Shianna Frey



Claimant appeared in person and by counsel, David P. Greenberg, Attorney at Law.

Jennifer Stollings, Assistant Attorney General, for the State of West Virginia.

An application of the claimant, Shianna Frey, for an award under the West Virginia Crime Victims Compensation Act, was filed September 7, 2001. The report of the Claim Investigator, filed March 28, 2002, recommended that no award be granted, to which the claimant filed a response in disagreement. An Order was issued on June 24, 2002, upholding the Investigator's recommendation and denying the claim, in response to which the claimant's request for hearing was filed July 8, 2002. This matter came on for hearing July 8, 2003, claimant appearing in person and by counsel, David P. Greenberg, Attorney at Law, and the State of West Virginia by counsel, Jennifer Stollings, Assistant Attorney General.
On July 2, 2001, the body of claimant's 25-year-old daughter, Amy Frey, was discovered on a narrow gravel lane near Hedgesville, Berkeley County. It was determined that she had been the victim of homicide three days prior. She was stabbed to death by the offender, Harry Deneen, who was indicted for first-degree murder.
The basis for the initial denial of the claim was the victim's contributory misconduct. The Claim Investigator determined from the police report that the victim had been participating in illegal drug use, and that these actions contributed to her death.
Testifying at the hearing on behalf of the claimant was Berkeley County Prosecutor Pamela Games-Neely, who prosecuted the defendant Harry Deneen for the murder of Amy Frey and for an unrelated kidnapping and sexual assault charge. (Transcript, pages 8-9.) Ms.Games- Neely testified that the defendant Harry Deneen pleaded guilty to second-degree murder in the case of Amy Frey. (Transcript, page 9.) While there was evidence of sexual assault, it was insufficient to convict the defendant of that crime. (Transcript, page 9.) The defendant made numerous inconsistent statements regarding whether he sexually assaulted Amy Frey and whether Amy Frey was using illegal drugs on the night of this crime. At one point, he stated to the prosecution that he and his uncle Roy Murray both had consensual sex with the victim. (Transcript, page 9.) However, Harry Deneen contradicted this original statement when he made his final proffer to the Court, in which he stated that he had consensual sexual intercourse with the victim, but his uncle Roy Murray tried to get the victim to have sex with him and she refused. According to the defendant, when she refused, Roy Murray began hitting her and attempted to sexually assault her. (Transcript, page 10.) The defendant testified that it was at this point during the struggle that he stabbed Amy Frey to death. (Transcript, Page 10.) Ms. Games-Neely testified that there was absolutely no evidence that Amy Frey was using drugs on the night of this crime other than the inconsistent statements made by Harry Deneen. (Transcript, page 11.) Deneen first informed the prosecutor's office that he purchased crack cocaine specifically for the purpose of partying with Amy Frey. On another occasion, he told the prosecutor that he used drugs with Amy Frey, only to turn around and later deny that any drugs were used. (Transcript, page 11.) According to Ms. Games-Neely, Mr. Deneen made at least two or three inconsistent statements regarding drug use.
West Virginia State Trooper First Class Dean Olack also testified at the hearing of this matter. Trooper Olack is stationed at Martinsburg, in Jefferson County, and at the time of this crime he was the district investigator in charge of the investigation of this brutal murder. (Transcript, page 19.) Trooper Olack testified that Harry Deneen also made numerous conflicting statements to him regarding whether or not Amy Frey was using drugs. (Transcript, page 20.) In his first statement, Harry Deneen denied having anything to do with Amy Frey. Trooper Olack testified that there is no evidence indicating that Amy Frey used drugs on the night of this incident other than Harry Deneen's second statement to him. (Transcript, page 20.) According to Trooper Olack, in his second statement, Harry Deneen stated that he was in a bar with Amy Frey where they had several drinks. (Transcript, page 20.) He stated that they left the bar together and went to Hagerstown, Maryland to buy some narcotics. (Transcript, page 20.) He stated that both he and the victim voluntarily used drugs and had consensual sexual intercourse. (Transcript, page 21.) Then, he alleged that he dropped her off in Hagerstown. However, in his final proffer, he stated that he met Amy Frey in a bar in Hagerstown. He had intentions of taking her to Roy Murray's house so that he and Roy Murray could engage in sexual intercourse with her. (Transcript, page 20.) Trooper Olack also stated that it was his impression from interviewing Harry Deneen that he was prepared to do whatever it took to get the girl to partake in sexual intercourse with him and his uncle, Roy Murray. (Transcript, page 22.) Furthermore, Harry Deneen stated to Trooper Olack that Roy Murray stabbed Amy Frey. (Transcript, page 22.) Again, Harry Deneen made no statement about Amy Frey using drugs.
W.Va. Code §14-2A-3(1) defines "Contributory misconduct"as: "any conduct of the claimant, or of the victim through whom the claimant claims an award, that is unlawful or intentionally tortious and that, without regard to the conduct's proximity in time or space to the criminally injurious conduct has causal relationship to the criminally injurious conduct that is the basis of the claim and shall also include the voluntary intoxication of the claimant, either by the consumption of alcohol or the use of any controlled substance when the intoxication has a causal connection or relationship to the injury sustained."
In this claim, the issue is whether or not the victim, Amy Frey, was involved in the use of illegal drugs at the time she was brutally murdered. In a claim under the Crime Victims Compensation Act, a claimant has the burden of proof in establishing that the victim through whom the claimant seeks an award is an "innocent victim of crime." Once the claimant has established that the victim is an innocent victim under the statute, then the burden of proof shifts back to the respondent to prove by a preponderance of the evidence that the victim through whom the claimant seeks an award was not an innocent victim of crime. The evidence adduced at the hearing of this matter established that the victim, Amy Frey, was an "innocent victim of crime". Amy Frey was brutally stabbed to death by Harry Deneen, who later pleaded guilty to her murder. The only evidence that the victim was using illegal drugs at the time of her death came during the investigation of this crime when Harry Deneen made numerous inconsistent statements to the State Police and the Jefferson County Prosecutor's Office that Amy Frey had used illegal drugs with him. However, in addition to changing his testimony, Harry Deneen did not mention drug use at all in his last statement before he was sentenced. It appears that early in the investigation, Harry Deneen only stated that Amy Frey was using drugs in an attempt to hide his own guilt. Given the lack of any credible evidence whatsoever that the victim was using drugs at the time of her murder, the Court finds that Amy Frey was an innocent victim of crime. The respondent failed adequately to rebut the claimant's evidence and did not establish that the victim used any illegal drugs which had any causal connection or relationship to this brutal crime.
In view of the foregoing, the Court is of the opinion to and does hereby make an award in this claim in the amount of $4,000.00 as documented in the Claim Investigator's memorandum dated July 14, 2003, and attached hereto.