State of West Virginia v. David Hunter Lewis. (Justice Bunn, concurring, joined by Justice Armstead)

No. 22-822 – State of West Virginia v. David Hunter Lewis                              FILED
                                                                                    June 2, 2025
                                                                                       released at 3:00 p.m.
                                                                                    C. CASEY FORBES, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                        OF WEST VIRGINIA


BUNN, Justice, concurring, and joined by Justice Armstead:

              I agree that under the circumstances of this case—where the State presented

widespread inadmissible evidence regarding the victim—Mr. Lewis demonstrated plain

error requiring this Court to vacate his convictions and remand for a new trial. I write

separately to emphasize two principles. First, the majority opinion fails to sufficiently

address that the defendant bears the significant burden of demonstrating prejudice from

any error deemed plain. Second, the majority opinion should not be read to constrain the

storytelling ability of the prosecutor in a criminal trial.



              The issue before us, essentially, is whether the circuit court plainly erred by

allowing the State to present testimony relating to the victim’s good character, as well as

the State’s references to the same in its opening statement and closing argument. Because

Mr. Lewis failed to object, except in two minor instances, the majority correctly reviewed

Mr. Lewis’s assignment of error pursuant to the plain error doctrine.



              It is well established that, “To trigger application of the ‘plain error’ doctrine,

there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and

(4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.”

Syl. pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). I agree with the majority’s

                                                1
conclusion that there was an error that was plain, affected Mr. Lewis’s substantial rights,

and seriously affected the judicial proceedings. I write separately to highlight that under

the third prong in a plain error analysis—that the plain error affected the defendant’s

substantial rights—the defendant bears the burden of demonstrating prejudice. This Court

has consistently declared that a defendant who fails to object to a perceived error has the

burden to demonstrate that the error prejudiced the defendant:

                     Assuming that an error is “plain,” the inquiry must
              proceed to its last step and a determination made as to whether
              it affects the substantial rights of the defendant. To affect
              substantial rights means the error was prejudicial. It must have
              affected the outcome of the proceedings in the circuit court,
              and the defendant rather than the prosecutor bears the burden
              of persuasion with respect to prejudice.

Syl pt. 9, Miller, 194 W. Va. 3, 459 S.E.2d 114 (emphasis added). See also State v. Todd

C., 250 W. Va. 642, 660, 906 S.E.2d 295, 313 (2023) (“Importantly, plain error review

places on the defendant the burden of proving prejudice[.]”). Furthermore, “[e]stablishing

plain error is no easy feat[.]” Todd C., 250 W. Va. at 659, 906 S.E.2d at 312.1 To show that

this plain error affected his substantial rights, Mr. Lewis must “demonstrate the jury verdict

in his . . . case was actually affected by the assigned but unobjected to error.” Syl. pt. 3, in

part, State v. Marple, 197 W. Va. 47, 475 S.E.2d 47 (1996).




              1
                Courts have referred to this burden as a heavy one. See, e.g., United States
v. Phillips, 516 F.3d 479, 487 (6th Cir. 2008) (“This is a heavy burden for [the defendant]
to bear, for ‘the plain error doctrine is to be used sparingly, only in exceptional
circumstances, and solely to avoid a miscarriage of justice.’” (quoting United States v. Cox,
957 F.2d 264, 267 (6th Cir. 1992))).
                                               2
              Here, Mr. Lewis satisfied his heavy burden by demonstrating that the error

prejudiced his substantial rights. Evidence of the victim’s good character was simply not

relevant to whether Mr. Lewis committed the crimes charged, yet it was repeatedly injected

into the trial. To the extent that the State suggests that the evidence was permissible

pursuant to Rule 404(a) of the West Virginia Rules of Evidence because, in a homicide

case a prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut

evidence that the victim was the first aggressor, that argument is meritless. Mr. Lewis

neither raised self-defense nor did he assert that “the victim was the first aggressor.” See

W. Va. R. Evid. 404(a)(2)(C). 2



              The State emphasized the victim’s good character from the very beginning

of the trial in its opening statement. The State then questioned multiple witnesses about the

victim, intentionally eliciting extensive testimony about the victim’s good character, and

then ultimately highlighted the irrelevant, impermissible evidence during its closing

argument. Simply put, the State presented an overwhelming amount of improper character

evidence about the victim. Additionally, as noted by the majority, while it is essentially

undisputed that Mr. Lewis shot and killed the victim, the State presented very limited




              2
                As the majority correctly states, “The reason for the rule is obvious:
evidence of the victim’s good character is irrelevant to the defendant’s guilt or innocence
and is almost always highly prejudicial in that it invokes sympathy for the victim and anger
toward the defendant.” Maj. Op. at 11.

                                             3
evidence of malice or Mr. Lewis’s intent.3 The critical issue for the jury to decide in this

case concerned the degree of murder. The State improperly placed the victim’s character

on the same scale as Mr. Lewis’s guilt through these repeated, improper references.

Therefore, Mr. Lewis established that his substantial rights were affected because of the

pervasive and overwhelming nature of the good character evidence, coupled with the fact

that the ultimate issue for the jury to decide was the degree of murder.



              While Mr. Lewis met his burden of establishing prejudice in this matter, I

further write separately to stress that the majority opinion should not be read to constrain a

prosecutor’s ability to tell the story necessary to presenting a case to the jury. While

prosecutors are certainly bound by the West Virginia Rules of Evidence, depending on the

circumstances of a case, a prosecutor may need to describe a victim and his or her traits,

activities, and habits, if that evidence is essential to the whole story.4 “The



              3
                However, as noted by the majority, Mr. Lewis does not challenge on appeal
the sufficiency of the evidence to support his conviction.
              4
                 See Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing
Arguments to a Jury, 37 N.Y.L. Sch. L. Rev. 55, 58 (1992) (“[A] trial lawyer has great
latitude in choosing what story [to] tell and how [to] tell it even when . . . arguing a
relatively uncomplicated case. Although the lawyer’s range of choice is circumscribed by
the evidence, by the substantive law, by procedural rules, and by the stock scripts that shape
everybody’s notions of what a closing argument should look like, lawyers nonetheless
retain the power to construct widely diverse tales beneath a superficial semblance of
sameness and conventionality.”). Cf. State v. Duong, 257 P.3d 309, 315-16 (Kan. 2011)
(“[W]e grant prosecutors considerable latitude to address the weaknesses of the defense.”);
People v. Millwee, 954 P.2d 990, 1014 (Cal. 1998) (“[T]he prosecutor is not prohibited
from identifying traits that made the victim particularly vulnerable to attack where such
facts bear on the charged crimes and are not otherwise inadmissible on their face.”); People
                                              4
prosecution . . . is entitled to fashion its own case and present a continuing, logical story to

satisfy its ultimate burden.” United States v. Basham, 789 F.3d 358, 386 (4th Cir. 2015).

This principle that the State should be permitted to prove its case by telling the jury the

complete story is often discussed by courts in the context of a defendant’s offered

stipulations, where prosecutors are generally permitted to put on evidence, rather than

relying on bare stipulations or admissions. The Supreme Court of the United States

recognized “the familiar, standard rule that the prosecution is entitled to prove its case by

evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or

admit his way out of the full evidentiary force of the case as the Government chooses to

present it.” Old Chief v. United States, 519 U.S. 172, 186-87, 117 S. Ct. 644, 653, 136

L. Ed. 2d 574 (1997).5 The prosecution’s ability to present evidence of its choice, rather

than relying on a defendant’s stipulation or admission, allows the prosecution “to present

to the jury a picture of the events relied upon,” while a “naked admission might have the

effect to rob the evidence of much of its fair and legitimate weight.” Parr v. United States,



v. Terry, 370 P.2d 985, 999 (Cal. 1962) (“[P]rosecuting attorneys are allowed a wide range
of descriptive comment . . . which are reasonably warranted by the evidence.”).
              5
                 Ultimately, the Supreme Court found that a defendant’s stipulation to a
prior criminal conviction, which was an element of the charged offense, precluded the
prosecution from offering additional evidence on this point. Old Chief v. United States, 519
U.S. 172, 191, 117 S. Ct. 644, 655, 136 L. Ed. 2d 574 (1997). However, this holding was
“limited to cases involving proof of felon status.” Id., 519 U.S. at 183 n.7, 117 S. Ct. at 651
n.7, 136 L. Ed. 2d 574. See also United States v. McCourt, 468 F.3d 1088, 1091 (8th Cir.
2006) (“[T]he Court expressly limited its holding to cases where proof of convict status is
at issue[.]” (quotations and citation omitted)).



                                               5
255 F.2d 86, 88 (5th Cir. 1958) (quotations and citation omitted), cert. denied, 358 U.S.

824, 79 S. Ct. 40, 3 L. Ed. 2d 64 (1958).6 Therefore, while I agree with the majority’s

conclusion that the State impermissibly emphasized the victim’s character in this case, I

write to remind lower courts that the State must be able to determine how to tell the story

of the case—which often includes information regarding an alleged victim—within the

bounds of the Rules of Evidence.



              For these reasons, I respectfully concur with the majority’s opinion in this

case. I am authorized to state that Justice Armstead joins me in this concurrence.




              6
                  See also United States v. Ellison, 793 F.2d 942, 949 (8th Cir. 1986)
(“Generally, the government is not bound by a defendant’s offer to stipulate to an element
of a crime. . . . The rationale for the rule is to enable the government to present to the jury
a complete picture of the events constituting the crime charged.”), cert. denied, 479 U.S.
937, 107 S. Ct. 415, 93 L. Ed. 2d 366 (1986).
                                              6