        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2015 Term
                                                                  FILED

                                                              October 7, 2015

                                                                released at 3:00 p.m.
                                      No. 14-0887               RORY L. PERRY II, CLERK
                                                              SUPREME COURT OF APPEALS
                                                                  OF WEST VIRGINIA




                          STATE OF WEST VIRGINIA,

                           Plaintiff Below, Respondent



                                           V.



                                 LILLIE MAE TRAIL

                               Defendant Below, Petitioner




                 Appeal from the Circuit Court of Lincoln County

                          Honorable Jay M. Hoke, Judge

                           Criminal Action No. 97-F-28


                                      AFFIRMED



                          Submitted: September 15, 2015

                             Filed: October 7, 2015



Jonathan R. Marshall                        Patrick Morrisey, Attorney General
Maryl C. Sattler                            Shannon Frederick Kiser
Bailey & Glasser                            Assistant Attorney General
Charleston, West Virginia                   Charleston, West Virginia
Attorneys for the Petitioner                Attorneys for the Respondent



JUSTICE DAVIS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT




              1.     “Misconduct of a juror, prejudicial to the complaining party, is sufficient

reason to direct a mistrial or to set aside a verdict returned by the jury of which he is a

member.” Syllabus point 3, Legg v. Jones, 126 W. Va. 757, 30 S.E.2d 76, 77 (1944).



              2.     “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.” Syllabus point 3,

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



              3.     “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 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


                                              i
West Virginia Rules of Evidence.” Syllabus point 7, State v. McLaughlin, 226 W. Va. 229,

700 S.E.2d 289 (2010).



              4.      Autopsy or crime scene photographs may be particularly relevant to

depicting the nature of the crime committed by a defendant who has been found guilty of first

degree murder. Even if deemed gruesome, the probative value of these photographs is

greater at the mercy phase of a bifurcated trial than at the guilt phase of such trial.



              5.      “Although Rules 401 and 402 of the West Virginia Rules of Evidence

strongly encourage admission of as much evidence as possible, Rule 403 of the West

Virginia Rules of Evidence restricts this liberal policy by requiring a balancing of interests

to determine whether logically relevant is legally relevant evidence. Specifically, Rule 403

provides that although relevant, evidence may nevertheless be excluded when the danger of

unfair prejudice, confusion, or undue delay is disproportionate to the value of the evidence.”

Syllabus point 9, State v. Derr, 192 W. Va. 165, 168, 451 S.E.2d 731, 734 (1994).



              6.      “A criminal defendant challenging the sufficiency of the evidence to

support a conviction takes on a heavy burden. An appellate court must review all the

evidence, whether direct or circumstantial, in the light most favorable to the prosecution and

must credit all inferences and credibility assessments that the jury might have drawn in favor


                                               ii
of the prosecution. The evidence need not be inconsistent with every conclusion save that

of guilt so long as the jury can find guilt beyond a reasonable doubt.             Credibility

determinations are for a jury and not an appellate court. Finally, a jury verdict should be set

aside only when the record contains no evidence, regardless of how it is weighed, from which

the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are

inconsistent, they are expressly overruled.” Syllabus point 3, State v. Guthrie, 194 W. Va.

657, 461 S.E.2d 163 (1995).




                                              iii
Davis, Justice:

              In this criminal appeal, the petitioner herein and defendant below, Lillie Mae

Trail (“Ms. Trail”), challenges her conviction by jury of murder in the first degree and her

sentence of life without mercy.1 Ms. Trail herein alleges the following errors: (1) jury

misconduct; (2) application of erroneous evidentiary standard for admission of autopsy and

crime scene photographs during mercy phase; (3) improper reading to jury of West Virginia

Slayer Statute; (4) flawed use of theme of “atonement” during prosecutor’s mercy phase

closing argument; (5) unsupported statements made by prosecutor during closing argument;

(6) wrongful admission into evidence of a summary chart; (7) insufficient evidence to

support jury’s verdict; and (8) cumulative error. Upon thorough review of these issues, the

party’s briefs, oral argument, and relevant law, we find no error and, therefore, affirm. On

the issue pertaining to the proper evidentiary standard for the admission of autopsy and crime

scene photographs during the mercy phase, we hold that, autopsy or crime scene photographs

may be particularly relevant to depicting the nature of the crime committed by a defendant

who has been found guilty of first degree murder. Even if deemed gruesome, the probative

value of these photographs is greater at the mercy phase of a bifurcated trial than at the guilt

phase of such trial.




              1
               We note that Ms. Trail’s present counsel is not the same counsel who filed Ms.
Trail’s appellate brief.

                                               1

                                                I.


                        FACTUAL AND PROCEDURAL HISTORY


              On November 22, 1994, Ms. Trail’s husband, Chester Trail, was hunting in the

woods when he was shot multiple times and killed. Ms. Trail’s subsequent trial commenced

on October 6, 1997, in the Circuit Court of Lincoln County, and ended on October 27, 1997.

During the course of the bifurcated trial, a jury first found Ms. Trail guilty of murder in the

first degree at the close of the guilt phase.2 In reaching its verdict, the jury found that Ms.

Trail had hired her nephew, Gregory Whittington, to kill her husband so that she could

collect on various policies of insurance.3 At the close of the penalty phase of the bifurcated

trial, the jury recommended no mercy. A sentencing hearing was held on December 9, 1997,

after which, by order entered on April 7, 1998, the circuit court imposed a sentence of life

without the possibility of parole. This sentence was ordered to run concurrently with a

sentence that had been previously imposed by the Circuit Court of Kanawha County

following Ms. Trail’s plea of no contest to a charge of unlawful wounding.4




              2
               At the close of the State’s case-in-chief, the defendant moved for a judgment
of acquittal. The motion was denied.
              3
                  Upon Ms. Trail’s request, the jury was polled. Each juror affirmed the guilty
verdict.
              4
              The unlawful wounding charge arose from an incident where, at Ms. Trail’s
request, Gregory Whittington and his father, who also is Ms. Trail’s brother, drugged, tied
up, and beat Mark Medley with a claw hammer. Mark Medley was Ms. Trail’s brother-in­
law.

                                                2

              Thereafter, in August 1998, Ms. Trail filed her post-trial motion for acquittal

or, in the alternative, for a new trial. The motion alleged juror misconduct and various trial

errors. The circuit court held a hearing on the alleged jury misconduct, as required by

Syllabus point 2 of State v. Sutphin, 195 W. Va. 551, 466 S.E.2d 402 (1995), on November

5, 1998. By summary order entered several years later, on June 8, 2006,5 the circuit court

denied both motions. The summary order was followed by a more detailed order, entered on

January 8, 2007, containing more thorough findings of fact and conclusions of law pertaining

to the circuit court’s denial of Ms. Trail’s post-trial motions. In that order, the circuit court

noted that Ms. Trail’s motion alleging jury misconduct, made under Rule 33 of the West

Virginia Rules of Criminal Procedure, had not been timely filed. Nevertheless, the circuit

court stated that its denial was based upon the merits of the motion.6

              5
                  The June 8, 2006, order stated that the circuit court

              was at this time entering a summary order, with a further order
              to follow with more particular findings of fact and conclusions
              of law, as a result of problems when the roof of the Lincoln
              County Courthouse leaked and caused extensive damages to the
              Judge’s Chambers and the Court’s records. Since that time,
              however, those problems have now been alleviated, thereby
              allowing this court to enter this summary order and the
              following more particular order. Thus, the Court is placing all
              parties hereto on notice that a further Post-Conviction
              Procedural Order shall follow.
              6
                  The circuit court’s order states:

              [T]he Defendant’s Motion for a New Trial was not timely under
              Rule 33 of the West Virginia Rules of Criminal Procedure. The
                                                                                  (continued...)

                                                 3

              By subsequent order entered on July 15, 2014,7 the circuit court granted Ms.

Trail’s motion seeking resentencing in order to restart the appeal period to challenge her

conviction and sentence. This appeal followed.8


              6
               (...continued)
              Motion for a new trial was filed in August of 1998, well past the
              ten (10) days allowed for filing a Motion for New Trial.
              However, the Defendant’s attorney did file a Motion for
              Extension of Time to file certain items, including an Appeal; in
              response to which the Court noted that until this Order was
              issued, there would be no final order; . . .

              ....

              While this WVRCrP Rule 33 Motion was not timely filed, it was
              not the deciding factor as to why this Motion is DENIED.
              Given the gravity of the allegations and given the nature of the
              offense charge and the conviction returned by the trial jury, this
              Court proceeded in the interests of justice and held Sutphin
              hearing(s) to investigate and determine the Defendant’s
              allegations of “juror misconduct”, but found little or no evidence
              of “jury misconduct”, and with such in no way approaching the
              “clear and convincing” evidence standard within the test set out
              in Sutphin . . . .
              7
                The record does not adequately explain why Ms. Trail’s appeal was not
perfected for roughly eight years following the circuit court’s entry of its final order denying
her post trial motions and more than sixteen years following the entry of her initial
sentencing order. Her motion for resentencing made in the circuit court merely refers to
“delays associated with reappointing counsel.” We note that Ms. Trail has not made this
delay an issue or assignment of error. Therefore, any issue related to the delay has been
waived. State v. Lockhart, 208 W. Va. 622, 627 n.4, 542 S.E.2d 443, 448 n.4 (2000)
(“Assignments of error that are not briefed are deemed waived.”); Tiernan v. Charleston
Area Med. Ctr., Inc., 203 W. Va. 135, 140 n.10, 506 S.E.2d 578, 583 n.10 (1998) (“Issues
not raised on appeal or merely mentioned in passing are deemed waived.” (citation omitted)).
              8
                  Additional facts pertaining to specific assignments of error will be set out in
                                                                                  (continued...)

                                                 4

                                             II.


                               STANDARD OF REVIEW


              Ms Trail’s case is before this Court on appeal from an order denying her

motion seeking a new trial or, in the alternative, a judgment of acquittal based upon the

insufficiency of the evidence. This Court applies the following general standard when

reviewing a circuit court decision denying a new trial:

                     In reviewing challenges to findings and rulings made by
              a circuit court, we apply a two-pronged deferential standard of
              review. We review the rulings of the circuit court concerning a
              new trial and its conclusion as to the existence of reversible
              error under an abuse of discretion standard, and we review the
              circuit court’s underlying factual findings under a clearly
              erroneous standard. Questions of law are subject to a de novo
              review.

Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Additionally, we note that

“[t]he Court applies a de novo standard of review to the denial of a motion for judgment of

acquittal based upon the sufficiency of the evidence.” State v. Juntilla, 227 W. Va. 492, 497,

711 S.E.2d 562, 567 (2011) (per curiam) (citing State v. LaRock, 196 W. Va. 294, 304, 470

S.E.2d 613, 623 (1996)). Accord State v. Minigh, 224 W. Va. 112, 124, 680 S.E.2d 127, 139

(2009) (per curiam).



              With due regard for these general standards for our review, we will address the


              8
              (...continued)
our discussion of the errors to which they pertain.

                                              5

issues raised by Ms. Trail. We will observe additional standards for our review of particular

issues she has raised as necessary below.



                                              III.


                                        DISCUSSION


              Ms. Trail herein raises numerous errors to challenge her conviction of murder

in the first degree and her sentence of life without mercy. We will address in turn each of

the errors she has raised.



                                     A. Jury Misconduct

              Following the conclusion of the trial, Ms. Trail’s lawyer received information

that a juror, Teresa Nunley (“Juror Nunley”), may have discussed the case with a co-worker

during the trial. On November 5, 1998, the circuit court conducted a Remmer hearing9 to

              9
               See State v. Sutphin, 195 W. Va. 551, 558, 466 S.E.2d 402, 409 (1995) (“A
hearing (or hearings) conducted to determine whether or not any contact with a juror was
prejudicial has now been informally named a Remmer hearing.”). The term “Remmer
hearing” originates from Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654
(1954), wherein the United States Supreme Court “addressed the obligation of a trial court
who learns, directly or indirectly, that a juror has been contacted during a trial.” Sutphin, 195
W. Va. 551, 557, 466 S.E.2d 402, 408.

              This Court requires such a hearing in response to allegations of juror
misconduct:

                   In any case where there are allegations of any private
              communication, contact, or tampering, directly or indirectly,
                                                                                  (continued...)

                                               6

consider evidence of the misconduct and to ascertain what, if any, prejudice resulted

therefrom.



                  During the Remmer hearing, Linda Shamblin (“Ms. Shamblin”), the co-worker

with whom Juror Nunley allegedly had engaged in an improper communication, testified that

her daughter previously had been married to Ms. Trail’s son. Through Ms. Shamblin’s

testimony, it became apparent that Ms. Shamblin and Ms. Trail did not have a friendly

relationship. It also was revealed that Ms. Shamblin did not personally know Juror Nunley

and had no authority over Juror Nunley at their place of employment. Ms. Shamblin testified

that she had heard Juror Nunley was sitting on Ms. Trail’s jury. According to Ms. Shamblin,

one morning while the trial was ongoing she encountered Juror Nunley in their workplace

break room and inquired “[a]re you on [Ms. Trail’s] trial?” Ms. Shamblin testified that Juror



                  9
                   (...continued)
                  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 received a fair trial.

Syl. pt. 2, id.

                                                   7

Nunley responded that she was “not allowed to discuss that,” and the conversation ended.



              Juror Nunley’s testimony differed from Ms. Shamblin’s. According to Juror

Nunley, Ms. Shamblin approached her in the break room and asked if she was serving on Ms.

Trail’s jury. Upon receiving an affirmative answer, Ms. Shamblin went on to comment “Oh,

I know she is guilty,” along with other similar, yet brief, comments. Juror Nunley stated that

she promptly left the break room. On the issue of influence, Juror Nunley testified that,

although she felt Ms. Shamblin was attempting to sway her, Ms. Shamblin’s comments had

no influence on the verdict she rendered in the case. Juror Nunley pointed out that the two

women had one solitary encounter about the trial and that encounter lasted only a few

seconds. She also testified that she did not tell any other jurors about the comments Ms.

Shamblin made to her.



              The third and final person to testify at the Remmer hearing was Misty

Holtzman (“Ms. Holtzman), another of Juror Nunley’s co-workers. Ms. Holtzman, who is

a friend of the defendant, Ms. Trail, worked alongside Juror Nunley at their place of

employment. She testified that Juror Nunley told her of the encounter with Ms. Shamblin.

According to Ms. Holtzman’s testimony, Juror Nunley described the encounter as being

initiated when Juror Nunley approached Ms. Shamblin and inquired about her knowledge of

Ms. Trail. The version of the encounter related by Ms. Holtzman was that Ms. Shamblin


                                              8

informed Juror Nunley of the history of problems between Ms. Shamblin’s daughter and Ms.

Trail’s son, and that Ms. Shamblin encouraged Juror Nunley to “say that [Ms. Trail] is guilty

because she was guilty as sin.” Ms. Holtzman testified to her belief that Juror Nunley had

been influenced by the conversation with Ms. Shamblin based upon Ms. Holtzman’s

observations of Juror Nunley’s facial expressions as she described the encounter.



              Following the Remmer hearing, by order entered on January 8, 2007, the circuit

court found insufficient evidence of juror misconduct to warrant granting a new trial on this

basis. On appeal, Ms. Trail contends that the circuit court erred by placing the burden of

proof upon her to establish juror misconduct without first determining whether the source of

the improper juror contact was an “interested party.” The State responds that the circuit court

properly applied the standards set out by this Court in Sutphin, 195 W. Va. 551, 466 S.E.2d

402.



              At the outset, we note that 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

                                               9

              W. Va. 653, 164 S.E. 31 (1932).

Syl. pt. 1, Sutphin, 195 W. Va. 551, 466 S.E.2d 402. This Court is mindful that juror

misconduct is an issue not to be taken lightly.

              Any challenge to the lack of the impartiality of a jury assaults
              the very heart of due process. Irvin v. Dowd, 366 U.S. 717, 721­
              722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 755 (1961). “The
              inevitable result of misconduct on the part of a juror is to cast
              suspicion on the impartiality of the verdict rendered by a jury of
              which he is a member.” Legg v. Jones, 126 W. Va. 757, 763, 30
              S.E.2d 76, 79 (1944).


Sutphin, 195 W. Va. at 557, 466 S.E.2d at 408. Nevertheless, the mere allegation of juror

misconduct is insufficient to warrant a new trial. First, their 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.” 58 Am. Jr. 2d New Trial §

143, at 195 (2012) (footnote omitted). When misconduct is established, a new trial is

warranted where prejudice is established. “Misconduct of a juror, prejudicial to the

complaining party, is sufficient reason to direct a mistrial or to set aside a verdict returned

by the jury of which he is a member.” Syl. pt. 3, Legg v. Jones, 126 W. Va. 757, 30 S.E.2d

76 (1944) (emphasis added).



              There is no dispute that a communication about Ms. Trail was had between

Juror Nunley and Ms. Shamblin during the course of the trial. The issue raised by Ms. Trail

is whether the circuit court erred in failing to find Ms. Shamblin was an “interested party”

                                              10

to Ms. Trail’s criminal action such that Ms. Trail was entitled to a presumption of prejudice:

                     Upon a clear and satisfactory showing of misconduct by
              a juror induced, or participated in, by an interested party, no
              proof is required that the misconduct resulted in prejudice to the
              complaining party. Prejudice is presumed and unless rebutted
              by proof the verdict will be set aside. Flesher v. Hale, 22
              W. Va. 44 [(1883), overruled on other grounds by Proudfoot v.
              Dan’s Marine Serv., Inc., 210 W. Va. 498, 558 S.E.2d 298
              (2001)]. But where such misconduct is induced by a stranger,
              or a person having no interest in the litigation, unless manifestly
              prejudicial, the effect thereof must be established by proof.

Legg v. Jones, 126 W .Va. 757, 763-64, 30 S.E.2d 76, 80 (emphasis added). See also

Bluestone Indus., Inc. v. Keneda, 232 W. Va. 139, 143, 751 S.E.2d 25, 29 (2013) (per

curiam) (“Based on the Court’s holding in Legg, we begin our analysis with two inquires.

First, did the conversation between Mr. Cline and Juror Number Six raise a presumption of

prejudice? Second, if a presumption of prejudice was raised, did the defendants present

evidence rebutting it?”). In other words,

                      [i]n order to determine whether the trial judge abused his
              discretion, we first need to examine whether the misconduct was
              induced by a third-party stranger having no interest in the
              litigation, or whether a juror was induced to participate in an act
              of misconduct by an interested party. This analysis is necessary
              in order to determine whether prejudice is presumed, as in the
              latter factual construct (and unless rebutted by proof, the verdict
              will be set aside), or whether the misconduct was induced by a
              stranger or person having no interest in the litigation, thus
              requiring proof of manifest prejudice by clear and convincing
              evidence. Legg v. Jones, 126 W. Va. 757, 30 S.E.2d 76 (1944);
              See also State v. Daniel, 182 W. Va. 643, 391 S.E.2d 90 (1990).

Sutphin, 195 W. Va. at 557, 466 S.E.2d at 408. The circuit court implicitly concluded that


                                              11

Ms. Shamblin was a stranger to the proceedings and placed the burden of establishing

prejudice on Ms. Trail. Under the facts presented in this case, we find no error.



              Ms. Trail argues that Ms. Shamblin is an “interested party” by virtue of her

history with Ms. Trail, i.e., the fact that Ms. Shamblin’s daughter previously had been

married to Ms. Trail’s son and Ms. Shamblin’s “ill will”10 toward Ms. Trail. Although this

Court has not provided an express definition of an “interested party” in the context of juror

misconduct, our past cases clearly require a more direct connection to the litigants involved

in the trial affected by the alleged misconduct than exists in this instance.



              For example, in Sutphin the Court concluded that misconduct had been induced



              10
                 According to a portion of the record relied upon by Ms. Trail to establish this
“ill will,” Ms. Shamblin testified as follows:

                     Q.   And is it fair to say that there has been some bad
              blood between you and the Trail family over your daughter?

                      A.     Somewhat, years ago.

                     Q.     Well, you still hold - - I mean, we spoke last night.
              You still hold some hard feelings about it?

                     A.      I don’t know if you call it hard feelings or not. I
              told you I just didn’t approve of the things she did.

Other testimony cited by Ms. Trail similarly included statements about Ms. Shamblin’s past
feelings about Ms. Trail resulting from the relationship between their children.

                                              12

by a stranger where the juror’s contact with the defendant’s cousin “was not procured by the

State or by the Defendant.” 195 W. Va. at 559-60, 466 S.E.2d at 410-11 (emphasis added).11

Similarly, the following discussion in Legg v. Jones demonstrates that the Court considered

an “interested party” to be the plaintiff, the defendant, or an attorney representing one of

them:

               Misconduct of jurors in drinking liquor with an interested party
               [(the plaintiff)] at a saloon has been emphatically condemned.
               Pickens v. Coal River Boom & Timber Company, 58 W. Va. 11,
               18, 50 S.E. 872, 6 Ann. Cas. 285 [(1905)]. Transportation of a
               juror between his home and the county seat by an interested
               attorney [(one of the plaintiffs’ attorneys)] during a trial is the
               basis of an admonition to attorneys and jurors to refrain from
               such conduct. Mullens v. Lilly, 123 W. Va. 182, 13 S.E.2d 634
               [(1941)]. If an interested attorney or a party to pending
               litigation furnishes food and lodging to a juror who, at the time
               thereof, is engaged in the trial of an action in which the attorney
               or the party is interested, both are guilty of misconduct, and a
               favorable verdict should not be received or sustained. 39 Am.
               Jur., Title New Trial, Section 97; 55 A.L.R. 756, note. See
               Griffin v. Tomlinson, 155 Va. 150, 154 S.E. 483 [(1930)],
               wherein the rule stated above is applied to the report of
               commissioners in a condemnation proceeding.

Legg, 126 W. Va. 757, 763, 30 S.E.2d 76, 79-80 (emphasis added). See also Bluestone

Indus., Inc., 232 W. Va. 139, 143, 751 S.E.2d 25, 29 (indicating trial representative of

corporate defendant was an interested party); Haight v. Goin, 176 W. Va. 562, 564, 346



               11
                 The juror in Sutphin was acquainted with the defendant’s cousin and engaged
in a two- to three-hour visit with the cousin during the course of the trial and prior to the trial
court’s charge to the jury, closing arguments, and jury deliberation. Sutphin, 195 W. Va.
551, 466 S.E.2d 402.

                                                13

S.E.2d 353, 355 (1986) (“In Legg[, 126 W. Va. 757, 30 S.E.2d 76], we discussed the

necessity of proving prejudice where the alleged misconduct does not involve a party.”

(emphasis added)); Griffin v. Tomlinson, 155 Va. 150, 153-54, 154 S.E. 483, 484 (1930)

(“[A]lmost all of the courts and text writers are agreed that for reasons of public policy the

verdict rendered by a jury, any of whose members has been treated or entertained by one

having an interest in the litigation, must be set aside. The same rule applies to the acts of

agents or attorneys of the parties litigant.” (emphasis added)). Likewise, the West Virginia

Trial Court Rules expressly prohibit a party to litigation, or the agent or attorney for a party,

from communicating with a member of the jury. See W. Va. T.C.R. 4.09 (“No party, nor his

agent or attorney, shall communicate or attempt to communicate with any member of the

jury . . . until that juror has been excused from further service for a particular term of

court[.]” (emphasis added)).



              In this case, Ms. Shamblin clearly was not a party to Ms. Trail’s litigation, or

acting as an agent or representative of a party. Rather than being an interested party, Ms.

Shamblin simply was a member of the general public who appeared to be interested in the

proceedings. This Court previously has found that a person’s concern for a defendant does

not make them an “interested party” to the litigation. In State v. Daniel, 182 W. Va. 643, 391

S.E.2d 90 (1990), a juror was contacted by a businesswoman, Betty Kelly, and encouraged

to do what she could to help the defendant. Ms. Kelly was in the used car business and


                                               14

implied that she would give the juror’s son a break on a used car. The Court found Ms. Kelly

was not an interested party, commenting that, “[i]n the case now before us, Betty Kelly had

no interest in the trial apart from her apparent concern for the appellant. No evidence was

presented that the appellant induced her to act in his behalf . . .” Daniel, 182 W. Va. at 647,

391 S.E.2d at 94. In the case sub judice, Ms. Shamblin’s interest differed from that

addressed in Daniel insofar as it appears to have been negative to, rather than in favor of, the

defendant. Nevertheless, such a concern does not elevate her status to that of an “interested

party.” Therefore, her communication with Ms. Nunley created no presumption of prejudice

that the state was required to overcome.

                     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.

Syl. pt. 3, Sutphin, 195 W. Va. 551, 466 S.E.2d 402. 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 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)).

                                              15

              Indeed, the United States Supreme Court has observed that,

              due 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, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982).



              In the instant case the trial court properly conducted a Remmer hearing and

evaluated the evidence presented by Ms. Trail. Having the advantage of observing the

witnesses and making appropriate credibility determinations,12 the circuit court concluded

that Ms. Trail failed to establish she had been prejudiced to the extent that she did not receive

a fair trial. See Syl. pt. 3, Sutphin, 195 W. Va. 551, 466 S.E.2d 402. Under these

circumstances, we find no abuse of discretion.13

              12
                “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). See also State
v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An appellate court
may not decide the credibility of witnesses or weigh evidence as that is the exclusive function
and task of the trier of fact.”).
              13
                   The day prior to oral argument of this matter, counsel for Ms. Trail submitted
                                                                                   (continued...)

                                                16

                         B. Mercy Phase Evidentiary Standard for

                          Autopsy and Crime Scene Photographs


              Ms. Trail next argues that the trial court erred by allowing autopsy and crime



              13
                (...continued)
to this Court the case of Barnes v. Joyner, 751 F.3d 229, 241 (4th Cir. 2014), cert. denied,
135 S. Ct. 2643 (2015). This submission was purportedly made pursuant to Rule 10(I) of the
West Virginia Rules of Appellate Procedure. Rule 10(I) allows a party to present authorities
to this Court that “were not available in time to have been included in the party’s brief.”
Insofar as the Barnes opinion was issued on May 5, 2014, and the deadline for perfecting this
appeal was not until November 18, 2014, Barnes was available in time to have been included
in Ms. Trail’s brief and was not proper for submission under Rule 10(I). See supra note 1
for a comment related to a change in counsel of record for Ms. Trail.

               Likewise, at oral argument, counsel for Ms. Trail urged this Court to adopt a
presumption of prejudice deriving from Barnes that must be overcome by the government
upon “‘any private communication, contact, or tampering, directly or indirectly, with a juror
during a trial about the matter pending before the jury.’” We decline Ms. Trail’s invitation
for several reasons. First, unlike the present case where the trial court conducted a proper
Remmer hearing, the issue in Barnes was the lower court’s failure to conduct a Remmer
hearing after being apprised of alleged juror misconduct. Second, the presumption addressed
in Barnes is not settled law. The Barnes court observed that,

              [w]ith respect to the presumption of prejudice, we have recently
              observed, “there is a split among the circuits regarding whether
              the Remmer presumption has survived intact following” the
              Supreme Court’s decisions in Smith v. Phillips, 455 U.S. 209,
              102 S. Ct. 940, 71 L. Ed. 2d 78 (1982), and United States v.
              Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).
              United States v. Lawson, 677 F.3d 629, 642 (4th Cir. 2012); see
              also id. at 643–44 (describing the circuit split).

751 F.3d at 242. Finally, this Court previously has itself interpreted Remmer and, based upon
that interpretation, has adopted a procedure to protect a defendant’s right to an impartial jury.
See Sutphin, 195 W. Va. 551, 466 S.E.2d 402, discussed supra at note 9. As set out in our
discussion above, the circuit court is this case followed Sutphin and held a proper hearing to
address the juror misconduct alleged by Ms. Trail.

                                               17

scene photographs to be admitted during the mercy phase of her trial.14 Ms. Trail contends

that the photographs were non-probative and unfairly prejudicial under Rules 401 and 403

of the West Virginia Rules of Evidence. According to Ms. Trail, bifurcation does not permit

the circuit court to relax admissibility requirements during the mercy phase of trial to admit

evidence that had been found to be inadmissible during the guilt phase.15 The State responds

              14
                 We wish to make clear that Ms. Trail has not argued to this Court that the
photographs should have been excluded from the mercy phase proceeding because they were
gruesome. Instead, Ms. Trail has argued only that it was error for the trial court to apply a
relaxed evidentiary standard during the mercy phase and to admit pictures that had been
excluded during the guilt phase of her trial. Additionally, we note that Ms. Trail is unable
to identify for this Court the precise photographs that were presented to the jury during the
mercy phase of her trial. In her brief, Ms. Trail’s attorney explains that

                      [t]he undersigned counsel reviewed the official Court file
              located in the Lincoln County Circuit Clerk’s Office.
              Unfortunately, the crime scene photographs were missing from
              the Court file. However, the undersigned was able to locate the
              crime scene photographs, in the file maintained by Petitioner’s
              trial counsel, Timothy Koontz. The photographs were contained
              in an envelope labeled “crime scene.” As such, Petitioner
              believes that A.R. Vol 13, 90-120 are the official crime scene
              photographs that should have been in the Court file.

Based upon the record submitted on appeal, it appears that five photographs were admitted
during the mercy phase of trial, two autopsy photos of the victim and three photos depicting
the victim at the crime scene. The photographs referenced in Ms. Trails brief, identified as
being located in Vol. 13 of the appellate record at pages 90-120, are thirty images of the
crime scene. Chester Trail, the victim, is portrayed in ten of those thirty crime-scene images.
The parties to this appeal do not identify which of the thirty crime scene photographs were
actually published to the jury. The appellate record also includes only one autopsy
photograph of the victim, while two such photos were apparently published to the jury.
              15
                 Ms. Trail additionally asserts, without supporting argument or citation to legal
authority, that the circuit court’s admission of the challenged photographs violated her due
                                                                                  (continued...)

                                               18

that the circuit court applied the correct evidentiary standard and found the photographs to

have a higher probative evidentiary value in the mercy phase of the trial. Our review of this

issue is for an abuse of discretion. “A trial court’s evidentiary rulings, as well as its

application of the Rules of Evidence, are subject to review under an abuse of discretion

standard.” Syl. pt. 4, State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).



              The admissibility of gruesome photographs previously has been addressed by

this Court in State v. Derr, 192 W. Va. 165, 168, 451 S.E.2d 731, 734 (1994). The Derr

Court explained that “[t]he admissibility of photographs over a gruesome objection must be

determined on a case-by-case basis pursuant to Rules 401 through 403 of the West Virginia

Rules of Evidence.” Syl. pt. 8, id. Moreover,

                      Rule 401 of the West Virginia Rules of Evidence requires
              the trial court to determine the relevancy of the exhibit on the
              basis of whether the photograph is probative as to a fact of
              consequence in the case. The trial court then must consider


              15
                 (...continued)
process and equal protection rights. Because this issue was not developed, we find the issue
was not adequately briefed and we deem the matter waived. See State v. LaRock, 196 W. Va.
294, 302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs in determining
issues presented for review, issues which are . . . mentioned only in passing but are not
supported with pertinent authority . . . are not considered[.]”); State v. Lilly, 194 W. Va. 595,
605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (“[C]asual mention of an issue in a brief is
cursory treatment insufficient to preserve the issue on appeal.”); State Dep’t of Health &
Human Res. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (“‘A
skeletal “argument,” really nothing more than an assertion, does not preserve a
claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.’” (quoting United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)).

                                               19

              whether the probative value of the exhibit is substantially
              outweighed by the counterfactors listed in Rule 403 of the West
              Virginia Rules of Evidence. 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.

Syl. pt. 10, Derr, 192 W. Va. 165, 451 S.E.2d 731.



              The trial in Derr does not appear to have been bifurcated, thus the standards

for the admission of gruesome photographs announced therein would apply to the guilt phase

of a prosecution. The instant case is one of first impression in asking this Court to determine

whether the same high standard announced in Derr applies also to the admission of gruesome

photographs during the mercy phase of a bifurcated trial.16 The type of evidence admissible

in the mercy phase of a bifurcated trial was set out in Syllabus point 7 of State v.

McLaughlin, 226 W. Va. 229, 700 S.E.2d 289 (2010), wherein this Court held:



              16
                 In State v. Rygh, 206 W. Va. 295, 524 S.E.2d 447 (1999), we declined to
address this issue because it was not properly before the Court. See Rygh, 206 W. Va. at 297
n.2, 524 S.E.2d at 449 n.2 (“During the mercy phase of the appellant’s trial, the prosecution
also introduced gruesome photos of the victims–also apparently without a substantive
objection by appellant’s counsel. State v. Derr, 192 W. Va. 165, 178-79, 451 S.E.2d 731,
744-45 (1994) reiterated this Court’s awareness of the potential for ‘hideous, ghastly,
horrible, or dreadful’ photographs to ‘arouse passion and cause the jury to [act] on improper
grounds,’ a concern that is applicable to both phases of a bifurcated murder
trial. . . . However, in the instant case we do not address the issue of the admissibility of the
victims’ photographs, as it is not before us.”). See supra note 14 for an explanation of why
we do not address whether or not the photographs admitted in the case sub judice were
unduly gruesome.

                                               20

                    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 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.

(Emphasis added).



             While Derr and McLaughlin both are clear that the proper analysis for

determining the admissibility of gruesome photographs involves an evaluation under Rules

401 and 403, McLaughlin additionally establishes that “[t]he 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.” Syl. pt. 7, in part, McLaughlin, 226 W. Va. 229, 700 S.E.2d 289 (emphasis

added).17 What this means is that the probative value of evidence is greater at the mercy


             17
                 We additionally point out 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:

                    Rules Inapplicable. Unless otherwise provided by rules
                                                                               (continued...)

                                           21

stage than at the guilt phase, because the relevant issues are broader. As the McLaughlin

Court observed, during the mercy phase “[a]dmissible 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

defendant.” Syl. pt. 7, in part, McLaughlin, 226 W. Va. 229, 700 S.E.2d 289. Indeed, 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 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.18 In her dissenting opinion in Schofield v. West Virginia


              17
                (...continued)

              of the Supreme Court of Appeals, these rules other than those

              with respect to privileges do not apply in the following

              situations:


                        .....

                     (3) Miscellaneous Proceedings. Sentencing; granting or
              revoking probation or supervised release; issuance of warrants
              for arrest, criminal summonses and search warrants; and
              proceedings with respect to release on bail or otherwise.

W. Va. R. Evid. 1101(b). Thus, 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, 226 W. Va. 229, 700 S.E.2d 289 (2010), 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. Rule 1101 was amended in 2014;
however, that amendment was primarily stylistic and made no substantive change relevant
to manner in which we herein apply the rule.
              18
                   See W. Va. Code § 62-3-15 (1994) (Repl. Vol. 2014).

                                              22

Department of Corrections, 185 W. Va. 199, 207, 406 S.E.2d 425, 433 (1991), Justice

Workman pointed out that “[t]he 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.” Particularly relevant in the context of gruesome photographs is their depiction of

the nature of the crime committed. Accordingly, we now expressly hold that, autopsy or

crime scene photographs may be particularly relevant to depicting the nature of the crime

committed by a defendant who has been found guilty of first degree murder. Even if deemed

gruesome, the probative value of these photographs is greater at the mercy phase of a

bifurcated trial than at the guilt phase of such trial.



               In ruling to admit the offered photographs into evidence during the mercy

phase of the case sub judice, the circuit court explained that, “while I didn’t allow the

autopsy photos or any other crime scene photos in, on the issue of guilt or no guilt, I believe

that they are relevant, and that there [sic] probative value outweighs the prejudicial impact

they would have on the issue of mercy or no mercy.” We find no abuse of discretion in the

circuit court’s ruling.19


               19
                    We note that the Derr Court also clarified that,

                     [a]lthough Rule[] 401 . . . of the West Virginia Rules of
               Evidence strongly encourage[s] the admission of as much
                                                                                 (continued...)

                                                 23

                                     C. Slayer Statute

              The West Virginia Slayer Statute is found at W. Va. Code § 42-4-2 (1931)

(Repl. Vol. 2014). The statute prohibits a person who has been convicted of a felonious

killing, or of conspiracy in the killing of another, from receiving funds or property from the

victim:

                      No person who has been convicted of feloniously killing
              another, or of conspiracy in the killing of another, shall take or
              acquire any money or property, real or personal, or interest
              therein, from the one killed or conspired against, either by
              descent and distribution, or by will, or by any policy or
              certificate of insurance, or otherwise; but the money or the
              property to which the person so convicted would otherwise have
              been entitled shall go to the person or persons who would have
              taken the same if the person so convicted had been dead at the
              date of the death of the one killed or conspired against, unless by
              some rule of law or equity the money or the property would pass
              to some other person or persons.

W. Va. Code § 42-4-2. Upon motion of the State, and over Ms. Trail’s objection, the circuit



              19
                (...continued)
              evidence as possible, Rule 403 of the West Virginia Rules of
              Evidence restricts this liberal policy by requiring a balancing of
              interests to determine whether logically relevant is legally
              relevant evidence. Specifically, Rule 403 provides that although
              relevant, evidence may nevertheless be excluded when the
              danger of unfair prejudice, confusion, or undue delay is
              disproportionate to the value of the evidence.

Syl. pt. 9, Derr, 192 W. Va. 165, 451 S.E.2d 731. As noted previously, we are unable to
review the circuit court’s ruling as to the prejudicial effect of the gruesome photographs
insofar as Ms. Trail is unable to identify for this Court the precise photographs that were
presented to the jury during the mercy phase of her trial. See supra note 14.

                                              24

court took judicial notice of the statute and read its full text to the jury during the guilt phase

of the trial.



                Ms. Trail argues that the circuit court erred by reading the “Slayer Statute” to

the jury. She contends that reading the statute resulted in unfair prejudice to her insofar as

the statute was irrelevant, misleading, and created confusion. This is so, she argues, because

the statute was read when she had not yet been convicted of the murder of her husband, and

because the statute is relevant only in a civil proceeding resulting from the attempt of one

convicted of murder to obtain funds or property, including insurance proceeds, from the

victim. Accordingly, Ms. Trail contends that, under a proper application of Rules 401 and

403 of the West Virginia Rules of Evidence, the statute should not have been read to the jury.

The State responds that the circuit court correctly read the Slayer Statute because Ms. Trail

repeatedly had implied her innocence based upon her willingness to forego insurance

proceeds. The State contends that counsel for Ms. Trail, on several occasions during the

trial, made known to the jury that she was not receiving any proceeds from the policies that

insured her husband’s life.20 We agree with the State.


                20
                The State also asserts that similar comments where made during defense
counsel’s opening statement. The State fails to provide this Court with citations to the record
where these comments are located. We reviewed defense counsel’s entire opening statement
and found no reference to Ms. Trail declining insurance proceeds. We admonish counsel to,
in the future, carefully comply with Rule 10(d) of the West Virginia Rules of Appellate
Procedure by providing “appropriate and specific citations to the record.” W. Va. R. App. P.
                                                                                (continued...)

                                                25

              This issue challenges the circuit court’s admission of evidence; therefore, our

review is for an abuse of discretion. “The West Virginia Rules of Evidence . . . allocate

significant discretion to the trial court in making evidentiary . . . rulings. Thus, rulings on

the admissibility of evidence . . . are committed to the discretion of the trial court. Absent

a few exceptions, this Court will review evidentiary . . . rulings of the circuit court under an

abuse of discretion standard.” Syl. pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455

S.E.2d 788 (1995).



              It is well established that,

                      [t]o be admissible, evidence must first be relevant.
              W. Va. R. Evid. 402. Relevant evidence is “evidence having
              any tendency to make the existence of any fact that is of
              consequence to the determination of the action more probable or
              less probable than it would be without the evidence.” W. Va. R.
              Evid. 401.

State v. Wade, 200 W. Va. 637, 652, 490 S.E.2d 724, 739 (1997). In discussing Rule 401,

this Court has elaborated that,

              [u]nder Rule 401, evidence having any probative value
              whatsoever can satisfy the relevancy definition. Obviously, this
              is a liberal standard favoring a broad policy of admissibility.
              For example, the offered evidence does not have to make the
              existence of a fact to be proved more probable than not or
              provide a sufficient basis for sending the issue to the jury.



              20
                   (...continued)
10(d).

                                              26

McDougal v. McCammon, 193 W. Va. 229, 236, 455 S.E.2d 788, 795. Finally, this Court

has clarified that,

                      “[a]lthough Rules 401 and 402 of the West Virginia
               Rules of Evidence strongly encourage admission of as much
               evidence as possible, Rule 403 of the West Virginia Rules of
               Evidence restricts this liberal policy by requiring a balancing of
               interests to determine whether logically relevant is legally
               relevant evidence. Specifically, Rule 403 provides that although
               relevant, evidence may nevertheless be excluded when the
               danger of unfair prejudice, confusion, or undue delay is
               disproportionate to the value of the evidence.”

Syl. pt. 9, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731.



               A significant portion of the State’s case-in-chief was directed toward

establishing the existence of numerous policies of insurance under which the victim was the

insured and Ms. Trail was the beneficiary.21 Ms. Trail responded to this evidence by pointing

out that she did not receive proceeds from these policies. For example, while cross

examining a representative of Allianz Insurance, who testified to the existence of an

accidental death policy on Chester Trail’s life with Ms. Trail as the beneficiary, defense

counsel asked the following:

               Q      And isn’t it true that not a single dime of the policy


               21
               The State presented evidence of numerous polices with Chester Trail as the
insured and the defendant, Ms. Trail, as the beneficiary. Some were life insurance policies
and some were accidental death policies. The total value of all of the policies together
equaled $685,000. Several of the policies, amounting to $543,547 of the $685,000 total,
were purchased during the final two years of Chester Trail’s life.

                                              27

                     proceeds – well, first of all, all of the policy proceeds
                     have been paid out, have they not?

              A.	    Yes, they have.

              Q.	    And isn’t it true that not a single dime of the policy
                     proceeds were payable in this case to Lillie Trail?

              A.     That’s correct.

Similarly, the following is an excerpt of defense counsel’s cross examination of a

representative of Appalachian Life Insurance Company:

                      Q.     . . . Let’s put it all in plain words. Lillie Trail
              gave up any interest in taking any proceeds on the life insurance,
              is that correct?

                     A.	    That is correct.



              The foregoing portions of the record demonstrate that defense counsel implied

to the jury that, because Ms. Trail had voluntarily relinquished her right to receive proceeds

from the various policies of insurance covering her husband’s life, she had no financial

motive to orchestrate his death. Because of the presentation of this evidence to the jury, the

Slayer Statute became relevant to show that, if she was found to be guilty of participating in

the murder of her husband, Ms. Trail would be prohibited by law from receiving any

proceeds from those policies.22 Furthermore, the danger of unfair prejudice or confusion did


              22
               Assuming, for the sake of argument, that the circuit court did commit error
reading the Slayer Statute to the jury, we find such error was harmless beyond a reasonable
                                                                              (continued...)

                                               28

not substantially outweigh the probative value of the circuit court’s reading of the Slayer

Statute. As made evident above, it was necessary to read the statute to place in perspective

Ms. Trail’s assertions that she had received no proceeds from the insurance policies.

Accordingly, we find no abuse of discretion in the circuit court’s reading of the Slayer

Statute.23



                      D. Prosecutor’s Use of the Theme of “Atonement”

                           During Mercy Phase Closing Argument


              Ms. Trail next argues that the circuit court erred by allowing the prosecuting

attorney to imply, during his mercy phase closing argument, that a finding of no mercy would

bring atonement for the victim of an unrelated crime committed by Ms. Trail.24 The State


              22
                   (...continued)
doubt.
              23
                Ms. Trail also argues that a related instruction given by the circuit court was
confusing and failed to cure the error created by reading the Slayer Statute to the jury. The
instruction given by the circuit court follows:

                     Now, ladies and gentlemen, I want to instruct you that the
              mere reading of this statute to you is not to be automatically
              drawn any inference of guilt or innocence, but you are to
              consider it only in light of all the evidence and the law as
              instructed to you in this case, as well as the arguments of
              counsel.

Because we find no error in the circuit court’s reading of the statute to the jury, we
summarily reject this issue on the merits as the instruction was adequate and not confusing.
              24
                   See supra note 4 and accompanying text for a brief description of the
                                                                           (continued...)

                                              29

contends that it merely adopted the defense theme of atonement in making its closing.



              This Court has held that

                      [f]our factors are taken into account in determining
              whether improper prosecutorial comment is so damaging as to
              require reversal: (1) the degree to which the prosecutor’s
              remarks have a tendency to mislead the jury and to prejudice the
              accused; (2) whether the remarks were isolated or extensive; (3)
              absent the remarks, the strength of competent proof introduced
              to establish the guilt of the accused; and (4) whether the
              comments were deliberately placed before the jury to divert
              attention to extraneous matters.

Syl. pt. 6, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 (1995). However, we need not

apply the Sugg factors in this instance because we do not find the prosecutor’s comments

were prejudicial.



              During the mercy phase opening statement by Ms. Trail’s counsel, the

following relevant comments were made:

                       I must [seem] like a broken record. Mercy is about
              atonement, resolution, closure. Each one of you on this jury
              panel has a conscious. I talked to each one of you before the
              [trial], and I don’t think any of you lost it, and that you still have
              it. But I think each of you . . . and a lot of others [have] been
              misled. And I’m hoping maybe at this phase all of us have a
              chance to renew things, and consider atonement.



              24
               (...continued)
unrelated crime.

                                               30

(Emphasis added).



              It is clear from this passage that the issue of atonement was interjected into the

proceeding by the defense. To the extent that the prosecution then echoed the theme of

atonement when it summarized the aggravating factors for showing no mercy, the defense

opened the door to that theme and will not be heard to complain now. See Syl. pt. 4, State

v. Mann, 205 W. Va. 303, 518 S.E.2d 60 (1999) (“A judgment will not be reversed for any

error in the record introduced by or invited by the party seeking reversal.” (internal citations

omitted)). Cf. Syl. pt. 2, State v. Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971) (“An

appellant or plaintiff in error will not be permitted to complain of error in the admission of

evidence which he offered or elicited, and this is true even of a defendant in a criminal

case.”).25 Consequently, we find no error.


              25
              This Court explained the concept of “invited error” in State v. Crabtree, 198
W. Va. 620, 482 S.E.2d 605 (1996):

              “Invited error” is a cardinal rule of appellate review applied to
              a wide range of conduct. It is a branch of the doctrine of waiver
              which prevents a party from inducing an inappropriate or
              erroneous response and then later seeking to profit from that
              error. The idea of invited error is not to make the evidence
              admissible but to protect principles underlying notions of
              judicial economy and integrity by allocating appropriate
              responsibility for the inducement of error. Having induced an
              error, a party in a normal case may not at a later stage of the trial
              use the error to set aside its immediate and adverse
              consequences.
                                                                                      (continued...)

                                               31

                                 E. Prosecutorial Statements

              Ms. Trail next complains that the circuit court erred by permitting the

Prosecutor to make statements to the jury improperly implying that Ms. Trail mismanaged

her credit cards and her husband was looking at her bank accounts.26 The State responds that

the comment was fleeting and was supported by the evidence.27


              25
                (...continued)
Id. at 627, 482 S.E.2d at 612.
              26
                 Ms. Trail’s brief not only fails to quote the complained of statement, she also
fails to provide this court with a citation of where the statement is located in the record. She
implies that the complained of comment occurred during closing argument, but makes no
effort to identify at which phase of the bifurcated trial the closing comment was made. Ms.
Trail provides a reference to page 102 of A.R. Vol. 10 as the location of the circuit court’s
failure to provide a curative instruction. Notably, however, A.R. Vol. 10 stops at page 61.
Counsel is directed to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure,
which requires that a petitioner’s brief

              must contain an argument exhibiting clearly the points of fact
              and law presented, the standard of review applicable, and citing
              the authorities relied on, under headings that correspond with
              the assignments of error. The argument must contain
              appropriate and specific citations to the record on appeal,
              including citations that pinpoint when and how the issues in the
              assignments of error were presented to the lower tribunal. The
              Court may disregard errors that are not adequately supported by
              specific references to the record on appeal.

(Emphasis added).
              27
                  The State once again has failed to comply with Rule 10(d) of the Rules of
Appellate procedure by neglecting to direct this court to the location of relevant portions of
the trial record. For example, the State asserts that “[e]vidence was introduced that Petitioner
was worried that the victim would eventually find out about the insurance premiums.
Evidence was introduced that Petitioner was having trouble paying the premiums each
                                                                                  (continued...)

                                              32

              Our review of the complained of statements, which were made during the

State’s guilt phase closing argument, quickly revealed that this issue was not preserved for

appellate review.28 Following the complained of comment by the prosecuting attorney, the

following exchange is reflected in the record:

                     MR. KOONTZ [Defense Counsel]:              Judge, I would
              have to object at this point. There’s been no evidence of credit
              cards in this case. There’s no evidence of him sniffing around
              the finances in this case. Mr. Blevins –

                     THE COURT:           If you would like to approach the
              bench, giving an objection during closing argument I’d be happy
              to entertain that. No more speaking objections. I won’t allow
              it from the State and I won’t allow it from the defense.

                    MR. BLEVINS [Prosecutor]:              I’ll just move on to
              something else, Judge.

Following this dialog, Mr. Blevins resumed his closing argument.



              The above excerpt shows that defense counsel began to object, but was stopped

by the trial court and invited to approach the bench to assert his objection and provide the

grounds therefor. Significantly, defense counsel did not accept the trial court’s invitation and

the State’s closing argument resumed with no objection to the statement herein challenged.


              27
               (...continued)
month.” Yet the State utterly fails to direct this Court to the location of the referred to
evidence in the record. See supra note 20.
              28
                   We note that Ms. Trail’s counsel at trial is not the same as her appellate
counsel.

                                               33

Because there was no objection, there is no accompanying ruling by the trial court for our

review. As this Court previously has explained:

              Our cases consistently have demonstrated that, in general, the
              law ministers to the vigilant, not to those who sleep on their
              rights. . . . When a litigant deems himself or herself aggrieved
              by what he or she considers to be an important occurrence in the
              course of a trial . . . he or she ordinarily must object then and
              there or forfeit any right to complain at a later time. The
              pedigree for this rule is of ancient vintage, and it is premised on
              the notion that calling an error to the trial court’s attention
              affords an opportunity to correct the problem before irreparable
              harm occurs.

State v. LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996). This Court also has

made clear that,

              [t]o preserve an issue for appellate review, a party must
              articulate it with such sufficient distinctiveness to alert a circuit
              court to the nature of the claimed defect. The rule in West
              Virginia is that parties must speak clearly in the circuit court, on
              pain that, if they forget their lines, they will likely be bound
              forever to hold their peace. The forfeiture rule . . . fosters
              worthwhile systemic ends and courts will be the losers if we
              permit the rule to be easily evaded. It must be emphasized that
              the contours for appeal are shaped at the circuit court level by
              setting forth with particularity and at the appropriate time the
              legal ground upon which the parties intend to rely.

State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996) (citation

omitted). See also Syl. pt. 3, O’Neal v. Peake Operating Co., 185 W. Va. 28, 404 S.E.2d 420

(1991) (“‘Where objections were not shown to have been made in the trial court, and the

matters concerned were not jurisdictional in character, such objections will not be considered

on appeal.’” (citation omitted)); Syl. pt. 1, State Rd. Comm’n v. Ferguson, 148 W. Va. 742,

                                               34

137 S.E.2d 206 (1964) (same). Because this issue was not preserved by the assertion of a

proper objection at trial, we decline to address the same.



                             F. Admission of Summary Chart

              Ms. Trail next complains that the circuit court erred by admitting into evidence

a chart that summarized all of the insurance policies on Chester Trail’s life. She contends

that, because the summary chart was improperly admitted into evidence, the jury was allowed

to have possession of the chart during its deliberations. She complains that the chart was not

entirely accurate29 and was, therefore, misleading. In addition, Ms. Trail complains that the

chart failed to identify the person who purchased each policy. The State responds that the

trial court’s admission of the summary chart was proper.



              Although the use of summaries is governed by Rule 1006 of the West Virginia

Rules of Evidence, we cannot apply that Rule to the facts of this case for a simple reason;

Ms. Trail has failed to direct this Court to the portion of the record containing her objection

to the admission of the summary chart. Pursuant to Rule 10(c)(7) of the West Virginia Rules

of Appellate Procedure, the argument section of the petitioner’s brief “must contain

appropriate and specific citations to the record on appeal, including citations that pinpoint


              29
                 Ms. Trail contends that the chart did not accurately reflect the beneficiary of
one of the policies at the time of trial. This argument is disingenuous. Ms. Trail concedes
that she initially was the beneficiary listed on the policy.

                                              35

when and how the issues in the assignments of error were presented to the lower tribunal.

The Court may disregard errors that are not adequately supported by specific references to

the record on appeal.” (Emphasis added). This Court previously has found issues asserted

on appeal to have been waived as a result of a petitioner’s failure to comply with Rule

10(c)(7). See, e.g., Evans v. United Bank, Inc., ___ W. Va. ___, ___, 775 S.E.2d 500, 510

(2015) (observing that petitioners’ argument failed to meet requirements of Rule 10(c)(7),

and concluding, therefore, “the issue has been waived for purposes of appeal.”). Even before

the adoption of Rule 10(c)(7), this Court required an error to be preserved on the record in

order to avoid waiver. See Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (“The rule

in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they

forget their lines, they will likely be bound forever to hold their peace.”); LaRock, 196

W. Va. 294, 316, 470 S.E.2d 613, 635 (“One of the most familiar procedural rubrics in the

administration of justice is the rule that the failure of a litigant to assert a right in the trial

court likely will result in the imposition of a procedural bar to an appeal of that issue.”

(quotations and citations omitted)); Syl. pt. 3, O’Neal v. Peake Operating Co., 185 W. Va.

28, 404 S.E.2d 420 (“‘Where objections were not shown to have been made in the trial court,

and the matters concerned were not jurisdictional in character, such objections will not be

considered on appeal.’” (citation omitted)); Syl. pt. 1, Ferguson, 148 W. Va. 742, 137 S.E.2d

206 (same).




                                                36

              Because of Ms. Trail’s failure to direct this Court to the portion of the record

containing her objection to the admission of the summary chart, we deem this issue waived.



                              G. Sufficiency of the Evidence

              Ms. Trail next argues that the trial court erred in failing to grant her motion for

acquittal because the evidence was insufficient to support the verdict of guilty. The State

contends the evidence was sufficient.



              In addressing this issue, we are mindful that

                      [t]he function of an appellate court when reviewing the
              sufficiency of the evidence to support a criminal conviction is to
              examine the evidence admitted at trial to determine whether
              such evidence, if believed, is sufficient to convince a reasonable
              person of the defendant’s guilt beyond a reasonable doubt.
              Thus, the relevant inquiry is whether, after viewing the evidence
              in the light most favorable to the prosecution, any rational trier
              of fact could have found the essential elements of the crime
              proved beyond a reasonable doubt.

Syl. pt. 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). The trial court bore a

similar duty in addressing Ms. Trail’s challenge to the sufficiency of the evidence.

                     When a criminal defendant undertakes a sufficiency
              challenge, all the evidence, direct and circumstantial, must be
              viewed from the prosecutor’s coign of vantage, and the viewer
              must accept all reasonable inferences from it that are consistent
              with the verdict. This rule requires the trial court judge to
              resolve all evidentiary conflicts and credibility questions in the
              prosecution’s favor; moreover, as among competing inferences
              of which two or more are plausible, the judge must choose the

                                              37

              inference that best fits the prosecution’s theory of guilt.

Syl. pt. 2, LaRock, 196 W. Va. 294, 470 S.E.2d 613. Finally, we observe the cumbrous task

undertaken by a criminal defendant attempting to challenge the sufficiency of the evidence:

                     A criminal defendant challenging the sufficiency of the
              evidence to support a conviction takes on a heavy burden. An
              appellate court must review all the evidence, whether direct or
              circumstantial, in the light most favorable to the prosecution and
              must credit all inferences and credibility assessments that the
              jury might have drawn in favor of the prosecution. The
              evidence need not be inconsistent with every conclusion save
              that of guilt so long as the jury can find guilt beyond a
              reasonable doubt. Credibility determinations are for a jury and
              not an appellate court. Finally, a jury verdict should be set aside
              only when the record contains no evidence, regardless of how it
              is weighed, from which the jury could find guilt beyond a
              reasonable doubt. To the extent that our prior cases are
              inconsistent, they are expressly overruled.

Syl. pt. 3, Guthrie, 194 W. Va. 657, 461 S.E.2d 163.



              Upon a careful review of Ms. Trail’s argument it becomes apparent that she

does not challenge the absence of evidence to establish her guilt. Rather, she challenges the

weight afforded that evidence by the jury. Her primary complaints are that the jury accepted

the testimony of Ms. Trail’s nephew, Gregory Whittington, in spite of strong evidence

challenging his veracity, and the jury accepted the State’s theory that her crime was

motivated by her desire to obtain the proceeds of the various insurance policies covering her

husband’s life. The circuit court rejected this argument finding there was sufficient evidence

to support the jury’s verdict. The circuit court commented:

                                              38

              “[T]he Court’s statement of a trial jury verdict’s import, and the
              trial jury’s inferences drawn in support of its verdict, as an
              element of the judicially created public policy of the State of
              West Virginia[,] cannot be overestimated. . . . [O]ur Court has
              continually reinforced its faith in, and support of, the ability and
              competence of a trial jury in this State to hear evidence from the
              witness box; to receive the Court’s instruction of law; to analyze
              factual and legal issues; and render sound verdicts, based upon
              those facts and the legal principles that it determines are
              controlling.

We find no error.



              Ms. Trail asks this Court to consider the sterile appellate record and decide that

the jury made improper credibility determinations. Such a review is not a legitimate function

of this Court. See Syl. pt. 2, State v. Martin, 224 W. Va. 577, 687 S.E.2d 360 (2009) (“The

jury is the trier of the facts and in performing that duty it is the sole judge as to the weight

of the evidence and the credibility of the witnesses.” (internal quotations and citation

omitted)); Guthrie, 194 W. Va. 657, 669, 461 S.E.2d 163, 175 (“It is well established that

appellate review is not a device for this Court to replace a jury’s finding with our own

conclusion. On review, we will not weigh evidence or determine credibility.”); Id., 194

W. Va. at 670 n.9, 461 S.E.2d at 176 n.9 (“An appellate court may not decide the credibility

of witnesses or weigh evidence as that is the exclusive function and task of the trier of

fact. . . . It is for the jury to decide which witnesses to believe or disbelieve. Once the jury

has spoken, this Court may not review the credibility of the witnesses.”); Syl. pt. 2, State v.

Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967) (“The jury is the trier of the facts and in

                                              39

performing that duty it is the sole judge as to the weight of the evidence and the credibility

of the witnesses.”); Syl. pt. 1, State v. Harlow, 137 W. Va. 251, 71 S.E.2d 330 (1952) (“In

the trial of a criminal prosecution, where guilt or innocence depends on conflicting evidence,

the weight and credibility of the testimony of any witness is for jury determination.”).



              In this case the jury heard Gregory Whittington testify that Ms. Trail hired him

to murder her husband. The jury also was presented with ample evidence of Gregory

Whittington’s propensity to lie. It was the jury’s role to weigh this evidence and to decide

the credibility of Gregory Whittington’s testimony. It was also for the jury to weigh the

evidence of the insurance policies as a source of motive.30 The jury heard the conflicting

testimony and ultimately found Ms. Trail guilty of murder in the first degree. This Court will

not disturb weight and credibility determinations made by the jury.31

              30
                We note that motive is not an element of the offense of murder. See State v.
McKinley, 234 W. Va. 143, 156, 764 S.E.2d 303, 316 (2014) (“It has been recognized that,
‘[w]hile proof of motive is not a required element in criminal cases, it is always relevant and
admissible to prove that the accused committed the offense.’ Franklin D. Cleckley, Louis
J. Palmer, Jr., and Robin Jean Davis, Vol. 1, Handbook on Evidence for West Virginia
Lawyers, § 404.03[2][e][iv] (2012).”); State v. Flippo, 212 W. Va. 560, 583 n.33, 575 S.E.2d
170, 193 n.33 (2002) (“This Court has previously observed that while it is permissible to
prove the motive which prompted the commission of crime, the failure of the State to
discover and prove any motive therefor is no evidence of the innocence of the accused.
Motive constitutes no element of the crime itself.” (internal quotations and citations
omitted)); State v. Lemon, 84 W. Va. 25, 33, 99 S.E. 263, 267 (1919) (“While evidence to
prove a motive for the killing is admissible, it is not an essential element of the crime of
murder, and there is no duty on the State to prove it.”).
              31
                   Ms. Trail’s final assignment alleges cumulative error. Because we have
                                                                             (continued...)

                                              40

                                             IV.


                                      CONCLUSION


              For the reasons set out in the body of this opinion, the orders of the Circuit

Court of Lincoln County upholding Ms. Trail’s conviction of murder in the first degree and

imposing a sentence of life in prison without mercy are affirmed.



                                                                                   Affirmed.




              31
                (...continued)
found no errors, this assignment need not be addressed. See, e.g., State v. Knuckles, 196
W. Va. 416, 426, 473 S.E.2d 131, 141 (1996) (per curiam) (“[B]ecause we find that there is
no error in this case, the cumulative error doctrine has no application. Cumulative error
analysis should evaluate only the effect of matters determined to be error, not the cumulative
effect of non-errors.”).

                                             41
