Dayton Scott Lister v. David Ballard, Warden, 784 S.E.2d 733

In 2006 Dayton Scott Lister was convicted of first-degree murder for shooting and killing Krystal Peterson; he acknowledged firing the fatal shot and defended on diminished capacity (alcohol and Xanax).
The trial was bifurcated; guilt phase resulted in conviction and the jury recommended no mercy in the penalty (mercy) phase; court imposed life without parole.
During trial a juror (Juror 3) reported hearing a stranger at a Dairy Mart say, “If we take a few of these out, Scoot will go free,” and Juror 3 alleged fear but stated she could remain impartial; defense moved to disqualify her and was denied.
Other juror problems occurred (one juror acquainted with a witness; another dismissed for expressing opinion that it was not first-degree murder), and the court held a Remmer hearing regarding the Dairy Mart remark.
During the mercy phase the State presented brief testimony from four witnesses (victim’s stepmother, best friend, father, and mother); Lister objected as unfairly prejudicial and challenged the lack of mercy-instruction standards.
Lister sought habeas relief in 2014 arguing (1) denial to dismiss Juror 3; (2) admission of sympathy/victim-impact witnesses; and (3) failure to give guidance/instructions on mercy. The Supreme Court of Appeals of West Virginia affirmed denial of habeas relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Juror dismissal after Dairy Mart remark	Lister: failure to remove Juror 3 denied impartial jury; private comment created presumed prejudice	State: court held Remmer hearing; juror credibly denied bias and speaker was not an interested party	No abuse of discretion; hearing and credibility finding supported denial of dismissal
Admission of victim/family testimony in mercy phase	Lister: testimony was non‑probative and unduly prejudicial under Rules 401/403	State: trial court has wide discretion in mercy-phase evidence; statute and Payne permit victim impact; limited, brief testimony was proper	No abuse of discretion; brief family testimony admissible and consistent with statute and Payne
Instruction on standards for mercy recommendation	Lister: court should have provided standards to guide jury mercy decision	State: precedent forbids instructing jury enumerating factors for mercy	Affirmed: court correctly refused such an instruction per Miller

State v. Sutphin, 195 W.Va. 551, 466 S.E.2d 402 (W. Va. 1995) (Remmer‑style hearing and standard for juror contact claims; defendant must prove prejudice)
Remmer v. United States, 347 U.S. 227 (U.S. 1954) (trial court must inquire into alleged juror contacts and hold hearing with parties present)
Payne v. Tennessee, 501 U.S. 808 (U.S. 1991) (victim‑impact evidence admissible in sentencing; not per se Eighth Amendment violation)
State v. Miller, 178 W.Va. 618, 363 S.E.2d 504 (W. Va. 1987) (instructions listing factors for jury mercy determinations should not be given)
State v. Trail, 236 W.Va. 167, 778 S.E.2d 616 (W. Va. 2015) (reaffirmed that mere opportunity to influence juror is insufficient; no presumption of prejudice absent interested‑party contact)
Smith v. Phillips, 455 U.S. 209 (U.S. 1982) (remedy for alleged juror partiality is an opportunity to prove actual bias at a hearing)