McCrary v. State

• Decision Date: 24 August 1982
• Docket Number: 8 Div. 636
• Citation: 429 So.2d 1121
• Parties: Joyce McCRARY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1121

429 So.2d 1121

Joyce McCRARY v. STATE.

8 Div. 636.

Court of Criminal Appeals of Alabama.

Aug. 24, 1982.

Rehearing Denied Oct. 12, 1982.

Certiorari Quashed April 8, 1983

Alabama Supreme Court 82-44.

J. Louis Wilkinson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

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 manufactured 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), § 20-2-70(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(6) 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 substances[s] enumerated in schedules I through 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. Act 252, § 2(j) (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. Act 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. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (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. 611, 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., 455 U.S. 489, 497 n. 9, 102 S.Ct. 1186, 1192 n. 9, 71 L.Ed.2d 362 (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, 811, 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, 2298, 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):

"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. 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 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 court invalidated that portion of an enactment penalizing "any person who changes or alters his name to conceal his identity," as 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" statute could include blameless conduct (e.g., the author who uses a pen name; the undercover detective who...