Fatal carjacking shooting ruled 'justifiable'

MARTINSBURG, W.Va. — A Berkeley County grand jury Wednesday decided against  further investigation of two Martinsburg police officers who shot a man multiple times after he carjacked a woman and her 4-year-old daughter at Martinsburg Mall.

The jury concluded the Sept. 26 shooting of Michael Kelly Silver, 42, by Martinsburg Police Lt. Terry Stanley and Cpl. Adam Albaugh was "justifiable" after considering evidence compiled from "a substantial portion" of the investigation by the Eastern Panhandle Drug and Violent Crime Task Force, Berkeley County Prosecuting Attorney Pamela Games-Neely said.

Silver, whose death notice said he is from Berkeley Springs, W.Va., was pronounced dead at City Hospital in Martinsburg after the police officers shot him multiple times in the ATM lane of the drive-through at My Bank! First United Bank & Trust at 980 Foxcroft Ave., police have said.

Stanley shot Silver with his duty weapon handgun and Albaugh used a department-issued shotgun, Games-Neely said.

An autopsy found that Silver died from gunshot wounds, Games-Neely said.

Under standard procedure, both officers were placed on administrative leave pending the outcome of the investigation, Martinsburg Police Chief Kevin Miller said the night of the shooting.

Miller could not be reached for comment Wednesday, and Games-Neely did not know if the officers had returned to regular duty after her office notified the police department of the grand jury's decision.

The grand jury could have requested additional investigation, decided to indict or declined to proceed with further investigation as part of a three-step process that Games-Neely said last month was put in place several years ago to "keep everybody above-board."

The incident began at the bank as the woman was attempting to get out of the passenger side of the car, a black sedan, after it was blocked in the bank drive-through by two police cruisers.

The officers approached from the front and rear of the vehicle, and ordered Silver to follow multiple commands, police had said. After he didn't comply, one officer grabbed the woman and pulled her aside just as the suspect pointed what appeared to be a black pistol at him, prompting the officers to shoot, police said.

The officers stopped shooting when one of the them spotted the girl in the back seat of the vehicle where she was riding in a child-safety seat that wasn't immediately visible to the officers, according to police and Games-Neely.

The child also was very small for her age, and a woman who reported the carjacking outside J.C. Penney at the mall did not see the girl in the vehicle, according to Games-Neely.

Neither the girl nor the mother was harmed, police had said.

The suspect's weapon, later determined to be a black BB pistol, was found on the driver's-side floorboard of the vehicle, police have said.

Police were able to block the victim's car at the bank after being alerted by a woman who reported the carjacking, police said.

Officers were dispatched to investigate at 6:24 p.m., police said.

The suspect threatened the victim with a knife to carjack the vehicle, and a pocket-style knife was later found in Silver's possession, police said.

After witnessing the carjacking at the mall at 800 Foxcroft Ave., the woman who alerted police followed the victim's car to the Waffle House near the south end of Foxcroft Avenue, police had said.

The vehicle was at the Waffle House for a short time, and the witness told police that the suspect then drove to the bank's ATM, police said.

The West Virginia State Police and members of the task force joined Martinsburg police in the investigation. The Berkeley County Sheriff's Department also assisted.

Silver had numerous run-ins with law enforcement and had a substantial criminal history, Games-Neely said.

At the time Silver was shot, active warrants for his arrest on charges of breaking and entering, conspiracy to commit second-degree robbery, armed robbery of a bank and robbery still were pending in three states, police had said.

Silver was wanted by police in Chambersburg, Pa., for the robbery of the F&M Trust branch at 841 Wayne Ave., and was previously sentenced to federal prison for robbing the same bank in 2003, according to police and court records.