IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2023 Term

_____________________

No. 22-0219

_____________________

STATE OF WEST VIRGINIA,

Plaintiff Below, Respondent,

v.

SHANE ERIC HAGERMAN,

Defendant Below, Petitioner.

___________________________________________________________

Appeal from the Circuit Court of McDowell County

Honorable Rudolph J. Murensky, II, Judge

Criminal Action No. CC-27-2019-F-11

AFFIRMED

_________________________________________________________

Submitted: September 13, 2023

Filed: November 9, 2023

Gloria M. Stephens, Esq.

Welch, West Virginia

Attorney for Petitioner

 

Patrick Morrisey, Esq.

Attorney General

Andrea Nease Proper, Esq.

Assistant Attorney General

Charleston, West Virginia

Attorneys for Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICES ARMSTEAD and BUNN concur and reserve the right to file concurring 

opinions.

FILED

November 9, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “‘“‘Although the ruling of a trial court in granting or denying a motion 

for a new trial is entitled to great respect and weight, the trial court’s ruling will be reversed 

on appeal when it is clear that the trial court has acted under some misapprehension of the 

law or the evidence.’ Syl. pt. 4, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 

S.E.2d 218 (1976).” Syllabus point 1, Andrews v. Reynolds Memorial Hospital, Inc., 201 

W.Va. 624, 499 S.E.2d 846 (1997).’ Syllabus point 1, Lively v. Rufus, 207 W.Va. 436, 533 

S.E.2d 662 (2000).” Syl. Pt. 1, State v. White, 228 W. Va. 530, 722 S.E.2d 566 (2011). 

2. “In reviewing challenges to findings and rulings made by a circuit 

court, we apply a two-pronged deferential standard of review. We review the rulings of the 

circuit court concerning a new trial and its conclusion as to the existence of reversible error 

under an abuse of discretion standard, and we review the circuit court’s underlying factual 

findings under a clearly erroneous standard. Questions of law are subject to a de novo 

review.” Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). 

3. “To establish a prima facie case of unconstitutional jury selection 

methods under the Sixth Amendment’s fair cross-section requirement, the defendant must 

show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; 

(2) that the representation of this group in venires from which juries are selected is not fair 

and reasonable in relation to the number of such persons in the community; and (3) that 
ii

this underrepresentation is due to systematic exclusion of the group in the jury-selection 

process.” Syl. Pt. 2, State v. Hobbs, 168 W. Va. 13, 282 S.E.2d 258 (1981). 

 

4. “Under the ‘plain error’ doctrine, ‘waiver’ of error must be 

distinguished from ‘forfeiture’ of a right. A deviation from a rule of law is error unless 

there is a waiver. When there has been a knowing and intentional relinquishment or 

abandonment of a known right, there is no error and the inquiry as to the effect of a 

deviation from the rule of law need not be determined. By contrast, mere forfeiture of a 

right—the failure to make timely assertion of the right—does not extinguish the error. In 

such a circumstance, it is necessary to continue the inquiry and to determine whether the 

error is ‘plain.’ To be ‘plain,’ the error must be ‘clear’ or ‘obvious.’” Syl. Pt. 8, State v. 

Miller, 194 W. Va. 3, 459 S.E.2d. 114 (1995). 

5. “The first inquiry under the ‘plain error rule’ codified in Rule 52(a) of 

the West Virginia Rules of Criminal Procedure is whether ‘error’ in fact has been 

committed. Deviation from a rule of law is error unless it is waived. Waiver is the 

intentional relinquishment or abandonment of a known right. When there has been such a 

knowing waiver, there is no error and the inquiry as to the effect of the deviation from a 

rule of law need not be determined.” Syl. Pt. 6, State v. Crabtree, 198 W. Va. 620, 482 

S.E.2d 605 (1996).
1

HUTCHISON, Justice:

The petitioner, Shane Eric Hagerman, appeals the March 5, 2022, order of 

the Circuit Court of McDowell County sentencing him to a determinate term of thirty years 

in prison for his second-degree murder conviction. In this appeal, the petitioner contends 

that the circuit court erred by denying his motion for a new trial. He argues that the circuit 

court violated his right to a randomly selected jury representing a fair cross-section of the 

community by excluding certain individuals from the jury panel based on the geographic 

location of their residences. In addition, he asserts that the circuit court committed plain 

error when it instructed the jury on the offense of voluntary manslaughter. For the reasons 

set forth below, we find no error and, therefore, affirm the circuit court’s order. 

I. Facts and Procedural Background

It is undisputed that the petitioner used a shotgun to kill McKinley Addair, 

his former brother-in-law, on November 22, 2018. The record indicates that the two were 

friends, and on the night of the shooting, they were drinking at the petitioner’s home with 

the petitioner’s girlfriend, Hannah Muncy, and another male friend, Lee Tessner. 

According to Ms. Muncy and Mr. Tessner, both the petitioner and victim were intoxicated 

when they got into an argument that ultimately led to Mr. Addair’s death. 

On February 21, 2019, the petitioner was indicted on the felony charge of 

first-degree murder. At his trial, the petitioner claimed that he shot the victim in selfdefense. Following three days of testimony, the jury returned a verdict convicting the
2

petitioner of second-degree murder, a lesser included offense of first-degree murder. 

Thereafter, the petitioner discovered that six individuals who reside in or near the 

community of Bradshaw, West Virginia, where the shooting occurred, had been selected 

for the jury panel (hereinafter “the Bradshaw jurors”), but the circuit court had directed the 

circuit clerk not to call them.

1

 After obtaining this information, the petitioner filed a motion 

for a new trial, asserting that the circuit court violated his constitutional and statutory rights 

by excluding the Bradshaw jurors from the jury panel.

2

The trial court held a hearing on the petitioner’s motion on December 13, 

2021, and by order entered February 22, 2022, denied him a new trial. The circuit court 

rejected the petitioner’s claim that it had erred by excluding the Bradshaw jurors from the 

jury panel. The court explained in its order:

The Defendant’s first reason in support of his motion 

[for a new trial] is that the Court unduly attempted to influence 

the composition of the jury. This is false. No juror was 

excluded from the case on account of race, color, religion, sex, 

national origin, economic status or being a qualified individual 

with a disability. See W.Va. Code 51-1-2. The jury was 

selected at random from a fair cross section of the population 

of the area served by the court, which is McDowell County. 

See W.Va. Code 52-1-1. 

After the Circuit Clerk’s Office selected the initial set 

of jurors for the case, the Court inquired of the Circuit Clerk’s 

1 The record does not indicate how this information was relayed to the petitioner. 

2 While the petitioner also filed a motion for acquittal and asserted that the trial court 

had committed other errors at trial, he has not appealed the circuit court’s rulings on those 

issues. 
3

Office if any of the jurors lived in the community or 

neighborhood of the alleged crime. The Court was advised that 

six jurors lived in the community or neighborhood of the 

alleged crime. The Court advised the clerk’s office not to call 

them on the initial panel, hoping that the initial panel would be 

sufficient to sit a jury. Although six from the community or 

neighborhood were not notified to report, other jurors from 

surrounding communities were notified to report. . . .

. . . . 

There was no systemic disqualification of jurors. The 

alleged crime occurred in a small tight knit community of 

approximately two hundred fifty people. The people in this 

community generally know each other and would be aware of 

the local knowledge or gossip of a shooting death in their 

community. The Court would be suspect of any juror who 

didn’t know the parties involved or have some knowledge of 

the facts of this case.3

 

3 The circuit court also noted that aside from disqualification based on prior 

knowledge of the crime and/or persons involved, the six jurors would have likely been 

removed from the jury panel for cause for other reasons. In that regard, the Court stated:

In reviewing these six jurors it is doubtful that any of 

these would have been allowed to serve on the jury. 

One of the six jurors is the father of the Prosecuting 

Attorney, who is prosecuting the case. 

A second juror works for 911, whose supervisor was a 

witness. 

A third juror works for Welch Community Hospital, 

who had an employee subpoenaed to testify. 

A fourth juror is a retired employee from the 

Department of Health and Human Resources, who appeared in 

court on behalf of the DHHR, represented by the McDowell 

County Prosecuting Attorney’s Office. 
4

(Footnote added). After the petitioner’s motion for a new trial was denied, the circuit court 

held petitioner’s sentencing hearing and, by order entered on March 5, 2022, sentenced 

him to a determinate term of thirty years in prison. This appeal followed. 

II. Standard of Review

In this appeal, the petitioner contends that the circuit court erred by denying 

his motion for a new trial. This Court has held:

“‘“Although the ruling of a trial court in granting or 

denying a motion for a new trial is entitled to great respect and 

weight, the trial court’s ruling will be reversed on appeal when 

it is clear that the trial court has acted under some 

misapprehension of the law or the evidence.” Syl. pt. 4, 

Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 

218 (1976).’ Syllabus point 1, Andrews v. Reynolds Memorial 

Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).”

Syllabus point 1, Lively v. Rufus, 207 W.Va. 436, 533 S.E.2d 

662 (2000).

Syl. Pt. 1, State v. White, 228 W. Va. 530, 722 S.E.2d 566 (2011). In addition, we have 

explained:

In reviewing challenges to findings and rulings made by 

a circuit court, we apply a two-pronged deferential standard of 

review. We review the rulings of the circuit court concerning a 

The fifth has a relative involved in a CPS case, in which 

the McDowell County Prosecuting Attorney’s Office is 

involved. 

Juror six was part of an alleged sexual assault 

investigation, where she complained that she was a victim and 

was or is still part of an investigation in which the McDowell 

County Prosecuting Attorney’s office is a part thereof. 
5

new trial and its conclusion as to the existence of reversible 

error under an abuse of discretion standard, and we review the 

circuit court’s underlying factual findings under a clearly 

erroneous standard. Questions of law are subject to a de novo 

review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). With these standards 

in mind, we consider the issues raised by the petitioner. 

III. Discussion

The petitioner first contends that the circuit court’s exclusion of the 

Bradshaw jurors from the jury panel violated his right to a randomly selected jury 

representing a fair cross-section of the community as guaranteed by the Sixth Amendment

of the United States Constitution,

4 Article III, § 14 of the West Virginia Constitution5 and 

West Virginia Code § 52-1-1 (1986).

6

 It has long been recognized that “‘the selection of 

4 The Sixth Amendment of the United States Constitution provides, in pertinent part: 

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, 

by an impartial jury of the State and district wherein the crime shall have been committed, 

which district shall have been previously ascertained by law[.]”

5 Under Article III, § 14 of the Constitution of West Virginia, “Trials of crimes, and 

misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, 

without reasonable delay, and in the county where the alleged offence was committed, 

unless upon petition of the accused, and for good cause shown, it is removed to some other 

county.” 

6 West Virginia § 52-1-1 provides:

It is the policy of this State that all persons selected for 

jury service be selected at random from a fair cross section of 

the population of the area served by the court, and that all 

citizens have the opportunity in accordance with this article to 
6

a petit jury from a representative cross section of the community is an essential component 

of the Sixth Amendment right to a jury trial.’” State v. Hobbs, 168 W. Va. 13, 23, 282 

S.E.2d 258, 265 (1981), quoting Taylor v. Louisiana, 419 U.S. 522, 528, 95 S. Ct. 692, 

697, 42 L.Ed.2d 690, 697 (1975). In that regard, it has been observed that, 

Community participation in the administration of the 

criminal law . . . is not only consistent with our democratic 

heritage but is also critical to public confidence in the fairness 

of the criminal justice system. Restricting jury service to only 

special groups or excluding identifiable segments playing 

major roles in the community cannot be squared with the 

constitutional concept of jury trial. “Trial by jury presupposes 

a jury drawn from a pool broadly representative of the 

community as well as impartial in a specific case . . . (T)he 

broad representative character of the jury should be

maintained, partly as assurance of a diffused impartiality and 

partly because sharing in the administration of justice is a 

phase of civic responsibility.” (Citations omitted). 

Id. at 24, 282 S.E.2d at 265-66, quoting Taylor, 419 U.S. at 530-31, 95 S. Ct. at 697-98, 42 

L.E.2d at 698. 

Upon review, we find no merit to the petitioner’s contention that the circuit 

court’s exclusion of the Bradshaw jurors from the initial jury panel because they lived in 

the vicinity of where the alleged murder occurred denied him his right to a randomly 

selected jury composed of a fair cross section of the community. In Hobbs, this Court 

determined that “[t]he question of [a] constitutionally impermissible exclusion must be 

examined on a case-by-case basis considering the particular selection method chosen and 

be considered for jury service and an obligation to serve as 

jurors when summoned for that purpose.
7

the size and characteristics of the excluded group and of the local population.” Id. at 30-

31, 282 S.E.2d at 269. In that case, two codefendants convicted of making a false return 

of the result of votes cast for a candidate in an election argued that they were denied a fair 

trial because their jury was selected from the Logan County personal property tax rolls. Id.

at 22, 282 S.E.2d at 264-65. In analyzing whether that jury selection method violated their 

Sixth Amendment right to a jury representative of a cross section of the community, this 

Court held:

To establish a prima facie case of unconstitutional jury 

selection methods under the Sixth Amendment’s fair crosssection requirement, the defendant must show (1) that the 

group alleged to be excluded is a “distinctive” group in the 

community; (2) that the representation of this group in venires 

from which juries are selected is not fair and reasonable in 

relation to the number of such persons in the community; and 

(3) that this underrepresentation is due to systematic exclusion 

of the group in the jury-selection process.

 

Hobbs, 168 W. Va. at 13, 282 S.E.2d at 260, syl. pt. 2. 

Applying the Hobbs test to this case, we find that petitioner is unable to show 

that the Bradshaw jurors are a “distinctive” or “cognizable” group in the community. As 

this Court observed in Hobbs:

A group to be “cognizable” for present purposes must 

have a definite composition. That is, there must be some factor 

which defines and limits the group. A cognizable group is not 

one whose membership shifts from day to day or whose 

members can be arbitrarily selected. Secondly, the group must 

have cohesion. There must be a common thread which runs 

through the group, a basic similarity in attitudes or ideas or 

experience which is present in members of the group and which 

cannot be adequately represented if the group is excluded from 
8

the jury selection process. Finally, there must be a possibility 

that exclusion of the group will result in partiality or bias on 

the part of juries hearing cases in which group members are 

involved. That is, the group must have a community of interest 

which cannot be adequately protected by the rest of the 

populace.

Id. at 27, 282 S.E.2d at 267, quoting United States v. Guzman, 337 F.Supp. 140, 143-144, 

(S.D.N.Y.), aff’d, 468 F.2d 1245 (2nd Cir. 1972), cert. denied, 410 U.S. 937, 93 S. Ct. 

1397, 35 L.Ed.2d 602 (1973). While it is doubtful that any of the cognizable criteria can 

be met in this case, it certainly cannot be said that the Bradshaw jurors have a “community 

of interest which cannot be adequately protected by the rest of the populace.” 

As the circuit court explained during the hearing on the petitioner’s motion 

for a new trial, ‘the reason [the Bradshaw jurors] weren’t called initially is because these 

people lived in the immediate neighborhood of where [the alleged crime] took place. And 

[these] people . . . either knew the Defendant, good or bad, knew McKinley Addair, good 

or bad, or heard of this situation.” In other words, this group of potential jurors was

excluded because of the circuit court’s belief that they were not qualified to serve on the 

jury due to their prior knowledge of the alleged crime and/or the persons involved. The 

exclusion of these individuals from the jury panel for this reason does not make them a 

group with a “community of interest” that cannot be protected by other jurors. Indeed, it 

is this group’s shared “interest” that renders them unqualified jurors. Simply stated, the 

only basis for excluding the Bradshaw jurors was the fact that they were the petitioner’s 

neighbors and likely had knowledge of the petitioner, his victim, and the circumstances 
9

surrounding the alleged crime. “The object of jury selection is to secure jurors who are not 

only free from improper prejudice and bias, but who are also free from the suspicion of 

improper prejudice or bias.” O’Dell v. Miller, 211 W. Va. 285, 288, 565 S.E.2d 407, 410 

(2002). Consequently, it cannot be concluded that jurors who may have formed an opinion 

regarding a defendant’s culpability as a result of their geographical proximity to the alleged 

crime are a “cognizable” group for purposes of establishing a prima facie case of an 

unconstitutional jury selection method. Accordingly, our fair cross-section analysis does 

not need to proceed further. “[T]he lack of cognizability is dispositive of this assignment 

of error.” Hobbs, 168 W. Va. at 28, 282 S.E.2d at 268. 

The petitioner further argues that the circuit court failed to comply with the 

juror selection procedures outlined in West Virginia Code §§ 52-1-1 to -26 and that the 

exclusion of the Bradshaw jurors resulted in a jury panel that was no longer random as 

required by West Virginia Code § 52-1-1. In support of his argument, the petitioner relies 

upon syllabus point four of State ex rel. Stanley v. Sine, 215 W. Va. 100, 594 S.E.2d 314 

(2004), which holds that, 

A circuit court judge adopting rules governing the 

selection of prospective jurors pursuant to W. Va. Code § 52-

1-7(a) (1993) (Repl. Vol. 2000)7 must comply with the public 

7 West Virginia Code § 52-1-7(a) provides: 

The chief judge of the circuit, or the judge in a single 

judge circuit, shall provide by order rules relating to the 

random drawing by the clerk of panels from the jury wheel or 

jury box for juries in the circuit and magistrate courts. The rules 
10

policy and stated requirements of the statutory jury selection 

procedures set forth in W. Va. Code § 52-1-1, et seq.

Sine, 215 W. Va. at 101, 594 S.E.2d at 315, syl. pt. 4 (footnote added). Upon review, we 

find the petitioner’s reliance upon Sine is misplaced. 

In Sine, a public defender sought a writ of prohibition from this Court to 

prevent a circuit court from selecting prospective jurors in sequential alphabetical order 

from the court’s jury panel list. Upon consideration of the relevant statutory provisions, it 

was determined that “the solitary goal of the jury selection statutes is to ensure ‘that all 

persons selected for jury service be selected at random.’” Id. at 107, 595 S.E.2d at 321, 

quoting W. Va. Code § 52-1-1. This Court then found that selecting prospective jurors in 

sequential alphabetical order was an obvious contravention of this stated legislative 

purpose and, thus, a violation of the statutory jury selection procedures. Id. 

Here, the petitioner has not presented any evidence to show that the members

of his jury panel were not randomly selected. To the contrary, the record shows that the 

jurors were chosen from the entire population of eligible McDowell County residents in 

accordance with the jury selection procedures set forth in West Virginia Code § 52-1-5 

may allow for the drawing of panels at any time. Upon receipt 

of the direction and in the manner prescribed by the court, the 

clerk shall publicly draw at random from the jury wheel or jury 

box the number of jurors specified.
11

(1993)8 and West Virginia Code § 52-1-7.9

 The record further shows that the circuit clerk 

was directed to not include the Bradshaw jurors in the initial panel called for voir dire only 

after the jury panel had been drawn. Consequently, it cannot be concluded that the jury 

panel was not randomly selected. 

While we find no merit to the petitioner’s arguments, we wish to make clear

that we in no way condone or approve of the circuit court’s decision to sua sponte direct 

the circuit clerk to not call the Bradshaw jurors as part of the initial jury panel without any

notification to the parties. Unquestionably, the better course of action would have been to 

remove any jurors disqualified for cause from the jury panel as part of the voir dire process. 

However, as the circuit court made clear, the Bradshaw jurors were not removed from the 

jury panel entirely but rather were only excluded from the initial panel called and would 

have been included in the second panel had one been needed. As we recognized in Sine, 

circuit court judges are afforded a certain amount of discretion in the jury selection process. 

215 W. Va. at 107, 594 S.E.2d at 321. Moreover, “a trial court is entitled to rely upon its 

self-evaluation of allegedly biased jurors in determining actual juror bias.” State v. Miller, 

197 W. Va. 588, 605, 476 S.E.2d 535, 552 (1996); see also O’Dell v. Miller, 211 W. Va. 

285, 288, 565 S.E.2d 407, 410 (2002) (“The determination of whether a prospective juror 

8 West Virginia Code § 52-1-5(a) directs the circuit clerk to “compile and maintain 

a master list of residents of the county from which prospective jurors are to be chosen.” 

9 See note 7, supra.
12

should be excused to avoid bias or prejudice in the jury panel is a matter within the sound 

discretion of the trial judge.”).

Critically, the petitioner has not come forward with any evidence to show 

that he did not receive a fair trial. This Court has long recognized that under our federal 

and state constitutions, “a criminal defendant is entitled to insist upon a jury ‘composed of 

persons who have no interest in the case, have neither formed nor expressed any opinion, 

who are free from bias or prejudice, and stand indifferent in the case.’” State v. Ashcraft, 

172 W. Va. 640, 647, 309 S.E.2d 600, 607 (1983) quoting State v. McMillion, 104 W. Va. 

1, 8, 138 S.E. 732, 735 (1927), overruled on other grounds by State v. Harden, 223 W. Va. 

796, 679 S.E.2d 628 (2009); see also State v. Preacher, 167 W. Va. 540, 552, 280 S.E.2d 

559, 569 (1981) (“[a] fair trial . . . requires a fair and impartial jury.”). Because the

petitioner has alleged no facts to indicate that any of the jurors who sat on his jury were

biased and, thus, prejudiced his right to fair trial, we find no violation of his constitutional

and statutory rights.

 

Next, the petitioner asks us to apply the plain error doctrine to the circuit 

court’s instruction to the jury on the offense of voluntary manslaughter. The plain error 

doctrine must be invoked when no objection was made below to the instruction being 

challenged on appeal. As Rule 30 of the West Virginia Rules of Criminal Procedure

provides, in pertinent part: 
13

No party may assign as error the giving or the refusal to 

give an instruction or the giving of any portion of the charge 

unless that party objects thereto before the arguments to the 

jury are begun, stating distinctly the matter to which that party 

objects and the grounds of the objection; but the court or any 

appellate court may, in the interest of justice, notice plain error 

in the giving or refusal to give an instruction, whether or not it 

has been made the subject of objection.

See also W. Va. R. Crim. Proc. 52(b) (“Plain errors or defects affecting substantial rights 

may be noticed although they were not brought to the attention of the court.”). Here, the 

record reflects that not only did the petitioner, by counsel, fail to object to the circuit court’s 

voluntary manslaughter instruction, but he specifically indicated that he had no objection. 

We have held that, 

Under the “plain error” doctrine, “waiver” of error must 

be distinguished from “forfeiture” of a right. A deviation from 

a rule of law is error unless there is a waiver. When there has 

been a knowing and intentional relinquishment or 

abandonment of a known right, there is no error and the inquiry 

as to the effect of a deviation from the rule of law need not be 

determined. By contrast, mere forfeiture of a right—the failure 

to make timely assertion of the right—does not extinguish the 

error. In such a circumstance, it is necessary to continue the 

inquiry and to determine whether the error is “plain.” To be 

“plain,” the error must be “clear” or “obvious.”

Syl. Pt. 8, State v. Miller, 194 W. Va. 3, 459 S.E.2d. 114 (1995). In other words, a 

defendant who not only fails to object to a circuit court’s ruling but also affirmatively states 

on the record that he or she has no objection cannot assert plain error on appeal. 

For instance, in Miller, the defendant asserted plain error because the trial 

court did not give an instruction on self-defense. On appeal, the record showed that not 
14

only did the defendant never ask for a self-defense instruction or object to the lack of such 

an instruction, but the defendant’s counsel “explicitly stated that he was satisfied with the 

instructions as proposed by the court and that he had no objection to any portion of the jury 

charge.” Id.at 17, 459 S.E.2d at 128. Given these facts, this Court found that the defendant 

voluntarily waived any right she had to have the jury instructed on self-defense and rejected 

her plain error argument. Id. at 19, 459 S.E.2d at 130. 

This Court also rejected a plain error argument for the same reason in State 

v. Crabtree, 198 W. Va. 620, 482 S.E.2d 605 (1996). In that case, the defendant asserted 

that his constitutional right to be present at all critical stages of his criminal trial was 

violated when the trial judge entered the jury room during deliberations on two occasions 

to respond questions from the jurors without making a recording of the proceedings. Id. at 

628, 482 S.E.2d at 613. The record showed that, in both instances, the judge asked the 

defendant and the State if there was any objection to him entering the jury room. Both 

stated they had no objection. Id. Upon review, this Court reiterated that,

The first inquiry under the “plain error rule” codified in 

Rule 52(a) of the West Virginia Rules of Criminal Procedure 

is whether “error” in fact has been committed. Deviation from 

a rule of law is error unless it is waived. Waiver is the 

intentional relinquishment or abandonment of a known right. 

When there has been such a knowing waiver, there is no error 

and the inquiry as to the effect of the deviation from a rule of 

law need not be determined.

Crabtree, 198 W.Va. at 623, 482 S.E.2d at 608, syl. pt. 6. Simply stated, “when a right is 

waived, it is not reviewable even for plain error.” Id. at 631, 482 S.E.2d at 616. This Court
15

found in Crabtree that the defendant’s affirmative approval of the trial judge’s request to 

enter the jury room to respond to juror questions without his presence was “a perfect case 

of waiver” and that our analysis “need go no further.” Id. The same is true here. 

 In this case, the record shows that when the parties met with the trial judge 

to discuss the court’s jury charge, the following exchange took place:

THE COURT: Okay. So there’s no objection from the State. 

Okay. [Defense counsel?]

[DEFENDANT’S COUNSEL]: I have no objections, Your 

Honor. 

THE COURT: To the charge?

[DEFENDANT’S COUNSEL]: No. 

While the record shows that the petitioner’s counsel did request some additional 

instructions, none of them related to voluntary manslaughter. Therefore, given that the 

petitioner unequivocally indicated that he had no objections to the circuit court’s jury 

charge, we find that he voluntarily waived any objection to the voluntary manslaughter 

instruction included therein. Accordingly, pursuant to Miller and Crabtree, there was no 

error, and our analysis must end here.

 
16

IV. Conclusion

For the foregoing reasons, the March 5, 2022, order of the Circuit Court of 

McDowell County is affirmed. 

Affirmed.