” Walker

v. State, supra. Acknowledging that the

22

test it applied to the Illinois ordinance

was “less strict" than one it would apply

to a criminal statute, 102 S.Ct. at 1193,

the Court recognized that:

"The degree of vagueness that

the Constitution tolerates - as

well as the relative importance

of fair notice and fair

enforcement =< depend in part on

the nature of the enactment."

102 S.Ct. at 1193.

We therefore hold, based on Walker

v. State, supra, and the line of

vagueness cases decided by the Alabama

and United States Supreme Courts, that

the statute under review here does not

provide sufficient warning of what

conduct is prohibited, and it is thereby

unconstitutionally vague.

We have no choice except to reverse

and remand this case for the

constitutional infirmities noted.

Although a court may cure the vagueness

23

of a statute by interpreting it to

include a specific intent when none is

required by the literal wording of the

enactment, see United States v.

International Minerals and Chemical

Corporation, 402 U.S. 558, 91 S.Ct. 1697,

29 L.Ed.2d 178 (1971); Boyce Motor Lines

v. United States, supra; Gasser v.

Morgan, 498 F. Supp. 1154 (N.D. Ala.

1980), it may imply the necessary intent

only if it determines that the

legislature intended a specific mens rea

to be an element of the crime, United

States v. Balint, 258 U.S. 250, 42 S.Ct.

301, 66 L.Ed. 604 (1922). See also

Morissette v. United States, 342 U.S.

246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

In the case before us, we must

conclude, based on the history of the

Controlled Substances Act, that the

legislature did not intend to include

24

the element of intent. As Judge Bowen,

writing for this court in State v.

Spurlock, 393 So. 2d 1052 (Ala.Crim.App.

1981) observed:

“Alabama adopted the substance

of the major provisions of the

Uniform Act .... This section

was an addition to the Uniform

Act. In making, it a part of

Alabama's ‘uniform act,' the

legislature had the opportunity

to conform it to the language

of the various penal provisions

within the Uniform Act. This

omission, when considered in

the context of the entire act,

makes it clear that it was the

intention of the legislature

not to include any element of

intent, willfulness or

knowledge. ... Since the

intent of the legislature is

clear, this Court cannot

declare it otherwise."

393 So. 2d at 1055, 1058.

Since Alabama's act parallels the

federal legislation, and one of its

stated goals is “conformity with the

Federal [Act]” 1981 Ala. Acts 2378, No.

1407, supra, we must presume that any

non-conformity was purposeful, and the

legislature did not intend to add the

element of specific mens rea to the

statute.

We note, without expressing any

opinion of its validity, the existence of

an act recently passed by the legislature

entitled the "Imitation Controlled

Substances Act" which appears to be

directed at the same subject matter as

that addressed in § 20-2-70(b). See 1982

Ala. Acts _, Now 426 (May 12, 1982).

For the foregoing reasons, the

judgment of conviction is reversed, and

the cause remanded to the Jackson Circuit

Court.

REVERSED AND REMANDED.

All the Judges concur.

26

October 12, 1982

THE STATE OF ALABAMA --- JUDICIAL

DEPARTMENT

8 Div. 636

Joyce Glass McCrary

Vv.

State

Appeal from Jackson Circuit Court

Number CC-81-316

IT IS ORDERED that the application

for rehearing be and the same is hereby

overruled in the above-styled cause.

WITNESS, Mollie Jordan, Clerk

of the Court of Criminal

Appeals, this 12th day of

October, 1982.

/s/ Mollie Jordan

CLERK, COURT OF CRIMINAL

APPEALS OF ALABAMA

27

STATE OF ALABAMA

)

)

MONTGOMERY COUNTY )

)

)

I, Mollie Jordan, Clerk of the Court

of Criminal Appeals, do hereby certify

that the foregoing contains a full, true

and correct copy of the Joyce Glass

McCrary v. State, Jackson County Circuit

Court Number CC-81-316, 8 Div. 636, on

October 12, 1982, as the same remains of

record and on file in this office.

WITNESS, Mollie Jordan, Clerk

of the Court of Criminal

Appeals, this 10th day of May,

1983.

/s/ Mollie Jordan

’

APPEALS OF ALABAMA

28

COURT OF CRIMINAL APPEALS

STATE OF ALABAMA

P. O. Box 351

MONTGOMERY 36101

April 18, 1983

JOHN O. HARRIS MOLLIE JORDAN

Presiding Judge Clerk

JOHN C. TYSON, III

JOHN P. DeCARLO

JOHN G. BOOKOUT

WILLIAM M. BOWEN, JR.

Judges

Honorable Joseph G. L. Marston, III

Assistant Attorney General

64 North Union Street

Montgomery, Alabama 36130

Dear Mr. Marston:

RE: Joyce Glass McCrary v.

State of Alabama, 8 Div.

636, Jackson Circuit Court

Number Cc-81-316

The Court of Criminal Appeals has

today granted a stay of sixty (60) days

from April 8, 1983, to allow filing of a

petition for writ of certiorari in the

United States Supreme Court. This stay

will remain in effect until action is

taken on the petition, and if petition

29

is granted, until a decision is rendered

by the United States Supreme Court.

The certificate of final judgment

has been recalled from the lower court

pending determination by the United

States Supreme Court, but the certificate

will be reissued upon the expiration of

the sixty-day stay unless this Court is

furnished with proof of the filing of

said petition in the United States

Supreme Court.

Yours very truly,

/s/ Mollie Jordan

Clerk

cc: Clerk, Jackson Circuit Court

Hon. J. Louis Wilkinson, Attorney

for Appellant

File

30

APPENDIX B

JANUARY 4, 1983

THE STATE OF ALABAMA --- JUDICIAL

DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

OCTOBER TERM 1982-83

82-44

Ex Parte: State of Alabama

PETITION FOR WRIT OF CERTIOARI TO THE

COURT OF CRIMINAL APPEALS

(Re: Joyce McCrary vs. State of Alabama)

Upon a preliminary examination of

the petition in the above cause, the

Court concludes that there is a

probability of merit in the petition and

has today granted the writ.

IT IS, THEREFORE, ORDERED that the

writ issue to the Court of Criminal

Appeals and that this cause stand ready

for submission on briefs or oral

argument, if so desired, in accordance

with Rule 39, Alabama Rules of Appellate

Procedure.

PER CURIAM.

ALL THE JUSTICES CONCUR.

I, Dorothy F. Norwood, as

Acting Clerk of the Supreme

Court of Alabama, do hereby

certify that the foregoing is a

full, true and correct copy of

31

the instrument(s) herewith set

out as same appears on record

in said Court.

Witness my hand this 4th day of

Jan. 1983.

/s/ Dorothy F. Norwood

Acting Clerk, Supreme Court of

Alabama

32

MAILING ADDRESS: Telephone: 832-6480

P. O. Box 157

Montgomery,Alabama 36101

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

January 31, 1983

Re: 82-44

Ex Parte: State of Alabama

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS

(Re: Joyce McCrary v. State of Alabama)

Appellant Appellee

You are hereby notified that the

following indicated action was taken in

the above cause by the Supreme Court

today:

Appeal docketed. Future correspond-

ence should refer to the above

number.

Court Reporter granted additional

time to file reporter's transcript to

and including

Clerk/Register granted additional

time to file clerk's record/record on

appeal to and including

Appell granted 7 additional days

to filé briefs to and including

Appellant(s) granted 7 additional

einen

days to file briefs to and including

33

_____ Record on Appeal filed

Appendix Filed

xxxxSubmitted on Briefs of Petitioner.

Petition for Writ of Certioari

denied. No opinion.

Application for rehearing overruled.

No opinion written on rehearing.

Permission to file amicus curiae

briefs granted

/s/ Dorothy F. Norwood

Acting Clerk, Supreme

Court of Alabama

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MAILING ADDRESS: TELEPHONE: 832-6480

P. O. Box 157

Montgomery,Alabama 36101

OFFICE OF

CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

April 8, 1983

Re: 82-44

Ex Parte: State of Alabama

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS

(Re: sores McCrary v. State of Alabama)

PPELLAN APPELLEE

You are hereby notified that the

following indicated action was taken in

the above cause by the Supreme Court

today:

Appeal docketed. Future correspond-

ence should refer to the above

number.

Court Reporter granted additional

time to file reporter's transcript to

and including

Clerk/Register granted additional

time to file clerk's record/record on

appeal to and including

Appell granted 7 additional days

to file briefs to and including

Appellant(s) granted 7 additional

days to file briefs to and including

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Record on Appeal filed

Appendix Filed

Submitted on Briefs of Petitioner.

Petition for Writ of Certioari

denied. No opinion.

Application for rehearing overruled.

No opinion written on rehearing.

Permission to file amicus curiae

briefs granted

XxxX WRIT QUASHED AS IMPROVIDENTLY

GRANTED; NO OPINION ISSUED.

Shores, J. - All the Justices

concur.

/s/ Dorothy F. Norwood

Acting Clerk, Supreme

Court of Alabama

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APPENDIX C

CODE OF ALABAMA, 1975

TITLE 20,

§ 20-2-l1. Short title.

This chapter may be cited as the

Alabama Uniform Controlled Substances

Act. (Acts 1971, No. 1407, p. 2378, §

511)

§ 20-2-2. Definitions.

When used in this chapter, the

following words and phrases shall have

the following meanings, respectively,

unless the context clearly indicates

otherwise:

(5) CONTROLLED SUBSTANCE. A drug,

substance or immediate precursor in

schedules I through V of article 2 of

this chapter.

(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. ...

zx *«

§ 20-2-70. Prohibited acts A.

(a) Except as authorized by this

chapter, any person who possesses, sells,

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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, IT,

III, IV and V is guilty of a felony and,

upon conviction, for the first offense

may be imprisoned for not less than two

nor more than 15 years and, in addition,

may be fined not more than $25,000.00;

provided, that any person who possesses

any marihuana for his personal use only

is guilty of a misdemeanor and, upon

conviction for the offense, shall be

imprisoned in the county jail for not

more that one year, and in addition,

shall be fined not more than $1,000.00;

provided further, that the penalties for

the subsequent offenses relating to

possession of marihuana shall be the same

as specified in the first sentence of

this subsection.

(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

than 15 years and may be fined not more

than $25,000.00. (Acts 1871, No. 1407,

p. 2378, § 401.)

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CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court of

the United States and one of the

Attorneys for the State of Alabama,

Petitioner, do hereby certify that on

this day of June, 1983, I did

serve the requisite number of copies of

the foregoing on the Attorneys for Joyce

Glass McCrary, Respondent, by mailing

same to them, first class postage prepaid

and addressed as follows:

Hon. J. Louis Wilkinson

Attorney at Law

617 Frank Nelson Building

Birmingham, Alabama 35203

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Hon. J. Stephen Salter

Groenendyke & Salter

Attorneys at Law

Suite 500, Title Building

Birmingham, Alabama 35203

JOSEPH G. L. MARSTON, I1l

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama 31630

(205) 834-5150

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