Maynard

Starcher

CHARLESTON – Driving someone else's car with two passengers, cold medicine, matches and syringes in it does not add up to conspiracy to make methamphetamine, the West Virginia Supreme Court of Appeals has ruled.

Four of five Justices reversed Roane County jurors who convicted Michael Cummings of attempting and conspiring to manufacture "meth."

"No evidence was presented by the State indicating that the materials belonged to appellant, that he had purchased them or that he was aware of their presence in the vehicle," Justice Brent Benjamin wrote.

Chief Justice Robin Davis and Justices Joseph Albright and Larry Starcher concurred. Justice Spike Maynard dissented.

Circuit Judge David Nibert last year sentenced Cummings to consecutive sentences of two to 10 years for attempt and one to five for conspiracy. He fined Cummings $5,000.

Now Cummings goes free because the constitutions of West Virginia and the United States prohibit double jeopardy.

The decision set off the first clash of the 2008 election campaign.

Maynard, whose term ends next year, wrote June 27 that the majority minimized the seriousness of meth.

"Meth destroys the mind and body and harms the unborn child," Maynard wrote. "There was no evidence presented that the individuals needed large amounts of cold medicine, matches and needles for health or any other reason."

He wrote that the items "...were all at arm's length, in plain view, stacked neatly in the floorboard behind the appellant's seat..."

Two days later, Starcher fired back.

"There must be some proof that the defendant owned or controlled the drug ingredients, not merely that they were at arm's length," he wrote in a concurring opinion. "It has to be real proof, not the 'Gee whiz, oh come on, he had to know! How could he not know?' kind of supposition that plays well with voters at election time, but has nothing to do with freedom and democracy."

Albright joined Starcher's opinion.

Maynard might have picked up more support except for doubts about whether the medicine was in plain view.

At oral arguments May 9, Albright mocked the trial testimony of State Trooper J. K. Cox, who said he saw the medicine boxes in a bag.

Albright asked if it was Superman who could see through things.

Cox's credibility made all the difference because no one else testified, either for the state or the defense.

Although Benjamin quoted an old decision that credibility determinations are for jurors and not appellate judges, the majority did not believe Cox.

They could not swallow as coincidence that Cox stopped Cummings in a car that belonged to meth suspect James Foreman, near Foreman's home, at the very moment that other officers combed the home with a search warrant.

They doubted Cox's testimony that he stopped Cummings for driving 63 miles per hour in a 55 mph zone, especially because he had testified at a pretrial hearing that the limit was 40 to 45.

They doubted that Cummings drove 63.

"There is no print-out from the radar to verify the speed at which the appellant was traveling, only the trooper's memory and report," Benjamin wrote.

They believed Cox improperly ordered Cummings to empty his pockets. The search yielded a container of meth, leading to a charge of possession.

Prior to trial Nibert declared the search improper, dismissed the possession charge and excluded the meth as evidence in the conspiracy trial.

Maynard argued in his dissent that Cox properly searched Cummings. He wrote that the container could have contained razor blades.

"I believe police officers must have the ability to protect themselves as well as secure the safety of others during a traffic stop," Maynard wrote.

Starcher bloated Maynard's dissent with sarcasm.

"Police officers should be allowed to search our homes, vehicles and pockets on a whim, and any suspicious looking item within arm's length should be grounds for incarceration," Starcher wrote. "A few innocent people have to go to jail to make sure we get as many guilty people in there as possible. Guilt by association and on the basis of suspicion should be the rule.

"The other two female passengers in the car are innocent, but Mr. Cummings must be guilty of something, right? So let's throw the bum in jail. The majority opinion rightly and boldly refused to sacrifice the presumption of innocence on the altar of expediency, as my dissenting colleague wishes."

The Court's decision was an impressive achievement for third-year law student Joshua Downey, who argued for Cummings before the Justices. Christine Hedges of Spencer supervised Downey. Assistant attorney general Benjamin Yancey III represented the state.

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