WHEELING - Circuit Judge James Mazzone will wait to address a motion to dismiss a felony murder charge against Melody Fisher until the West Virginia Supreme Court of Appeals issues a mandate finalizing its precedent-setting ruling last week in a similar case.
During a status hearing Wednesday, Mazzone also granted a motion by Fisher's attorney, Stephen Herndon, to continue her previously scheduled Dec. 17 trial date on the murder charge and counts of first-degree robbery and conspiracy.
Fisher, 40, of Beech Bottom faces those charges for her alleged role in the May 25 robbery of the Elm Grove Pharmacy. Police believe she fled the scene after a pharmacy employee fatally shot 37-year-old Kevin Walnoha, who reportedly jumped over the counter and demanded pills.
Although Fisher did not fire the fatal shot, Ohio County Prosecutor Scott Smith obtained an indictment charging her with Walnoha's murder, claiming Fisher was responsible because his death occurred in the commission of a felony in which she took part. But the Supreme Court last Thursday unanimously upheld the dismissal of a murder charge against the defendant in a December gas station burglary in Weirton, ruling that a surviving co-conspirator cannot be charged with an accomplice's murder when a crime victim kills in self-defense.
That ruling appears to have major implications in Fisher's case, but it is not considered final until the court issues a mandate - which can't happen for at least 30 days, according to the Rules of Appellate Procedure.
Regarding his motion to continue the case, Herndon told Mazzone he could not realistically be ready for trial on Dec. 17. Smith offered no objection.
"Only today did we get the video surveillance of the events at the pharmacy," said Herndon.
Smith said he expected it would take three days to try the case, while Herndon said he believed it could be done in two. Mazzone ultimately set the trial for Jan. 29-31, and is expected to consider defense motions to dismiss the murder charge as well as suppress evidence including Walnoha's autopsy results and accompanying photos on Dec. 17.
Following Wednesday's hearing, Smith declined to say whether there was any circumstance which would allow him to pursue the murder charge even if the Supreme Court's ruling becomes final.
"We'll cross that bridge when we come to it," he said.