Lister v. Ballard

• Decision Date: 02 March 2016
• Docket Number: No. 15–0028.,15–0028.
• Citation: 784 S.E.2d 733
• Court: West Virginia Supreme Court
• Parties: Dayton Scott LISTER, Petitioner v. David BALLARD, Warden, Mount Olive Correctional Complex, Respondent.

784 S.E.2d 733

Dayton Scott LISTER, Petitioner

v.David BALLARD, Warden, Mount Olive Correctional Complex, Respondent.

No. 15–0028.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 23, 2016.

Decided March 2, 2016.

Lonnie C. Simmons, Esq., DiTrapano, Barrett, DiPiero, McGinley & Simmons, PLLC, Charleston, WV, for the Petitioner.

Patrick Morrisey, Attorney General, David A. Stackpole, Assistant Attorney General, Charleston, WV, for the Respondent.

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 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.

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 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 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.

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.

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

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