MARTINSBURG, W.Va.—Berkeley County Prosecuting Attorney Pamela Games-Neely confirmed Friday that she decided not to appeal a circuit judge’s decision to dismiss felony murder charges against two men in a 2008 club shooting near Martinsburg.
Games-Neely said she made the decision after conducting additional research and upon reviewing the March 4 ruling by Berkeley County Circuit Court Judge Gray Silver III in the state’s case against Dale E. Knight, 26, and Donzell W. White, 27.
Games-Neely also filed for the dismissal of first-degree robbery and conspiracy that were also pending against the defendants, who had been indicted in May 2011 in connection with the death of Kenneth E. Waybright at the now former Orioles Club along Mid Atlantic Parkway.
Jail release orders for the 2011 charges were filed Thursday in Berkeley County Circuit Clerk Virginia M. Sine’s office.
Knight remains incarcerated at Eastern Regional Jail on an unrelated federal case, according to court and jail records.
The 2011 indictment alleged that Knight and White were attempting to rob Elan Bell-Veney, a third man charged in Waybright’s death, according to court documents.
Authorities alleged that Bell-Veney resisted being robbed by shooting at the Knight and White.
Police determined that Waybright was an innocent bystander who died after being struck by a bullet that ricocheted and struck him in the head, according to court documents.
Games-Neely said her office does not like the outcome of the case and indicated state law needs to be changed to consider innocent bystanders in such cases.
In his March 4 ruling, Silver cited a recent state Supreme Court of Appeals decision in another felony murder case, which declared that when “a killing is not committed by a robber or by his accomplice, but his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery.”
Bell-Veney was sentenced to six years in prison in May 2011 for his role in the shooting after pleaded guilty to involuntary manslaughter and wanton endangerment.
Defense attorney Nicholas F. Colvin said the state Supreme Court’s ruling and Silver’s subsequent decision in light of the high court’s decision, effectively places West Virginia with other states that have put limitations on the scope of felony murder.
“Although perhaps difficult to understand at first blush, the court’s ruling to dismiss these charges, represents and embraces our American commitment to justice and fairness under the law,” Colvin said in a prepared statement.
Colvin, along with Greg Smith, represented White in the case and filed the initial motion to dismiss in December 2012, according to court documents.
“(We) have been honored to represent Mr. Donzell White’s legal interests throughout his odyssey through the court system,” Colvin said.
“Donzell is a loving father whose young girls have endured a difficult journey since the inception of these horrible events back in 2008.”
Defense attorney Kirk H. Bottner, co-counsel in Knight’s case, said Friday he and defense attorney J. Mark Sutton were “thrilled” for their client.