WEIRTON - In a precedent-setting decision, the West Virginia Supreme Court of Appeals ruled Thursday that surviving co-conspirators cannot be charged with murder when an intended burglary victim kills an intruder in self-defense.
The court's decision upheld Senior Status Judge Fred Fox II's April dismissal of a felony murder charge against 19-year-old James Sands II of Follansbee, resulting from an alleged December 2011 burglary attempt in which a Weirton gas station owner's son shot and killed 18-year-old Dakota Givens, also of Follansbee.
Hancock County Prosecutor James Davis Jr. had appealed to the high court seeking a writ of prohibition that would have reinstated the murder count.
Writing on behalf of a unanimous court, Justice Thomas McHugh declared that prosecutors failed to demonstrate Fox was "clearly erroneous" in dismissing the charge, and the Supreme Court rejects the view that West Virginia's murder statute applies regardless of whether it is a victim or criminal who dies in the commission of a felony "until such time as the Legislature sees fit to further amend" state code.
The requirement a death be that of either a crime victim or law enforcement officer to support a felony murder charge in such cases is "deeply ensconced" in common law, McHugh wrote.
Hancock County Assistant Prosecutor David F. Cross, who argued the case before the Supreme Court in September, said he was not surprised by the court's ruling, acknowledging that several other states have taken the view adopted by the high court in the Sands case.
"That's what they decided, so now we know what the law in West Virginia is," Cross said of the ruling. "We thought it was important to raise the issue before the court."
Thursday's decision has major implications in another local case, that of Melody Fisher, a 40-year-old Beech Bottom resident charged with murder, first-degree robbery and conspiracy to commit robbery in connection with an alleged May 25 robbery attempt at the Elm Grove Pharmacy in Wheeling. A pharmacy employee fatally shot 37-year-old Kevin Walnoha, who reportedly jumped behind the counter and demanded pills.
Ohio County Prosecutor Scott Smith said he anticipates the murder charge against Fisher will be addressed during a status hearing on Wednesday. He said he sought the murder indictment knowing full well the potential for Thursday's outcome, but felt it would be best to proceed and await the justices' ruling.
Smith said he respects the court's decision but does not necessarily agree with its consequences.
"In my opinion, when two or more people engage in a very serious crime which poses a potential for loss of life for innocent bystanders, there should be serious repercussions," said Smith.
No matter what happens with the murder charge, Smith said Fisher will still face the robbery and conspiracy charges, though he stressed she is innocent until proven guilty.
Likewise, Sands still faces burglary and conspiracy charges in connection with the Hancock County case. He remains free on bond pending further proceedings. He is being represented by attorneys Martin Sheehan and Amanda Mesler.
A second teen charged in that case, Chelsea Metz of Follansbee, pleaded guilty to misdemeanor obstruction in March. Prosecutors dropped murder, conspiracy and burglary charges against her after determining her role in the alleged conspiracy was minimal.