Davis v. Fox

• Decision Date: 08 November 2012
• Docket Number: No. 12–0603.,12–0603.
• Citation: 735 S.E.2d 259,229 W.Va. 662
• Parties: Ser James DAVIS, Prosecuting Attorney, Petitioner v. The Honorable Fred L. FOX, II, Judge and James Michael Sands, Respondents.
• Court: West Virginia Supreme Court

229 W.Va. 662

735 S.E.2d 259

Ser James DAVIS, Prosecuting Attorney, Petitioner

v.The Honorable Fred L. FOX, II, Judge and James Michael Sands, Respondents.

No. 12–0603.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 2012.

Decided Nov. 8, 2012.

Syllabus by the Court

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syl. Pt. 4, State ex. rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. “ ‘[T]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt.’ State v. Williams, 172 W.Va. 295, 305 S.E.2d 251, 267 (1983).” Syl. Pt. 5, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987).

3. “A person cannot be charged with felony-murder pursuant to W.Va.Code § 61–2–1 (1989) if the only death which occurred in the commission of the underlying felony was the suicide of a co-conspirator in the criminal enterprise.” Syl. Pt. 2, State ex rel. Painter v. Zakaib, 186 W.Va. 82, 411 S.E.2d 25 (1991).

4. When a co-perpetrator is killed by the intended victim of a burglary during the commission of a crime, the surviving co-perpetrator cannot be charged with felony murder pursuant to West Virginia Code § 61–2–1 (2010).

David F. Cross, Prosecuting Attorney's Office, Wellsburg, WV, for Petitioner.

Martin P. Sheehan, Sheehan & Nugent, Wheeling, WV, for Respondent, James Michael Sands.

McHUGH, Justice:

Through means of a writ of prohibition, James Davis, the Prosecuting Attorney of Hancock County (hereinafter “Petitioner”), seeks to prevent the enforcement of the April 19, 2012, order of the Honorable Fred L. Fox II, dismissing one count of felony murder from the indictment returned against James Michael Sands. In dismissing the felony murder count, the trial court took the position that a co-perpetrator, Mr. Sands, could not be found guilty of felony murder where the intended victim of a burglary was the person who caused the death of a co-perpetrator, Dakota Givens. Identifying this issue as one of first impression, the trial court looked to the position adopted by a majority of other states in concluding that the facts of this case did not fit the offense of felony murder. Upon our careful review of this issue, we agree with the circuit court's decision that the offense of felony murder does not encompass the death of a co-perpetrator caused by the intended victim of a burglary attempt. Having found no error in the circuit court's decision to dismiss the felony murder count, we find no basis for issuing a writ of prohibition.

I. Factual and Procedural Background

On December 12, 2011, Mr. Sands, a high school senior, and Dakota Givens attempted to burglarize a convenience store located in Weirton, West Virginia. In the course of the attempted burglary, the owner of the store's son shot and killed Mr. Givens. Mr. Sands and Mr. Givens' girlfriend, Chelsea L. Metz, were arrested at the scene.¹ As a result of these events, Mr. Sands was indicted by a grand jury in the Circuit Court of Hancock County on three charges: felony murder; attempted nighttime burglary; and conspiracy.

On February 24, 2102, Mr. Sands filed a motion to dismiss count I, felony murder, for failure to allege a crime. A hearing was held before Judge Fox on this motion on March 19, 2012. By order entered on April 19, 2012, the circuit court dismissed the felony murder count for failure to allege a crime.

II. Standard of Review

Our review of this matter is governed by the standard we first articulated in syllabus point four of State ex. rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

With this standard in mind, we proceed to determine whether the Petitioner has demonstrated sufficient grounds for the issuance of a writ of prohibition.

III. Discussion

Petitioner seeks to persuade us that the offense of felony murder should apply to the facts of this case. To support his position, he focuses on the language of West Virginia Code § 61–2–1 (2010), our statute which categorizes by degree various types of murder. Pursuant to this statute, the following acts constitute first degree murder:

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, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four [§§ 60A–4–401 et seq.] chapter sixty-a of this code, is murder of the first degree. All other murder is murder of the second degree.

W.Va.Code § 61–2–1; see Syl. Pt. 6, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978) (recognizing that felony murder is one of three broad categories of first degree murder under W.Va.Code § 61–2–1).

From the clear and unambiguous language used in West Virginia Code § 62–2–1, Petitioner argues that felony murder is not limited to those situations where the murder victim was also the victim of the underlying felony. Petitioner contends that the statute, by its terms, permits an expansive interpretation that would extend the offense of felony murder to encompass every death which occurs during the commission of a statutorily-specified felony. See id. Acknowledging this position as the minority position, Petitioner urges us to adopt what he calls the “better view,” by following those jurisdictions that consider all deaths which occur during the commission of the underlying felony as felony murder where the felony murder statute does not specify that a felony murder victim must also be a victim of the underlying felony. See, e.g., State v. Jackson, 287 Ga. 646, 697 S.E.2d 757, 767 (2010) (overturning dismissal of felony murder charges and remanding for determination of whether surviving co-felons were criminally responsible under proximate causation principles where intended victim killed co-felon); Forney v. State, 742 N.E.2d 934, 938 (Ind.2001) (recognizing that felony murder applies to death of co-perpetrator based on statutory language that defines the offense in terms of “contribut[ing]to the death of any person”); People v. Klebanowski, 221 Ill.2d 538, 304 Ill.Dec. 357, 852 N.E.2d 813, 823 (2006) (applying proximate causation theory of liability to convict co-felon of felon's death caused by robbery victim); State v. Wright, 379 So.2d 96 (Fla.1980) (recognizing that felony murder statute is not restricted to homicides of innocent victims during perpetration of felony).

Despite the categorization of murder offenses accomplished by West Virginia § 62–2–1,² the offense of murder remains undefined. See State v. Abbott, 8 W.Va. 741, 746–47 (1875); accord 9B Michie's Jurisprudence, Homicide § 9 at 16 (2005) (stating that “[w]hile the statutes distinguish the degrees of murder, they do not define murder itself”). As a result, common law is still required to identify what constitutes murder. ³ In the instance of felony murder, we held in syllabus point five of State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987), that “ ‘[t]he elements which the State is required to prove to obtain a conviction of felony murder are: (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt.’ State v. Williams, , 305 S.E.2d 251 (1983).”

We explored the common law foundations of felony murder in State v. Sims, 162 W.Va. 212, 248...