State high court sides with county prosecutor

June 04, 2010|By MATTHEW UMSTEAD

MARTINSBURG, W.Va. -- The state's case against a former volunteer firefighter accused of starting a fire in which another volunteer firefighter was injured can proceed as indicted, Berkeley County Prosecuting Attorney Pamela Jean Games-Neely said Thursday.

The Supreme Court of Appeals of West Virginia filed a decision on Thursday granting the prosecutor's petition for a writ of prohibition in the state's case against James L. Blackford III, according to Jennifer Bundy, the high court's public information officer.

The Supreme Court's decision overrules a ruling in March by 23rd Circuit Judge Gray Silver III, who dismissed the first-degree arson count contained in Blackford's indictment.

Blackford, 31, of 167 Laing Drive, Martinsburg, was indicted in October 2009, on felony counts of first-degree arson, setting fire to lands and arson resulting in serious bodily injury.

Silver granted the dismissal based on double-jeopardy arguments that the defendant was being prosecuted twice for the same offense.

In challenging the double-jeopardy ruling, Games-Neely argued that there are two victims in the April 7, 2009 fire: Baker Heights Volunteer Fire Department firefighter Kenneth Ayers, who was seriously injured while battling the blaze, and Anna May Kelley, the owner of the barn at 1495 Williamsport Pike.

In an opinion delivered by Justice Thomas E. McHugh, the high court ruled that the state Legislature intended that "the same acts that constitute the offense of arson in the first degree under West Virginia Code ... may also constitute the offense of arson resulting in serious bodily injury if the felonious conduct at issue maims, disfigures or disables any person resulting in serious bodily injury."

The court ruled that the Legislature's enactment of the code allowing for a charge of arson resulting in serious bodily injury was intended to impose "enhanced punishment" and that Silver committed an error in dismissing the first-degree arson charge.

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