NEW CUMBERLAND - A Hancock County judge dismissed a first-degree murder charge against James Sands II, accused of conspiring in a December burglary attempt during which the property owner fatally shot one of Sands' alleged accomplices.
In his order granting a defense motion to dismiss, Senior Status Judge Fred Fox II said holding Sands responsible for the death of 18-year-old Dakota Givens would be "illogical" and "unjust." Though he acknowledged West Virginia's murder statute on its face supports a first-degree murder charge, Fox said there was enough ambiguity about the statute's intent as it applies to Sands to justify further scrutiny.
On Dec. 12, Sands, Givens and Chelsea Metz, all 18-year-old Follansbee residents, allegedly conspired to steal imitation marijuana from the A&M Quick Stop on South 11th Street in Weirton. Maher A. Alwishah, who owns and lives in the building and was not charged in Givens' death, reportedly shot and killed Givens as he was entering a store window.
"It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice," Fox wrote. "It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity."
West Virginia code defines first-degree murder as "murder by poison, lying in wait, imprisonment, starving or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering ..."
Noting a lack of precedent on this specific issue from the West Virginia Supreme Court of Appeals, Fox cited a 1991 case, Painter v. Zakaib, in which a neighbor interrupted three juveniles' attempt to burglarize a Charleston home, one of whom committed suicide before police could arrest him. James F. Painter, who recruited one of the youth to kill the homeowner, later was charged with the suicidal burglar's murder.
Despite the obvious difference in circumstances, Fox wrote that the justices' decision to dismiss the murder charge against Painter "does reflect that our Supreme Court of Appeals did not follow the literal sense of the words contained in" the murder statute.
He also noted appellate courts in several other states have ruled a conspirator cannot be convicted of the murder of an accomplice killed by the victim of the original felony.
Hancock County Prosecutor James Davis Jr. could not be reached Wednesday for comment on the ruling.
In March, Fox dismissed felony first-degree murder, burglary and conspiracy charges against Metz, who pleaded guilty to misdemeanor obstruction and was fined $50. She reportedly waited in the backseat of a car about a block away while Givens and Sands approached the store.
At that time, Davis said he fully intended to pursue the murder charge against Sands, who still faces felony burglary and conspiracy charges and remains free on bond.
