# Appendix — Alabama v. McCrary

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1071%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 913

## Text

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

1-31-83

wo

34

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

35

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
4-8-83

wo

36

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,

37

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.)

38

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

39

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

40

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1071%3A2. Public record. Not legal advice.