WEST VIRGINIA RECORD

CHARLESTON – Comic relief lightened the load of the West Virginia Supreme Court of Appeals for a few minutes in recent oral arguments.

Justices teased both attorneys May 9 in an appeal of a Roane County conviction for manufacture of methamphetamine.

The Justices will take the case seriously as they work toward a decision, but they could not keep straight faces as the story unfolded.

After all, the defendant drove a car that belonged to his wife's boyfriend, with his wife in back and his girlfriend in front.

In a bad sign for the prosecution, however, the Justices also laughed at the testimony of the arresting officer.

Law student Joshua Downey represented Cummings. He said the arresting officer, State Trooper Justin Cox, was the only witness at trial.

He said the state introduced into evidence six boxes of cold medicine, boxes of matches and syringes.

He said the Trooper testified that he found the evidence after he arrested Cummings for speeding.

He said Cummings had a female passenger in front and his wife Amy Cummings in back.

He said none of them owned the vehicle. He said Amy Cummings called the owner of the vehicle.

He said the Trooper told Michael Cummings to step out. He said the Trooper ordered him to empty his pockets.

Justice Brent Benjamin asked if the contents of the pocket were suppressed at trial. Downey said they were.

Benjamin then asked if the other evidence was in the back. Downey said it was.

"And there were two other passengers in the car?" Benjamin asked, to which Downey replied yes.

"In some other person's car?" Benjamin asked, to which Downey said yes.

Downey said the receipt for the medicine showed a perfume purchase.

Justice Spike Maynard asked if the six boxes were in plain view. Downey said no. He said there was no reason for the state to enter the car.

"Six boxes for three people is not immediately incriminating," Downey said.

Maynard said no one would use that much medicine. Downey said he would agree if it was one person but it was three.

"So they each were going to take two boxes," Maynard said. "Each of them had a head cold?"

Downey said that was their argument.

"Everybody in the world knows that's not what happened here but it's a good argument," Maynard said.

Benjamin asked what happened to the other two. Downey said Amy Cummings pleaded and the passenger was not prosecuted.

Maynard kept asking questions until he established that the owner of the vehicle was the boyfriend of the wife in the back seat.

Maynard shrugged and said, "Well hell, it's two thousand and seven."

Benjamin said, "That's why she was sitting in the back seat, right?"

Downey said yes. He said Cummings had his girlfriend in front.

For the state, assistant attorney general Benjamin Yancey said the Trooper was pointing radar at Route 14.

Benjamin asked if the Trooper testified that he didn't know whether the speed limit was 45 or 55, and that he clocked Cummings at 63.

"You understand my concern?" Benjamin asked. "A search warrant was being served about the same time near the boyfriend's house."

He asked if the radar printout did not show 63. Yancey said the Trooper testified to that from memory.

Benjamin asked if the Trooper arrested other speeders that day. Yancey said he did not know.

Benjamin asked if the Trooper had been found qualified as an expert in methamphetamine investigations. Yancey said yes.

"Do you agree that intent requires possession?" Benjamin asked, to which Yancey replied yes.

"What showed that the driver had possession?" Benjamin asked.

"Uh, it's true that he didn't have actual possession," Yancey replied.

Benjamin said they had to show that. Yancey said they could infer it.

"We are going to infer that?" Benjamin said. "Why not bring in the store clerk. Why not bring in the front seat passenger?"

"She had her own bag in there with her," Yancey said.

Justice Joseph Albright asked if it was Superman that could see through things.

"I can see your t-shirt," he said to Yancey.

"I'm not wearing a t-shirt," Yancey replied.

He said the Trooper testified that he had an unobstructed view.

"We have to take him at his word until we find out something different," Yancey said.

On rebuttal, Downey said the Trooper was not certain of the speed limit, but he was certain of what he saw in the car.

He said the only evidence against Cummings was suppressed due to an illegal search.