A Marion County man convicted of gunning down an 18-year-old incoming student at Fairmont State University in a racially charged case has had his appeal for a new trial denied by the state Supreme Court.

On a 3-2 vote, the Supreme Court on Tuesday refused a petition by Dayton Scott “Scooter” Lister for an appeal hearing.

Lister was found guilty of first-degree murder on April 28 last year for the shotgun murder of Krystal Lee Peterson, 18, of Stonewood.

Peterson was slain late on the night of Aug. 10, 2005. She was standing in the threshold of a narrow side entrance to an apartment house at the intersection of Locust Avenue and Lowell Street. The jury denied a mercy recommendation for Lister, meaning he is serving a life sentence without parole.

Justices Elliott Maynard and Brent Benjamin and Chief Justice Robin Davis voted to deny the appeal. Justices Larry Starcher and Joseph Albright voted to hear it, a court spokeswoman said Wednesday.

Marion County Prosecutor Patrick N. Wilson said he was happy with the high court’s decision.

“It’s another step in the process,” Wilson said Wednesday.

James B. Zimarowski, Lister’s defense lawyer, said he plans to continue appeals in state and federal courts by filing habeas corpus writs.

In his petition, among other points, Zimarowski argued that a verbal threat overheard by a juror outside the courtroom toward the end of the trial constitutes “impermissible” communication with a juror.

“Further, the juror communicated this threat to the entire jury panel thereby contaminating the entire panel,” the defense lawyer said in his petition.

While at a convenience store the night before the last day of the trial, the juror was standing in the line for the cashier. She “heard someone (behind me) say to the effect ‘there’s one of those bitch jurors if we take a few of those out, Scoot will be free,’” Zimarowski wrote.

Citing a transcript of a bench conference, the defense lawyer quoted the juror as saying she didn’t turn around and that she was “afraid for my son. I didn’t want them — I didn’t want to acknowledge that I heard them. I took off and I left.”

When Chief Judge Fred L. Fox II asked her if she could continue to sit on the jury and render a fair and impartial verdict, she replied “absolutely.”

Aggravating the situation was that there were no more alternate jurors left to take the woman juror’s place if she were dismissed, Zimarowski argues. Dismissing her would have forced a mistrial, he said.

But in his response, Wilson said the threat was anonymous and did not prejudice the juror or the jury against Lister.

The juror apparently didn’t feel the threat was credible, the prosecutor said. She reported for jury duty the next morning, he said. The juror could not identify who made the comment, he noted.

“The courtroom was open to the public, and the remark may have been made by anyone who recognized the juror, whether they knew the defendant or not,” Wilson argued.

“The mere opportunity to cause prejudice against the defendant or the state is not grounds for a new trial. The defendant should not be able to procure a mistrial every time one of his acquaintances approaches a juror on the street,” he wrote.

Peterson’s friends told the jury that Lister confronted them earlier in the evening before the fatal encounter. There were three black males and another white woman at the informal gathering.

Lister brandished a gun at one of the men and called him the n-word. He also confronted one of the women with the weapon. She fell to her knees and begged for her safety.

The apartment residents called city police to report the altercation. Shortly after police arrived, they had to leave to investigate an unrelated report of a shot being fired elsewhere in the area.

Lister then returned in his large pickup truck and fired the fatal shot from its passenger side window, the witnesses said.

Peterson’s mother recently settled a civil suit against Lister’s parents. Details of the settlement were sealed by the court, a court official said.

E-mail Bill Byrd at bbyrd@timeswv.com.

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