CHARLESTON, W.Va. -- The West Virginia Supreme Court says a perpetrator can't be charged with felony murder when a co-perpetrator is killed by the intended victim.
The court says felony murder's origins are in West Virginia's common law and the offense always has involved the death of a victim of the felony or a police officer.
"And until such time as the Legislature sees fit to further amend [state code], we do not accept Petitioner's argument that the criminal offense of felony murder encompasses every death that occurs in the course of a statutorily-enumerated felony regardless of who causes the death,'' stated the unanimous opinion written by Justice Thomas McHugh.
The decision came Thursday in a Hancock County case involving an attempted burglary at a store in Weirton in December 2011. The store's owner shot and killed one of the suspects, 18-year-old Dakota Givens of Follansbee.
In April, Hancock County Circuit Court Judge Fred Fox dismissed a felony murder charge against another suspect, 19-year-old James Sands II of Follansbee. Prosecutor James Davis Jr. appealed the dismissal to the Supreme Court, which upheld Fox's ruling.
Assistant prosecutor David F. Cross told The Intelligencer and Wheeling-News Register that the court's ruling did not surprise him.
"That's what they decided, so now we know what the law in West Virginia is,'' Cross said. "We thought it was important to raise the issue before the court.''
Sands still faces burglary and conspiracy charges. In April, Fox dismissed charges against a co-defendant, 18-year-old Chelsea Metz. She pleaded guilty to misdemeanor obstruction and was fined $50.
A similar case is pending in Ohio County, where an employee of a pharmacy in Wheeling fatally shot a suspect during a robbery attempt. Another suspect, Melody Fisher, 40, of Beech Bottom, is charged with felony murder in that case.
Ohio County prosecutor Scott Smith said he was aware of the potential for the court's ruling in the Hancock County case. But he said he thought it would be best to proceed and await the justices' ruling.
"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.
A status hearing for Fisher is set for Wednesday. Smith said he expects the murder charge will be addressed then. She also is charged with robbery and conspiracy.