A charge of second-degree murder against a Martinsville man was dismissed in Franklin County General District Court on Wednesday, but he likely will face the charge again.
Franklin County Judge George A. Jones Jr. ruled after a preliminary hearing that prosecutors had not provided sufficient evidence to move the case against Derry Dee Finney, 35 of Martinsville along to trial. A grand jury still could hear the charges.
James Kirby, 68, of Rocky Mount was found dead in his home around 10 p.m. on Nov. 29.
Six days later, officers arrested Finney and charged him with the murder of Kirby and unauthorized use of a vehicle.
Strangulation was determined to be the cause of death.
“Our officers and investigators have worked with other agencies to collect evidence, analyze data and determine whether an arrest was warranted,” Rocky Mount Police Chief K.E. Criner said at the time. “Careful analysis of the Medical Examiner’s preliminary findings corroborated with the evidence, and after questioning a person of interest, our investigators have placed charges and arrested a suspect.”
Finney’s attorney, William Edward “Ed” Cooley, said that evidence was all circumstantial.
“The commonwealth’s evidence was not enough—that’s the short answer,” Cooley said. “Apparently Finney and Kirby were supposedly friends and Finney was at Kirby’s house that day.
“The security alarm [at Kirby’s house] went off at 10 that night, and it showed Finney leaving around the same time.”
Cooley said Finney took Kirby’s vehicle back to Martinsville.
Although an autopsy proved Kirby had been strangled to death, Cooley said there was no forensic evidence, “no blood—nothing to show—who caused the death. It was circumstantial.”
Cooley said another man, who he identified as an ex-boyfriend of Kirby’s, offered to police that he wasn’t the one who killed Kirby.
“He said, ‘I didn’t kill him’—sounds like he was protesting too much—who would say that?” Cooley said. “I found that a little odd.”
Police said they traced Kirby’s car to Finney’s residence in Martinsville the day after Kirby was found dead.
Cooley said Finney told police he wasn’t at Kirby’s house the day Kirby died, but a security camera proved he was.
When Finney was asked if he had permission to take Kirby’s vehicle, Cooley said he told the police he did not, but there was no evidence to prove the admission was truthful.
“My job isn’t to prove he [Finney] didn’t do it, and they [prosecution] didn’t prove he did,” Cooley said.
Cooley said he thought it was likely Finney would be re-indicted for the murder next month.
“Jeopardy doesn’t attach because this was a probable cause hearing,” Cooley said. “I doubt they’ll prove him guilty in circuit court either—there is no evidence to hold up the charge.”
If the murder charge were to be re-introduced, it will be by direct indictment, a legal procedure in which the commonwealth presents a case directly to a grand jury that may hear from a limited number of witnesses.
The remaining unauthorized use of a motor vehicle charge was certified to a grand jury that is scheduled to meet on Dec. 7.
Bill Wyatt is a reporter for the Martinsville Bulletin. He can be reached at 276-638-8801, Ext. 236. Follow him @billdwyatt.