1 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent

vs.) No. 22-0079 (Wood County 19-F-255) 

Chester Robert Ulysses Lilly III, 

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Chester Robert Ulysses Lilly III appeals the Circuit Court of Wood County’s 

November 10, 2021, order sentencing him to a term of imprisonment of life in prison without the 

possibility of parole.

1 On appeal, he argues that his murder conviction should be set aside due to 

an inappropriate question by the prosecutor during petitioner’s cross-examination. Upon our 

review, we determine that oral argument is unnecessary and that a memorandum decision 

affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21. 

Petitioner appeals from his conviction for the first-degree murder of his neighbor, arguing 

that his conviction should be overturned because at trial the prosecutor improperly asked him about 

a call he made from the jail to his fiancé. Petitioner maintains that he was prejudiced by this

question because it interjected that petitioner was in jail into the proceedings.2

 

1 Petitioner appears by counsel Joseph Munoz. Respondent appears by counsel Attorney 

General Patrick Morrisey and Assistant Attorney General Gail V. Lipscomb. 

 

2

 Petitioner, who bears the burden in this criminal case, failed to include any portion of the 

trial transcript in the appendix and, therefore, did not comply with Rule 7(d)(5) of the West 

Virginia Rules of Appellate Procedure, which requires

[m]aterial excerpts from official transcripts of testimony or from documents in 

connection with a motion. Such excerpts must contain all the testimony or 

averments upon which the petitioner relies and upon which it may be reasonably 

assumed the respondent will rely. If transcript excerpts are misleading or 

unintelligible by reason of incompleteness or lack of surrounding context, the entire 

transcript must be provided[.] 

(Continued . . .) 

FILED

September 15, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

This Court has held that “[a] judgment of conviction will not be set aside because of 

improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the 

accused or result in manifest injustice.” Syl. Pt. 5, State v. Sugg, 193 W. Va. 388, 456 S.E.2d 469 

(1995). In Sugg, this Court found that a prosecutor’s comments should be examined using four 

factors:

(1) the degree to which the prosecutor’s remarks have a tendency to mislead the 

jury and to prejudice the accused; (2) whether the remarks were isolated or 

extensive; (3) absent the remarks, the strength of competent proof introduced 

to establish the guilt of the accused; and (4) whether the comments were 

deliberately placed before the jury to divert attention to extraneous matters.

Id. at 393, 456 S.E.2d at 474, Syl. Pt. 6, in part.

When the circuit court addressed petitioner’s objection, the court noted that the sole 

reference to the “jail call” appeared to be “inadvertently made, but not overly prejudicial.” 

Moreover, the trial court found that “[i]t was a very limited reference. I don’t believe it is overly 

prejudicial to the defendant and it was somewhat ambiguous, although it was, quote, a jail call, but 

no further mention was made of it, no further reference to possible incarceration.” Considering the 

Sugg factors, the “jail call” question did not have a tendency to mislead the jury or prejudice 

petitioner, as the focus of the inquiry was on the substance of the discussion between petitioner 

and his fiancé, not petitioner’s location at the time of the call. Additionally, as noted by the circuit 

court, there was only one isolated reference to “jail” during the trial. Further, there was 

overwhelming evidence introduced at trial to establish petitioner’s guilt for the charge of murder, 

absent the reference. Finally, as the circuit court noted, the question appeared to be inadvertent 

and was not deliberately asked to divert attention to extraneous matters.

3 Based upon the foregoing, 

the prosecutor’s question was not so prejudicial as to result in manifest injustice. Accordingly, 

petitioner is entitled to no relief.

For the foregoing reasons, we affirm.

Petitioner’s failure to include the trial transcripts in the appendix is especially troubling, as 

respondent sent a Rule 7(e) letter to petitioner’s counsel asking that certain items, including the 

trial transcripts, be included in the appendix. Due to respondent’s diligence in supplementing the 

appendix, this Court was able to review the transcripts and address the merits of petitioner’s 

assignment of error.

3 Petitioner argues that the improper questioning prejudiced the jury deliberations because 

the jury foreperson sent a note to the court during deliberations requesting the “audio phone call –

Lilly to [fiancé] from prison,” along with another exhibit. The court denied this request since the 

recording was not admitted into evidence. However, the fact that the jury requested this 

demonstrative exhibit for the substance of that audio phone call does not change our finding that 

petitioner’s conviction should not be set aside.
3

Affirmed.

ISSUED: September 15, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn