WEIRTON - Hancock County Assistant Prosecutor David F. Cross plans to argue before the West Virginia Supreme Court of Appeals that Judge Fred Fox II ignored state law and abused his power when he dismissed a felony murder charge against a local teenager whose cousin was shot and killed when the pair allegedly attempted to rob a Weirton gas station last year.
But the defendant in that case, James Sands II of Follansbee, isn't the only one with reason to keep close watch on the high court's decision.
How the justices rule may play a crucial role in deciding the fate of Melody Fisher, a 40-year-old Beech Bottom woman indicted this week on a felony murder charge based on her alleged role in a robbery attempt that ended when a Wheeling pharmacy employee shot and killed 37-year-old Kevin Walnoha of Wellsburg when he jumped the counter and demanded prescription pills at gunpoint. Her trial has been set for Dec. 17, and she faces life in prison if convicted.
There's no doubt West Virginia law views the death of an innocent crime victim - accidental or otherwise - as first-degree murder. The essential issue before the court is whether the Legislature intended for that to apply when it is one of the accused who dies.
Early Dec. 12, Weirton police responded to the A&M Quick Stop, where they found 18-year-old Dakota Givens of Follansbee lying on the pavement, reportedly shot by the store's owner as he was entering a window. Both Sands and Givens' girlfriend, 18-year-old Chelsea Metz - who police said waited in a car about a block away as the other two teens approached the store - were arrested at the scene.
Murder, robbery and conspiracy charges against Metz were later dismissed when she pleaded guilty to an obstruction charge. Prosecutors determined she played a minor role in the alleged robbery plot. On April 19, Fox - standing in for Circuit Judge Martin Gaughan, who was recovering from a stroke at the time - granted a defense motion to dismiss the murder charge against Sands, who still faces felony robbery and conspiracy charges.
The prosecution filed with the high court seeking a writ prohibiting the court from enforcing Fox's dismissal order. Both sides have submitted briefs, and the matter has been set for oral argument in Charleston on Sept. 26.
Cross believes it was the Legislature's intent to discourage criminal behavior by providing for stiff penalties when such behavior has tragic results - for anyone involved.
"Our position is when you read the statute, it doesn't matter who dies. ... You're creating a risk of death by engaging in that kind of conduct," Cross said.
Fox's ruling "misapplied these legal principles by finding ambiguity where there is none. ..." Cross's brief states. "(T)he better view in jurisdictions around the country is that where the felony murder statute does not specify that a felony murder victim must be a victim of the underlying felony, the statute covers all deaths occurring during the commission of the underlying felony, including the deaths of coperpetrators who are killed by felony victims or law enforcement officers."
Sands' attorneys, Martin Sheehan and Amanda Mesler, argue Cross's claim that Fox disregarded the "plain meaning" of the statute when he dismissed the murder charge is invalid because West Virginia code does not define murder itself - it only distinguishes between degrees of murder by outlining the elements of first-degree murder and stating, "All other murder is murder of the second degree."
The absence of such a definition in the statute, they argue, meant Fox had to look to prior case law for guidance.
"The common law is a vital and essential component in the definition of the elements of murder in West Virginia. ... Judge Fox carefully sifted the common law as part of his decision making," the defense attorneys' brief states. "That was not error. That is what a good judge was required to do. ...
"The (principal) difference in the two outcomes depends on how felony murder is conceived. Where it is viewed as a partnership in a criminal venture, with each defendant liable for the acts of his partners, there is no liability for felony murder where the fatal shot that kills a co-participant is fired by a person resisting the felony. ... The more expansive view depends on a theory of proximate cause. Once a criminal scheme is begun, every event that might supply proximate cause for a death is considered to be rooted in criminal behavior. Judge Fox understood the choice. ... He found holding Mr. Sands, who exhibited no potential for violence - neither the decedent or the individuals charged were armed in any way - potentially culpable on these peculiar facts illogical and wrong."