The case of an Elkins man who has been accused of making methamphetamine in a Davis Avenue apartment was bound over to Randolph County Circuit Court Tuesday.
Magistrate George M. Riggleman found probable cause in the case of 25-year-old Michael Brook Ketterman in Randolph County Magistrate Court, despite strong protests from Ketterman's attorney, James Hawkins.
Ketterman, Jason William Hebb, 32, of Elkins and Carl Larry Manley, 38, also of Elkins, were each arrested and charged with one felony count of operating or attempting to operate a clandestine lab March 16 at an apartment building in the 200 block of Davis Avenue.
During Tuesday's preliminary hearing, Patrolman B.D. Tice with the Elkins Police Department testified that he'd been dispatched to the building after the landlord reported a copper theft.
Based on information from a witness to the alleged crime, Tice knocked on the door of an apartment, believing the alleged perpetrators were inside.
"At first, I was just going to try to convince them to return the copper, but then I heard a bunch of noise, people running around, running water, flushing toilets," Tice said. "That's usually a pretty good indication that someone's trying to get rid of drugs."
Tice said someone eventually opened the apartment door about an inch and he immediately detected a "common smell," associated with methamphetamine labs.
"At that point, my tongue actually went numb," Tice testified. The officer said he saw mason jars lying on the floor with plastic tubing, and subsequently evacuated the three men inside - Ketterman, Hebb and Manley - for safety reasons.
Upon obtaining a search warrant for the apartment, Tice found a slew of products commonly used to make meth, including lye, coffee filters, plastic tubing, Coleman fuel, lithium batteries and a substance that field-tested positive for methamphetamine - approximately 21 grams of it.
"As we were removing the subjects, Mr. Ketterman told me that there was no active cook in there (the apartment) - that they (Hebb and Manley) cooked it outside and brought it back upstairs," Tice said. Ketterman also told Tice he hadn't been involved in the cook and that he'd arrived at the residence about five minutes before Tice did, the officer said.
During cross-examination, Hawkins lamented what he claimed was a lack of evidence specifically linking Ketterman to the alleged crime.
"Mr. Ketterman never acknowledged being involved in the cook?" Hawkins asked.
"No," Tice answered.
"And you don't have any evidence that he participated in this?"
"That's correct," Tice replied.
Hawkins pointed out that Tice couldn't definitively connect any of the defendants to the lab.
"Any of them could be innocent you don't know," Hawkins said.
"Any of them could be," Tice replied, "or any of them could be guilty."
"So you arrest them all and let them sort it out later?" Hawkins asked.
Tice pointed out that Ketterman was present when someone was attempting to operate a lab and hadn't taken any action to extricate himself from the area.
In his closing argument, Hawkins said that the state hadn't presented any evidence indicating Ketterman had played a role in creating the lab.
"I challenge the state in its rebuttal to come up with evidence other than him being there," Hawkins said forcefully. "Mere presence at the scene of a crime does not make you guilty of the offense. (Tice) can't tell if Mr. Ketterman was at the apartment for one minute or five minutes or 10 minutes or an hour or less. The state is required to offer proof that this man committed a crime, but we don't even have evidence of that. You can't even show that he had any precursors.
"You can't throw something at the wall and hope it sticks," Hawkins continued, referring to Tice's arrest of all three men.
Assistant Prosecuting Attorney Lori Gray countered that Hawkins' arguments were based on a number of hypotheticals, including the assumption that Ketterman was telling the truth.
"So I guess she's not going to tell us how he participated," Hawkins retorted.
"There was meth, there was a final product, it burned the officer's tongue," Gray said. "He did not offer up any evidence - "
"I object," Hawkins interrupted. "That is a Fifth Amendment right. He does not have to prove he's innocent."
Gray said Hawkins had misinterpreted what she was about to say.
"I'm done," she said.
After a minute or two of silence, Riggleman announced his decision, saying he was going to find probable cause and bind it over to the grand jury.
"I'd like to know what Michael Ketterman did to operate or attempt to operate it (a lab)," Hawkins said.
"He was there," Riggleman replied.
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