Judge to decide if evidence supports McLee drug charge
A Fayette County judge will determine if there is enough evidence to support the most serious drug charge brought against a Uniontown man who was a standout high school and college football player. Attorney Donald Zaycosky, who represents Cleo Kevin “Boo” McLee, 24, argued Tuesday that there was not sufficient evidence to prove that McLee intended to distribute the 2.8 grams of cocaine he allegedly had in his back pocket during a traffic stop on Oct. 18, 2007.
Trooper Robert McGarvey testified that he pulled over McLee around 1:45 a.m. after he failed to signal a turn. McGarvey said he also noted other violations during the stop on Austin Street, but decided to give McLee a written warning.
After he wrote out the warning, McGarvey testified that he asked McLee to get out of his car. McGarvey testified that is the custom of him and his partner, Trooper Michael Irwin.
When McLee got out of the car, McGarvey testified he noticed large bulges in both of McLee’s front pants pockets.
McGarvey said he patted McLee down, and was unable to determine if he had a weapon on him. McLee reportedly told the trooper that there was money in his right front pants pocket, McGarvey said.
As he felt the other pocket, McGarvey testified that he felt an object that seemed to be a plastic bag. Plastic bags are commonly used to package drugs.
There was $506 in cash in McLee’s right pocket and cigars, lighters and plastic bags of marijuana in McLee’s left pocket, McGarvey testified. The trooper told District Attorney Nancy D. Vernon that the money was in small bills, mostly ones and fives.
The trooper said he arrested McLee and searched his remaining pockets. During that search, the trooper testified he found powder cocaine in McLee’s back pocket.
The marijuana weighed 1.9 grams and the cocaine weighed 2.8 grams.
State police Cpl. Dennis Ulery testified as a drug-trafficking expert, and indicated that the amount of cocaine McLee had is “consistent with someone who is distributing drugs.”
Under cross-examination, Zaycosky asked Ulery if 2.8 grams of cocaine could be for personal use. Ulery testified it was “possible,” but that it was likely for the use of more than one person.
McLee also is charged with possession of cocaine and marijuana and possession of drug paraphernalia.
The charge of possession with the intent to deliver powder cocaine was withdrawn at McLee’s hearing Feb. 12 when an expert witness who would have buttressed the charge was not available to testify.
Vernon refiled the charge three days later, indicating the deputy prosecutor who appeared at McLee’s preliminary hearing should have requested a continuance instead of withdrawing the charge.
Vernon said she was careful to refile the charge because she has a policy of maintaining such serious charges, and because she did not want there to be the impression that an athlete was given special treatment.
Zaycosky questioned McGarvey about what prompted him to ask McLee to step out of the car. The trooper testified it was customary for him to ask people to do so. McGarvey testified he did not see any weapons or drugs in McLee’s vehicle, and said that he was not afraid of McLee.
McGarvey testified he did not suspect any criminal activity until McLee stepped out of his car and he could view the bulges in McLee’s pockets.
“I did not know if there were any weapons in his pockets,” McGarvey testified, indicating the reason for his search.
Zaycosky also claimed that there was no valid reason for police to pat McLee down and ask him to step out of his car. Zaycosky argued that McGarvey asked McLee to step out of his car under the “false premise for a subsequent search.”
Once McGarvey wrote McLee a warning for the traffic violations, Zaycosky argued that the traffic stop was over, and anything that came after should be thrown out.
Vernon said McGarvey could ask McLee to step out of the car for personal contact during the traffic stop.
The pat down, she countered, was justified because McGarvey could not tell if McLee had a weapon on him.
She further argued that the amount of cocaine, combined with Ulery’s testimony, was enough evidence to allow jurors to decide why McLee had the cocaine.
McLee played football at Uniontown Area High School and went on to play four years with the West Virginia University Mountaineers football team.
During that time, McLee racked up more than 200 tackles and led the team in tackles in the Gator Bowl as a sophomore in 2004, earned a spot on ESPN’s All-Conference Team in 2005 and was selected to the All-Big East team in 2006.
McLee signed with the St. Louis Rams after going undrafted in the 2007 NFL draft, but he left the team’s training camp after only a few days.
At an earlier preliminary hearing, McLee said he had signed a one-year contract with the Calgary Stampeders, though he is not listed on the Canadian Football League team’s roster.
McLee did not attend the hearing because he was working out of state, Zaycosky said.
Judge Steve P. Leskinen will rule at a later date.