# State of West Virginia v. Shane Eric Hagerman

> West Virginia Supreme Court · November 9, 2023

URL: https://www.frixlaw.com/law-library/cases/9896249

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** November 9, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Felony (non-Death Penalty)
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2023 Term
FILED
November 9, 2023
_____________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 22-0219 OF WEST VIRGINIA
_____________________

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. Patrick Morrisey, Esq.
Welch, West Virginia Attorney General
Attorney for Petitioner 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.
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

i
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).

ii
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 self-

defense. Following three days of testimony, the jury returned a verdict convicting the

1
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.
2
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.

3
(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.

4
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 Constitution 5 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
5
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.
6
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 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 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

7
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

8
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
9
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.
10
(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.
11
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:

12
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

13
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

14
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.

15
IV. Conclusion

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

McDowell County is affirmed.

Affirmed.

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9896249. Public record. Not legal advice.