Wiseley appeals dismissal of shooting death case

WOODSTOCK – Shenandoah County’s chief prosecutor is appealing a judge’s decision to dismiss a case against a man accused of accidentally shooting and killing a woman in 2014.

Authorities had charged Shawn Jason Nicely of involuntary manslaughter and reckless handling of a firearm resulting in serious bodily injury for the Nov. 23, 2014, shooting death of 46-year-old Gina Shoemaker. Investigators say Nicely fired a 30.06 rifle from property at 37 Charlotte Lane, Mount Jackson, into a home at 259 Charlotte Lane. Shoemaker died after a round struck her.

Judge Dennis L. Hupp granted a motion by defense attorney Robert L. Vaughn Jr. to dismiss the case against Nicely in late April because Commonwealth’s Attorney Amanda Wisely violated his client’s right to a speedy trial, according to documents filed in the Shenandoah County Circuit Court.

Wiseley filed a petition with the Virginia Court of Appeals seeking to appeal Hupp’s decision on the defense motion. Wiseley outlines her argument in the petition the appellate court received Thursday. The prosecutor referred to her petition when asked for comment Friday.

“The trial court erred in granting the motion to dismiss as the Defendant consented – in fact suggested – a trial date outside the speedy trial deadline,” Wiseley states in the petition. “The trial court erred in granting the motion to dismiss where the trial court explicitly found that ‘crucial,’ ‘essential,’ and ‘material’ witnesses for the Commonwealth were ‘kept away’ from the original trial date … The trial court erred by failing to charge to the defendant, for purposes of speedy trial, the delay caused by numerous hearings on the defendant’s motions.”

Wiseley also argued the trial court erred when it did not exclude the continuance period from June 8-29, 2015, from its speedy trial calculation. The prosecutor states the appellate court should reverse Hupp’s decision and remand the case back to the lower court should it agree with Wiseley on any of the four errors cited in the petitition.

Hupp heard arguments from both sides during a hearing April 1 and took the matter under advisement until he made a ruling later that month. The court granted the defense motion to dismiss for denial of speedy trial by order dated May 9.

“I do not like the decision that I made today,” Hupp states in an April 26 letter to Wiseley and Vaughn, filed in the court. “As I have carefully reviewed the case law and have come to the conclusion that the charges against Mr. Nicely must be dismissed for failure to comply with the statutory speedy trial requirement, this decision, quite candidly, has become gut-wrenching. This does not stem from any bias toward the Commonwealth but from the gravity of this case and from my firm belief that justice is ordinarily better served when cases are decided on their merits rather than on procedural issues.”

“An innocent life has been lost, a woman killed in the supposed safety of her own home, and in view of the gravity of that situation, it chagrins me to have this case resolved on a procedural issue rather than having the ultimate question of whether Mr. Nicely is criminally responsible for her death decided on its merits,” Hupp goes on to state.

The judge points out that Vaughn correctly asserted that the prosecution bears the burden of bringing a defendant to trial within the time frame set by the state code.

Hupp goes on to admit that “I share responsibility for our failure to do so.”

“It appears to me that the bereaved family members of Gina Angela Shoemaker may still pursue their civil remedies, and I hope that they can find some sense of closure in that,” Hupp states in the letter to Wiseley and Vaughn.

Hupp states that his analysis of the speedy trial requirement extended the deadline to March 8, later noting that the period began June 8, 2015. State code requires that a defendant not held in custody and the subject of a direct indictment must face trial within nine months of his or her arrest on the indictment. Should the trial not occur within that window, the court must dismiss the charges, Hupp notes. The code provides a few exceptions that extend the nine-month time frame.

Nicely voluntarily appeared in court on April 15, 2015, when the grand jury indicted him. Over the next few months, parties filed motions and the court held hearings. The court set the trial for the charges on Oct. 5 and 6. However, the commonwealth filed a motion on Sept. 15 to continue the trial as a result of the unavailability of the medical examiner and an investigator. The court granted the motion, over the objection of the defendant, and set the case for a four-day trial beginning Feb. 16.

Wiseley won re-election to the commonwealth’s attorney’s office Nov. 3 in a contested race against Chad Logan, an assistant prosecutor for Rockingham County.

The court later granted a defense motion to move the trial to May with the understanding that the defendant was not waiving his right to a speedy trial with respect to the February date.

“The Court had offered the defendant this continuance because of controversy concerning the completeness and timeliness of the Commonwealth’s discovery responses,” Hupp states.

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com

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