          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2016 Term
                                  _______________

                                    No. 15-0028                          FILED
                                  _______________                     March 2, 2016
                                                                         released at 3:00 p.m.
                                                                       RORY L. PERRY II, CLERK
                               DAYTON SCOTT LISTER,                  SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA
                                    Petitioner

                                         v.

                          DAVID BALLARD, Warden,

                        Mount Olive Correctional Complex,

                                   Respondent


      ____________________________________________________________

                   Appeal from the Circuit Court of Marion County

                       The Honorable Michael J. Aloi, Judge

                                 Case No. 14-C-154


                                    AFFIRMED


      ____________________________________________________________

                           Submitted: February 23, 2016

                              Filed: March 2, 2016


Lonnie C. Simmons, Esq.                       Patrick Morrisey
DiTrapano, Barrett, DiPiero,                  Attorney General
McGinley & Simmons, PLLC                      David A. Stackpole
Charleston, West Virginia                     Assistant Attorney General
Counsel for the Petitioner                    Charleston, West Virginia
                                              Counsel for the Respondent



CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “‘A motion for a new trial on the ground of the misconduct of a jury

is addressed to the sound discretion of the court, which as a rule will not be disturbed on

appeal where it appears that defendant was not injured by the misconduct or influence

complained of. The question as to whether or not a juror has been subjected to improper

influence affecting the verdict, is a fact primarily to be determined by the trial judge from

the circumstances, which must be clear and convincing to require a new trial, proof of

mere opportunity to influence the jury being insufficient.’ Syllabus Point 7, State v.

Johnson, 111 W.Va. 653, 164 S.E. 31 (1932).” Syllabus Point 1, State v. Sutphin, 195

W.Va. 551, 466 S.E.2d 402 (1995).



              2.     “In any case where there are allegations of any private

communication, contact, or tampering, directly or indirectly, with a juror during a trial

about a matter pending before the jury not made in pursuance of known rules of the court

and the instructions and directions of the court made during the trial with full knowledge

of the parties; it is the duty of the trial judge upon learning of the alleged communication,

contact, or tampering, to conduct a hearing as soon as is practicable, with all parties

present; a record made in order to fully consider any evidence of influence or prejudice;

and thereafter to make findings and conclusions as to whether such communication,

contact, or tampering was prejudicial to the defendant to the extent that he has not



                                              i
received a fair trial.” Syllabus Point 2, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402

(1995).



             3.     “An instruction outlining factors which a jury should consider in

determining whether to grant mercy in a first degree murder case should not be given.”

Syllabus Point 1, State v. Miller, 178 W.Va. 618, 363 S.E.2d 504 (1987).




                                           ii
Chief Justice Ketchum:

              Petitioner Dayton Scott Lister (“Mr. Lister”) appeals from the December

23, 2014, order of the Circuit Court of Marion County denying his petition for a writ of

habeas corpus. Mr. Lister, who was convicted of first-degree murder, asserts that he is

entitled to a writ of habeas corpus due to three errors committed by the trial court. He

argues that the trial court erred by 1) refusing to dismiss a juror who overheard a

threatening remark related to her role as a juror during the trial, (2) allowing the State to

present “sympathy witnesses” during the mercy phase of the bifurcated trial, and (3)

failing to provide standards for the jury to consider when determining whether to

recommend mercy. After review, we affirm the circuit court’s order.



                                             I.


                 FACTUAL AND PROCEDURAL BACKGROUND


              The facts of the underlying crime are not disputed. On August 10, 2005,

Mr. Lister had been drinking alcohol and taking Xanax. He initiated an argument with a

group of five strangers, three black men and two white women, who were gathered in

front of an apartment building in Marion County, West Virginia. Mr. Lister yelled racial

epithets at this group of strangers as he drove by in a sedan. After driving around the

block, Mr. Lister returned to the apartment building, parked his car, approached the




                                             1

group, and began arguing with one of the men. At the conclusion of the verbal argument,

Mr. Lister walked back to his car and retrieved a .22 caliber rifle.1 He proceeded to

threaten the group of men and women, and struck one of the men with the barrel of his

rifle. Mr. Lister then pointed the rifle at one of the women, who pled with him and

promised to leave the company of the young men. Mr. Lister walked back to his car and

left the scene. Five to ten minutes later, Mr. Lister returned to the apartment building in a

pick-up truck, armed with a loaded, twelve-gauge shotgun. Mr. Lister fired at the group

from the window of his truck, striking one of the women, eighteen-year-old Krystal

Peterson, in the back of the head, instantly killing her. Mr. Lister fled the scene but was

apprehended by the police later that morning. During subsequent questioning by the

police, Mr. Lister admitted that he had fired the shot that killed Ms. Peterson.

              Mr. Lister was indicted for murder in the first degree pursuant to W.Va.

Code § 61-2-1 [1991]. Prior to his trial, the State filed a motion to bifurcate the trial,

which Mr. Lister opposed. The circuit court granted the State’s motion to bifurcate. Mr.

Lister’s trial began on April 25, 2006. Throughout the course of the trial, Mr. Lister did

not contest that he fired the shot that killed Ms. Peterson. Rather, he put on a diminished

capacity defense, arguing that because he was drinking and taking Xanax, he did not have

the requisite mental state to commit first-degree murder.


       1
         The .22 caliber rifle was not loaded. The men and women at the apartment
building were not aware that the rifle was unloaded.



                                             2

              Three juror issues arose during the trial.2 The juror issue that Mr. Lister

raises as an assignment of error in the present appeal occurred on April 28, 2006, the final

day of the trial. On that day, Juror Number Three told the bailiff about a remark she

overheard at a Dairy Mart the previous night. The bailiff informed the trial judge that

Juror Three wanted to disclose something on the record. The circuit court questioned

Juror Three on the record:

                       Juror Three: After I left here yesterday, I stopped at
              the Dairy Mart, and my son and I were—my son was in the
              car. . . . I was in line, and there were a lot of people that were
              lined up behind me. I had my hands full. Behind me, I heard
              someone say, “There’s one of those bitch jurors.” It was a
              male voice. I did not turn around. I did not look. I did not
              want them to know I heard what they said. I paid for my stuff
              quickly, and as I was paying, I heard him say, “If we take a
              few of these out, Scoot will go free.” [“Scoot” is Mr. Lister’s
              nickname.] I did not turn around. I was afraid for my son. I
              didn’t want them—I didn’t want to acknowledge that I heard




       2
         The first juror issue occurred on April 27, 2006, when a juror informed the court
that he was an acquaintance of a defense witness who had recently testified. The juror
did not recognize the witness’s name when called during voir dire because he only knew
this witness by the witness’s nickname, “Bumper.” After questioning this juror, the State
moved to disqualify him. Counsel for Mr. Lister opposed disqualification, stating there
was no proper basis for the motion. The circuit court granted the State’s motion and
disqualified this juror.

       On the same day, another juror reported to the bailiff that Juror Number Six had
shared opinions about the case with the other jurors. After being questioned by the court,
Juror Six admitted that she had expressed opinions about the case and stated, “I said I
don’t believe that it would be first degree murder.” The circuit court subsequently
dismissed Juror Six.



                                              3

              them. I took off and left. I got in my car and I left. That’s
              all.

                     The Court: Okay, let me ask you this. Do you feel
              that you can continue to sit on this jury and render a fair and
              impartial verdict?

                     Juror Three: Oh, absolutely.

                     The Court: Do you think that would affect your
              deliberations in any manner whatsoever?

                     Juror Three: No. No, not at all.

              The circuit court allowed the State and Mr. Lister to question Juror Three

about this incident. Counsel for Mr. Lister asked Juror Three if she had any bias against

Mr. Lister because of this incident. Juror Three replied: “No. I don’t feel that way at all.

I mean, people were—it could have been anybody. I don’t know who it was. . . . It was

just a comment that could have been made by anybody.” Mr. Lister moved to disqualify

Juror Three. The circuit court denied this motion, explaining:

              [M]y reason basically is: 1) This woman [Juror Three] was
              very, very sincere when she said it would not affect her at all.
              Secondly, I don’t want to establish a precedent whereby
              defendants or parties in cases can get jurors disqualified by
              yelling or screaming at them in public. She says that is not
              going to affect her.

              The jury found Mr. Lister guilty of murder in the first degree at the close of

the guilt phase of the trial. During the subsequent mercy phase, Mr. Lister objected to the

State calling the victim’s family members to testify about the victim. The circuit court

noted the objection and limited the State’s evidence to “four short witnesses.” The State

called the victim’s stepmother, “best friend,” father, and mother. The testimony from all

                                             4

four of these witnesses was very brief. In essence, each witness was asked two questions:

1) how did you know the victim; and 2) what impact has her death had on your life. At

the close of the penalty phase, the jury recommended no mercy. Thereafter, the circuit

court imposed a sentence of life without the possibility of parole.

              Mr. Lister filed a motion for a new trial on May 8, 2006, asserting that the

circuit court erred by failing to dismiss Juror Three, and by bifurcating the trial. On

August 24, 2006, the circuit court entered an order denying the motion for a new trial.

Mr. Lister filed a petition for appeal with this Court which was denied by order dated

June 5, 2007.3 Next, Mr. Lister filed a petition for writ of certiorari with the United

States Supreme Court. The Supreme Court denied certiorari on October 29, 2007. Mr.

Lister filed a petition for writ of habeas corpus in the Circuit Court of Marion County on

May 20, 2014. The circuit court held an omnibus hearing on September 19, 2014. The

circuit court denied the writ of habeas corpus by order entered on December 23, 2014.

This appeal followed.




       3
          Mr. Lister’s petition for appeal to this Court argued that the circuit court erred by
1) refusing to declare a mistrial after learning of Juror Three’s incident at the Dairy Mart;
2) refusing to question the other jurors about the effect, if any, Juror Three’s remarks
about the incident had on their deliberations; 3) granting the State’s motion to bifurcate
the trial; and 4) allowing the State to put on testimony about the victim during the mercy
phase of the trial. Additionally, Mr. Lister raised two issues regarding jury instructions.



                                              5

                                                II.


                               STANDARD OF REVIEW


              This Court reviews appeals of circuit court orders denying habeas corpus

relief under the following standard:

                     “In reviewing challenges to the findings and
              conclusions of the circuit court in a habeas corpus action, we
              apply a three-prong standard of review. We review the final
              order and the ultimate disposition under an abuse of
              discretion standard; the underlying factual findings under a
              clearly erroneous standard; and questions of law are subject to
              a de novo review.” Syllabus point 1, Mathena v. Haines, 219
              W.Va. 417, 633 S.E.2d 771 (2006).

Syllabus Point 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97

(2009). With these principles in mind, we consider the arguments of the parties.



                                            III.


                                        ANALYSIS


              On appeal, Mr. Lister argues that the trial court erred by 1) refusing to

dismiss Juror Three based on the Dairy Mart incident, (2) allowing the State to present

“sympathy witnesses” during the mercy phase of the trial, and (3) failing to provide

standards for the jury to consider when determining whether to recommend mercy. We

address each of these alleged errors in turn.




                                                6

                                       A. Juror Issue

              The first issue is whether the circuit court erred by failing to excuse Juror

Three based on the Dairy Mart incident. Mr. Lister contends that the failure to dismiss

Juror Three denied him his constitutional right to a trial by an impartial jury. By contrast,

the State argues that after holding a hearing on the Dairy Mart incident, the circuit court

correctly found that Mr. Lister did not prove that this incident necessitated the removal of

Juror Three. Our review of this issue is for an abuse of discretion:

                     “A motion for a new trial on the ground of the
              misconduct of a jury is addressed to the sound discretion of
              the court, which as a rule will not be disturbed on appeal
              where it appears that defendant was not injured by the
              misconduct or influence complained of. The question as to
              whether or not a juror has been subjected to improper
              influence affecting the verdict, is a fact primarily to be
              determined by the trial judge from the circumstances,
              which must be clear and convincing to require a new trial,
              proof of mere opportunity to influence the jury being
              insufficient.” Syllabus Point 7, State v. Johnson, 111 W.Va.
              653, 164 S.E. 31 (1932).

Syllabus Point 1, State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (1995) (emphasis

added). Once it is alleged that a juror has been improperly contacted or tampered with,

the trial court is required to hold a hearing to consider the claim:

                      In any case where there are allegations of any private
              communication, contact, or tampering, directly or indirectly,
              with a juror during a trial about a matter pending before the
              jury not made in pursuance of known rules of the court and
              the instructions and directions of the court made during the
              trial with full knowledge of the parties; it is the duty of the
              trial judge upon learning of the alleged communication,
              contact, or tampering, to conduct a hearing as soon as is
              practicable, with all parties present; a record made in order to

                                              7
              fully consider any evidence of influence or prejudice; and
              thereafter to make findings and conclusions as to whether
              such communication, contact, or tampering was prejudicial to
              the defendant to the extent that he has not received a fair trial.

Syllabus Point 2, Sutphin, supra. Similarly, the United States Supreme Court held that

when there has been alleged improper contact with a juror, the trial court “should

determine the circumstances, the impact thereof upon the juror, and whether or not it was

prejudicial, in a hearing with all interested parties permitted to participate.” Remmer v.

United States, 347 U.S. 227, 230, 74 S.Ct. 450, 451 (1954). “[T]he remedy for allegations

of juror partiality is a hearing in which the defendant has the opportunity to prove actual

bias.” Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945 (1982).

              In the present case, the circuit court held a Remmer hearing after the Dairy

Mart incident was reported by Juror Three. During this hearing, Juror Three stated that

she did not know the identity of the person making the comment at the Dairy Mart,

stating, “It could have been anybody.” As such, there was no argument by either side

that the person who made the comment at the Dairy Mart was an “interested party” in the

case. In Syllabus Point 3 of Sutphin,4 this Court explained:




       4
         Mr. Lister argues that this Court should depart from the standard announced in
Syllabus Point 3 of Sutphin, and should instead adopt a presumption of prejudice standard
that must be overcome by the State upon “any private communication, contact, or
tampering, directly or indirectly, with a juror during a trial about the matter pending
before the jury.” This argument was addressed and explicitly rejected by this Court in
State v. Trail, 236 W.Va. 167, n. 13, 778 S.E.2d 616, 627, n. 13 (2015).



                                              8

                       In the absence of any evidence that an interested party
                induced juror misconduct, no jury verdict will be reversed on
                the ground of juror misconduct unless the defendant proves
                by clear and convincing evidence that the misconduct has
                prejudiced the defendant to the extent that the defendant has
                not received a fair trial.

Further, this Court recently stated that “the mere allegation of juror misconduct is

insufficient to warrant a new trial. . . . [There] must be proof that some improper event

has occurred. Misconduct on the part of the jury as grounds for a new trial is not

presumed but must be fully proved by the moving party.” State v. Trail, 236 W.Va. at

___, 778 S.E.2d at 624 (citation and internal quotation marks omitted).5 See generally 58

Am. Jr.2d New Trial § 216, at 255 (2012) (“[I]n both civil and criminal cases, a new trial

generally will not be granted because of a conversation between a juror and a stranger


       5
           Similarly, the Supreme Court has stated:

                [D]ue process does not require a new trial every time a juror
                has been placed in a potentially compromising situation.
                Were that the rule, few trials would be constitutionally
                acceptable. The safeguards of juror impartiality, such as voir
                dire and protective instructions from the trial judge, are not
                infallible; it is virtually impossible to shield jurors from every
                contact or influence that might theoretically affect their vote.
                Due process means a jury capable and willing to decide the
                case solely on the evidence before it, and a trial judge ever
                watchful to prevent prejudicial occurrences and to determine
                the effect of such occurrences when they happen. Such
                determinations may properly be made at a hearing like that
                ordered in Remmer and held in this case.

Smith v. Phillips, supra, 455 U.S. at 217, 102 S.Ct. at 946.



                                                9

when it does not appear that such conversation was prompted by a party or that any

injustice or prejudice resulted to the complaining party. A new trial will be granted only

where a conversation between a third person and a juror is of such a character as is

calculated to impress the case upon the mind of the juror in a different aspect than was

presented by the evidence in the courtroom or is of such a nature as is calculated to result

in harm to a party on trial.” (footnote omitted)).

              In the present case, the circuit court conducted a Remmer hearing and

questioned Juror Three about the Dairy Mart incident. Further, the circuit court allowed

both the State and Mr. Lister to question Juror Three about the Dairy Mart incident.

“Credibility determinations are properly made by the trier of fact . . . who has had the

opportunity to observe, first hand, the demeanor of the witness.” Miller v. Chenoweth,

229 W.Va. 114, 121, 727 S.E.2d 658, 665 (2012) (per curiam). Similarly, Syllabus Point

1 of Sutphin states, in part, “The question as to whether or not a juror has been subjected

to improper influence affecting the verdict, is a fact primarily to be determined by the

trial judge from the circumstances.” We find that the circuit court was able to observe

Juror Three’s testimony and demeanor during the Remmer hearing.             Based on this

observation, the circuit court concluded that Juror Three was “very, very sincere when

she said it [the Dairy Mart incident] would not affect her at all.” The circuit court was in

the best position to make this credibility assessment, and we find no reason to depart




                                             10

from its conclusion that Juror Three could render an impartial verdict. We therefore find

no abuse of discretion.6



                           B. Testimony During Mercy Phase

              The second assignment of error raised by Mr. Lister is that the circuit court

erred by allowing the State to present “sympathy witnesses” during the mercy phase of

the trial. Mr. Lister contends that the testimony about the victim was non-probative and

unfairly prejudicial under Rules 401 and 403 of the West Virginia Rules of Evidence.7




       6
        Mr. Lister also alleged that he was prejudiced because Juror Three told other
members of the jury about the Dairy Mart incident. In Bluestone Industries, Inc. v.
Keneda, 232 W.Va. 139, 144, 751 S.E.2d 25, 30 (2013), this Court stated:

              The standard for granting a new trial based on juror
              misconduct is not met by a showing of mere opportunity to
              influence a jury. In Syllabus Point 7 of State v. Johnson, [111
              W.Va. 653, 164 S.E. 31 (1932)] this Court stated that the
              circumstances “must be clear and convincing to require a new
              trial; proof of mere opportunity to influence the jury being
              insufficient.”

(Emphasis added). In the present case, Mr. Lister argues that Juror Three’s discussion
with some members of the jury about the Dairy Mart incident could have influenced the
jury. This proof of mere opportunity to influence the jury is insufficient to grant Mr.
Lister a new trial under this Court’s ruling in Bluestone Industries, Inc.
       7
          Rule 401 of the West Virginia Rules of Evidence states, “Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action.” Rule 403 of the
West Virginia Rules of Evidence states, “The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following:
                                                                          (continued . . .)

                                            11

Conversely, the State asserts that the circuit court was permitted to allow members of the

victim’s family to testify pursuant to a circuit court’s “wide discretion” in the sources and

types of evidence used during the mercy phase of a trial. The State also argues that the

family members could testify pursuant to W.Va. Code § 61-11A-2 [2012], which permits

a family member of a victim of first-degree murder to make an oral statement to the court

“prior to sentencing.”

              After review, we agree with the State and conclude that the circuit court did

not abuse its discretion by permitting testimony from the victim’s family members during

the mercy phase of the trial. Our conclusion is based on 1) the wide discretion a circuit

court is afforded in determining the type of evidence that may be admitted during the

mercy phase of a trial, 2) W.Va. Code § 61-11A-2, and 3) the United States Supreme

Court’s ruling in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597 (1991).

              As an initial matter, we note that “[a] trial court has discretionary authority

to bifurcate a trial and sentencing in any case where a jury is required to make a finding

as to mercy.” Syllabus Point 4, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).

This Court has addressed the purpose behind the mercy phase of a bifurcated trial,

stating, “the issue during the mercy phase of a bifurcated trial is whether or not the

defendant, who already has been found guilty of murder in the first degree, should be



unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”



                                             12
afforded mercy, i.e., afforded the opportunity to be considered for parole after serving no

less than fifteen years of his or her life sentence.” State v. Trail, 236 W.Va. at __, 778

S.E.2d at 630.     Similarly, Justice Workman discussed the rationale for a bifurcated

proceeding in her dissenting opinion in Schofield v. West Virginia Department of

Corrections, 185 W.Va. 199, 207, 406 S.E.2d 425, 433 (1991), stating, “The

determination of whether a defendant should receive mercy is so crucially important that

justice for both the state and defendant would be best served by a full presentation of all

relevant circumstances without regard to strategy during trial on the merits.” (Emphasis

added).

              In State ex rel. Dunlap v. McBride, 225 W.Va. 192, 202, 691 S.E.2d 183,

193 (2010), this Court stated, “‘[a] trial court has wide discretion in the sources and types

of evidence used in determining the kind and extent of punishment to be imposed. And a

sentencing court is not restricted by the federal constitution to the information received in

open court.’ Elswick v. Holland, 623 F.Supp. 498, 504 (S.D.W.Va.1985) (citations

omitted).” This Court also discussed the “wide discretion” afforded to trial courts during

the mercy phase of a bifurcated trial in Syllabus point 7 of State v. McLaughlin, 226

W.Va. 229, 700 S.E.2d 289 (2010), stating:

                    The type of evidence that is admissible in the mercy
              phase of a bifurcated first degree murder proceeding is much
              broader than the evidence admissible for purposes of
              determining a defendant’s guilt or innocence. Admissible
              evidence necessarily encompasses evidence of the
              defendant’s character, including evidence concerning the
              defendant’s past, present and future, as well as evidence
              surrounding the nature of the crime committed by the

                                             13
              defendant that warranted a jury finding the defendant guilty
              of first degree murder, so long as that evidence is found by
              the trial court to be relevant under Rule 401 of the West
              Virginia Rules of Evidence and not unduly prejudicial
              pursuant to Rule 403 of the West Virginia Rules of Evidence.

              Additionally, in State v. Trail, the Court stated that “the mercy phase of a

bifurcated trial is a sentencing proceeding. Rule 1101(b) of the West Virginia Rules of

Evidence expressly states that, unless otherwise provided by rule of this Court, the Rules

of Evidence do not apply to sentencing proceedings.” Id. at ___, n. 17, 778 S.E.2d at 630,

n. 17. Therefore, the Court reasoned that “the Rules of Evidence apply to the mercy

phase of a bifurcated trial only as provided by this Court. Based upon this Court’s

holding in Syllabus point 7 of State v. McLaughlin, . . . along with the application of Rule

1101(b), it is clear that only Rules 401 and 403 apply to evidentiary rulings made during

the mercy phase of a bifurcated trial.” Id.

              A circuit court also enjoys wide discretion when considering evidence

pursuant to Rule 403 of the West Virginia Rules of Evidence. As this Court held in

Syllabus Point 10 of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), in part, “As to

the balancing under Rule 403, the trial court enjoys broad discretion. The Rule 403

balancing test is essentially a matter of trial conduct, and the trial court’s discretion will

not be overturned absent a showing of clear abuse.”

              Based on all of the following, it is clear that a circuit court has wide

discretion in the sources and types of evidence used during the mercy phase of a trial.




                                              14

We conclude that the circuit court was within this “wide discretion” in permitting the

State to elicit brief testimony about the victim during the mercy phase of the trial.8

               The State also contends that the circuit court’s ruling allowing family

members of the victim to testify during the mercy phase of the trial was proper under

W.Va. Code § 61-11A-2(b).        It states, in relevant part, “Prior to the imposition of

sentence upon a defendant who has been found guilty of a felony . . . the court shall

permit the victim9 of the crime to appear before the court to make an oral statement for



       8
          Mr. Lister argues that a circuit court does not have wide discretion in
determining the type of evidence that is admissible during the mercy phase of a trial. His
argument relies mainly on a footnote in State v. Rygh, 206 W.Va. 295, n. 1, 524 S.E.2d
447, n. 1 (1999), which stated, “We observe that there is nothing in LaRock that creates,
merely by bifurcating a murder trial, a qualitative change in or a substantive expansion of
the scope or type of evidence that the prosecution may put on against a defendant—as
compared to that evidence that would be admissible in a unitary trial.” In subsequent
cases decided after Rygh, including McLaughlin, Dunlap, and Trail, this Court has
repeatedly stated that a circuit court has wide discretion in determining the type of
evidence that is admissible during the mercy phase of a trial. As this Court made clear in
State v. Trail, “the relevant issues are broader” during the mercy phase of a trial and a
circuit court therefore enjoys wide discretion in the type of evidence that is admissible.
Id. at ___, 778 S.E.2d at 629.
       9
        The term “victim” includes a member of the deceased victim’s immediate
family. W.Va. Code § 61-11A-2(a) states,

                     For the purposes of this section, “victim” means a
              person who is a victim of a felony, or, where a death occurs
              during the commission of a felony or a misdemeanor, the
              following persons shall be notified if known by the
              prosecutor: A member of the deceased victim’s immediate
              family, the fiduciary of the deceased victim’s estate or an
              adult household member residing with the victim.

                                                                             (continued . . .)

                                             15

the record[.]” This statute is contained in the Victim Protection Act of 1984, W.Va. Code

§§ 61–11A–1 to 8 [1984]. West Virginia Code § 61–11A–1 of the Victim Protection Act

provides an extensive statement of the Legislature’s intention “to enhance and protect the

necessary role of crime victims . . . in the criminal justice process and to ensure that the

state and local governments do all that is possible within the limits of available resources

to assist victims . . . of crime[.]” With this clear legislative intention in mind, we find the

purpose of W.Va. Code § 61-11A-2(b) is plain—to allow a victim or a victim’s family

member to make an oral statement to the court prior to sentencing. Based on the plain

language of W.Va. Code § 61-11A-2(b), we find the trial court did not abuse its



        Further, under W.Va. Code 61-11A-2(c), the following people are to be notified of
their right to make an oral statement prior to sentencing: “the person who was the victim
of the crime, the parent or guardian of a minor who was the victim of a crime, the
fiduciary of the victim’s estate if the victim is deceased and the immediate family
members of the victim if the victim is deceased.” The statute does not state how many
family members may make a statement “prior to sentencing.” In the present case, the
circuit court allowed the State to call four witnesses to offer brief testimony. Courts in
other jurisdictions have determined that victim impact evidence is not limited to one
witness. For instance, in Loveless v. State, 642 N.E.2d 974 (Ind. 1994), the court found
that, while it may be best for purposes of judicial economy and objectivity to use one
witness to communicate the impact of a crime, Ind. Code § 35-38-1.7.1(a)(6) (Supp.
1992) does not require it. The court explained that the purpose of the statute is to
guarantee that the interests of the victim are fully represented at a sentencing hearing and
that, in a murder case, this might be better served by several witnesses, rather than just
one. Similarly, in Rippo v. State, 113 Nev. 1239, 946 P.2d 1017 (1997), reh’g denied,
(Feb. 9, 1998) and cert. denied, 525 U.S. 841, 119 S. Ct. 104 (1998), the court concluded
that the trial court did not abuse its discretion in allowing five witnesses to testify as to
the character of the two victims and the impact the victims’ deaths had on the witnesses’
lives and the lives of their families, where each testimonial was individual in nature, and
the admission of the testimony was neither cumulative nor excessive.



                                              16

discretion by permitting the victim’s family members to give brief testimony prior to

sentencing.10

                Finally, we note that the Supreme Court has held that the impact of a

victim’s death on the victim’s family is admissible for jury consideration during the

sentencing phase of a capital murder trial. In Payne v. Tennessee, supra, the Supreme

Court stated that “the assessment of harm caused by the defendant as a result of the crime

charged has understandably been an important concern of the criminal law, both in

determining the elements of the offense and in determining the appropriate punishment.”

501 U.S. at 819, 111 S.Ct. at 2605. Since harm to the victim may be used in evaluating

the seriousness of a crime, the Court found that victim impact statements regarding harm

to the victim should be allowed, because such information is relevant in determining an


       10
          In addition to the three family members who testified at the mercy phase, the
victim’s “best friend” was also permitted to testify. Under W.Va. Code 61-11A-2(c), a
victim’s “best friend” is not expressly entitled to make an oral statement to the court prior
to sentencing. To the extent that it was error for the trial court to permit the victim’s best
friend to offer brief testimony during the mercy phase, we find this error was harmless.
“‘A judgment will not be reversed because of the admission of improper or irrelevant
evidence when it is clear that the verdict of the jury could not have been affected
thereby.’ Syllabus Point 7, Starcher v. South Penn Oil Co., 81 W.Va. 587, 95 S.E. 28
(1918).” Syllabus Point 7, Torrence v. Kusminsky, 185 W.Va. 734, 408 S.E.2d 684
(1991). Moreover, “error is prejudicial and ground for reversal only when it affects the
final outcome and works adversely to a substantial right of the party assigning it.” Reed
v. Wimmer, 195 W.Va. 199, 209, 465 S.E.2d 199, 209 (1995). In light of the
overwhelming evidence establishing Mr. Lister’s guilt, as well as the testimony of the
victim’s family members during the mercy phase of the trial, we believe the jury would
have reached the same recommendation without the brief testimony of the victim’s best
friend.



                                             17

appropriate penalty. Id. While Payne dealt with the sentencing phase of a capital murder

trial, we find its reasoning to be applicable to the mercy phase of a bifurcated trial.11

               Based on all of the following, we find the circuit court did not abuse its

discretion by allowing brief testimony about the victim during the mercy phase of the

trial.


         11
          The Court in Payne recognized that the prosecution has a legitimate interest in
using victim impact evidence to show each “victim’s uniqueness as an individual human
being.” Id., 501 U.S. at 823, 111 S.Ct. at 2607. The Payne Court stated:

              We are now of the view that a State may properly conclude
              that for the jury to assess meaningfully the defendant’s moral
              culpability and blameworthiness, it should have before it at
              the sentencing phase evidence of the specific harm caused by
              the defendant. “[T]he State has a legitimate interest in
              counteracting the mitigating evidence which the defendant is
              entitled to put in, by reminding the sentencer that just as the
              murderer should be considered as an individual, so too the
              victim is an individual whose death represents a unique loss
              to society and in particular to his family.” By turning the
              victim into a “faceless stranger at the penalty phase of a
              capital trial,” Booth [Booth v. Maryland, 482 U.S. 496, 107
              S.Ct. 2529 (1987)] deprives the State of the full moral force
              of its evidence and may prevent the jury from having before it
              all the information necessary to determine the proper
              punishment for a first-degree murder.

Id., 501 U.S. at 825, 111 S.Ct. at 2608. The Payne Court thus held that if a “State
chooses to permit the admission of victim impact evidence and prosecutorial argument on
that subject, the Eighth Amendment erects no per se bar.” Id., 501 U.S. at 827, 111 S.Ct.
at 2609. The majority opined that “[v]ictim impact evidence is simply another form or
method of informing the sentencing authority about the specific harm caused by the
crime in question, evidence of a general type long considered by sentencing authorities.”
Id., 501 U.S. at 825, 111 S.Ct. at 2608.



                                              18

                                   C. Jury Instructions

              Mr. Lister’s final argument is that the circuit court erred by failing to

provide the jury with “any standards to consider in deciding whether or not to

recommend mercy.” The State asserts that this Court has previously addressed this issue

and concluded that the type of instruction requested by Mr. Lister may not be given. We

agree.

              In Syllabus Point 1 of State v. Miller, 178 W.Va. 618, 363 S.E.2d 504

(1987), we held, “An instruction outlining factors which a jury should consider in

determining whether to grant mercy in a first degree murder case should not be given.”

In so holding, the Court noted that “[i]n jurisdictions where the decision to recommend

mercy is left entirely within the discretion of the jury and is made binding on the trial

court, it is uniformly held that an instruction which enumerates instances or suggests

when a mercy recommendation might be appropriate is reversible error.” Id. at 622, 363

S.E.2d at 508. Based on our ruling in Miller, we find no error with the circuit court’s

decision not to give an instruction outlining factors for the jury to consider in determining

whether to recommend mercy.

                                            IV.


                                     CONCLUSION


              The circuit court’s December 23, 2014, order denying Mr. Lister’s petition

for a writ of habeas corpus is affirmed.

                                                                                  Affirmed.


                                             19

