Supreme Court of Appeals of West Virginia Reverses Murder Conviction Based on the State Introducing a "Veritable Flood of Evidence Concerning the Character of the Victim"

Similar to its federal counterpart, West Virginia Rule of Evidence 404(a) states the following:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant's same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

In other words, the prosecution cannot present evidence of the victim's good character unless (1) the defendant presents evidence of the victim's bad character; or (2) the defendant claims in a homicide case that the victim was the first aggressor. The problem for the prosecution in State v. Lewis, 2025 WL 1554294 (W.Va. 2025), was that neither of these triggers transpired, leading to the defendant's conviction being reversed. 

In Lewis, David Hunter Lewis was convicted of second-degree murder and use of a firearm during the commission of a felony in connection with the death of Dylan Harr. At trial, the prosecution presented a plethora of evidence of Harr's good character, prompting Lewis's appeal.

In response, the State claimed that the door was opened to this evidence by the defense claiming that Harr was the first aggressor, but the Supreme Court of Appeals of West Virginia turned this argument aside as follows:

In this case, the State attempts to justify the admission of the character evidence by claiming that the petitioner's defense was self-defense, i.e., that the victim was the aggressor in what transpired between the two. The record does not bear out this assertion. The petitioner did not mention self-defense in his opening statement; did not mention it in his closing argument; and did not request that the jury be given a self-defense instruction. His defense was, at all times, that the State's evidence was insufficient to prove the shooting was anything other than an accident because there was no testimony as to what (if anything) was said after the victim put his arm around the petitioner's shoulders.10 Further, although defense counsel asked both of the eyewitnesses on cross-examination whether the victim's gesture had been “forceful” or “sudden” – to which both responded in the negative, which was the end of the matter – it is a giant step too far to find that the petitioner thereby raised a self-defense claim. Finally, it is another giant step too far to claim that evidence and argument that the victim had “an instant and immediate impact on those that he met,” was a “significant contributor to our community,” was “mature already beyond his years,” was “hardworking,” and was an “incredible father” who left behind a young son who would never remember his loving father, falls within Rule 404(a)(2)(C) as evidence and argument concerning the victim's reputation for peacefulness. And in any event, it will be recalled that the State discussed the victim's character at great length in its opening statement, in violation of the rule clearly set forth in Neuman that “[i]t is improper for the prosecution to offer evidence of the victim's peacefulness until after the defense has offered evidence which either attacks a pertinent character trait of the victim or tends to show that the victim was the first aggressor.”...

The court then found this error was reversible because:

-the State "introduced a veritable flood of evidence concerning the character of the victim;"

-"the State's strategy in encouraging the jury to compare the character of the petitioner, who was depicted as a moocher and a thief, with the character of the victim, who was depicted as a veritable saint whose death was a loss to the entire community – posed a significant threat to the jury's ability to fairly and impartially determine the guilt or innocence of the petitioner."

-"the State opened the character floodgates in its opening statement, before defense counsel had a chance to speak a word, let alone question a witness. Thereafter, the State asked its witnesses dozens of questions designed to elicit sympathy for the victim – a good person, a goofy guy, a great friend, a funny guy, a hard worker – and sympathy for his orphaned child, left with no memories of his loving, devoted father."

-CM