Davis v. Fox, 735 S.E.2d 259

Davis seeks to prohibit enforcement of a circuit court order dismissing one count of felony murder from Sands' indictment.
Trial court dismissed felony-murder count on the theory that a co-perpetrator could not be convicted where the intended burglary victim killed the co-perp.
Sands was indicted for felony murder, attempted nighttime burglary, and conspiracy related to a December 12, 2011 burglary attempt at a Weirton, WV store; the store owner's son killed Dakota Givens.
The court relied on a majority/minority debate across states and ultimately adopted the dissenting view that felony murder does not extend to a co-perp killed by the intended victim.
The issue centers on the interpretation of WV Code § 61-2-1 and the common-law foundation of felony murder in West Virginia.
Court concludes that felony murder does not apply to a co-perp killed by the intended burglary victim; writ of prohibition denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether felony murder extends to a co-perp killed by the intended victim	Davis contends the statute permits broad application.	Sands/Sands' position relies on common-law foundations and statutory language to allow broader reach.	Felony murder does not extend to the co-perp killed by the intended victim.
Proper interpretation of WV Code § 61-2-1 and its relation to common law	Statutory text supports broader felony-murder liability.	Statute remains grounded in common-law murder definitions and limits.	Statutory felony murder remains anchored in common law and does not cover this co-perp scenario.
Whether the circuit court erred in stating the elements of felony murder	Court mischaracterized the elements, expanding beyond the statute.	Elements align with Mayle/Sims framework and WV case law.	No clear error; elements as stated are correct under WV law.
Whether the writ of prohibition should issue	Petitioner seeks to prevent improper application of the felony-murder rule.	There is no error justifying prohibition given the control of the circuit court.	Writ denied.

State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978) (defines felony murder elements and WV approach)
State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996) (five-factor test for writs of prohibition)
Painter v. Zakaib, 186 W.Va. 82, 411 S.E.2d 25 (1991) (discusses status of co-conspirator deaths and statute interpretation)
Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987) (syllabus on felony-murder elements)
State v. Williams, 172 W.Va. 295, 305 S.E.2d 251 (1983) (elements of felony murder and de-emphasis of malice requirement)
Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958) (imputed malice and limitations on co-perp killings)
Wooden v. Commonwealth, 222 Va. 758, 284 S.E.2d 811 (1981) (majority view limiting felony murder when victim co-perpels)
People v. Washington, 62 Cal.2d 777, 402 P.2d 130 (1965) (criticisms of felony-murder doctrine and narrow application)