196 W. Va. at 299, 470 S.E.2d at 618, Syl. Pt. 4. Subsequent to LaRock, in State v. Rygh, 206 W. Va. 295, 524 S.E.2d 447 (1999), this Court found in footnote one that there is no "burden of proof relative to the mercy recommendation. Rather, the Court opined:

168 W.Va. 185, 283 S.E.2d 836. In State v. Rygh,206 W.Va. 295, 524 S.E.2d 447 (1999), we were called upon to recognize an exception to nondisclosure of juvenile records under syllabus point 1 of Van Isler.The defendant in Ryghwas prosecuted on two counts of felony-murder.

The instant case is one of first impression in asking this Court to determine whether the same high standard announced in Derrapplies also to the admission of gruesome photographs during the mercy phase of a bifurcated trial.The type of evidence admissible in the mercy phase of a bifurcated trial was set out in Syllabus point 7 of State v. McLaughlin,226 W.Va. 229, 700 S.E.2d 289 (2010), wherein this Court held: In State v. Rygh,206 W.Va. 295, 524 S.E.2d 447 (1999), we declined to address this issue because it was not properly before the Court. See Rygh,206 W.Va. at 297 n. 2, 524 S.E.2d at 449 n. 2(“During the mercy phase of the appellant's trial, the prosecution also introduced gruesome photos of the victims—also apparently without a substantive objection by appellant's counsel.

, Mr. Lister argues that a circuit court does not have wide discretion in determining the type of evidence that is admissible during the mercy phase of a trial. His argument relies mainly on a footnote in State v. Rygh, 206 W.Va. 295 , n. 1, 524 S.E.2d 447 , n. 1 (1999), which stated, "We observe that there is nothing in LaRock that creates, merely by bifurcating a murder trial, a qualitative change in or a substantive expansion of the scope or type of evidence that the prosecution may put on against a defendant—as compared to that evidence that would' be admissible in a unitary trial.” In subsequent cases decided after Rygh, including McLaughlin, Dunlap, and Trail, this Court has repeatedly stated that a circuit court has wide discretion in determining the type of evidence that is admissible during the mercy phase of a trial.

ollowing pleadings: A Motion in Limine Concerning Flight, a Motion in Limine Concerning Collateral Acts; a Motion to 'Suppress Custodial Statements; a Motion to Suppress Evidence Seized by a Warrantless Search; and a Motion in Limine Concerning the 911 Tape. On March 22, 2004, the Court ordered that the evidence that the Petitioner had a protective order against him was admissible 404(b) evidence; that the 911 audio-tape was admissible; that the firearm and shells seized during the warrantless search were in plain view and were admissible; that there is no evidence of flight in this matter; and that the Petitioner's statement to police was freely and voluntarily given. The Court deferred ruling upon the Petitioner's Motion for Bifurcation. On April 2, 2004, the Court granted the Petitioner's motion for bifurcation with no objection by the State and ordered that the trial be bifurcated into a "guilt" phase and a "mercy" phase, and tried under the procedure set forth in footnote one of State v. Rveh. 206 W.Va. 295, 524 SE2d 447,(1999). C. The Trial: Verdict/Sentencing: Guilty of Murder in the First Degree