IN THE SUPREME COURT OF AP PEALS OF WEST VIRGINIA JANUARY 2019 TERM

No. 18-0337

STATE OF WEST VIRGINIA EX REL. ERIC W. LEWIS, Petitioner V. THE HONORABLE KURT W. HALL, JUDGE OF THE CIRCUIT COURT OF UPSHUR COUNTY, WEST VIRGINIA, AND DAVID E. GODWIN, UPSHUR COUNTY PROSEC UTING ATTORNEY, Respondents

___________________ _____________________ ________________ PETITION FOR WRIT OF PROHIBITION WRIT DENIED

___________________ _____________________ _________________ Submitted: January 16, 2019 Filed: March 8, 2019

Ira Richardson Clarksburg, West Virginia Dennis J. Willett Nanners & Willett, L.C. Buckhannon, West Virginia Attorneys for Petitioner David E. Godwin Upshur County Prosecuting Attorney Buckhannon, West Virginia Attorney for Respondents

JUSTICE JENKINS delivered th e Opinion of the Court. 

### FILED March 8, 2019 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIASYLLABUS BY THE COURT

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisd iction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (l) whether the party seeking the writ has no othe r adequate means, such as direct appeal, to obtain the desired relief; (2) whether th e petitioner will be damage d or prejudiced in a way that is not correctable on appeal; (3) wh ether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lo wer tribunal’s order is an oft repeated error or manifests persistent disregard for either pr ocedural or substantive law; and (5) whether the lower tribunal’s order raises new and im portant problems or issues of law of first impression. These factors are general guidelines that serve as a usef ul starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that th e third factor, the existence of clear error as a matter of law, should be given subs tantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996).

2. “‘This Court will not pass on a nonj urisdictional que stion which has not been decided by the tr ial court in the first inst ance.’ Syllabus Point 2, Sands v. SecurityTrust Company , 143 W. Va. 522, 1 02 S.E.2d 733 (1958).” Syllabus point 2, Duquesne Light Co. v. State Tax Department , 174 W. Va. 506, 3 27 S.E.2d 683 (1984).

3. There is no per se disqualification of a presiding judge when the Clerk of Court is called to testify for the Prosecution’s case-in-chief.1 Jenkins, Justice: This case was brought as a writ of prohi bition under the original jurisdiction of this Court by the Petitioner, Eric W. Lewis (“Mr. Lewis”). In this proceeding, Mr. Lewis seeks to have this Court disqualify the Respon dent, the Honorable Kurt W. Hall, Judge of the Circuit Court of Upshur County (“Judge Ha ll”), from presiding over his criminal trial. 1 As an alternative form of relie f, Mr. Lewis seeks to have this Court prohibit the Respondent, David E. Godwin, Upshur County Prosecutin g Attorney (“Prosecutor Godwin”), from calling the clerk of the circuit court as a witness in the Prosecu tor’s case-in-chief. 2 Upon careful review of the briefs, the appendix r ecord, the arguments of the parties, and the applicable legal authority, we deny the writ.

I. FACTUAL AND PROC EDURAL HISTORY The limited record in this case shows th at on September 11, 2017, an Upshur County grand jury returned a one-count indictment against Mr. Lewis, charging him with

1 Judge Hall filed a Summary Response to the Petition.

2 The Prosecutor, David Godwin, f iled a Response to the Petition.2 the felony offense of failure-to-appear. 3 This offense arose out of Mr. Lewis’ failure to make an appearance at a pretrial hearing in a previous felony criminal proceeding in which he was the defendant. 4 In preparation for trial on the fa ilure-to-appear charge, Prosecutor Godwin filed a witness list that included the Clerk of the Circuit Court, Brian Gaudet (“Clerk Gaudet”), and Mr. Lewis’ attorney in the previous criminal case, Hunter Simmons (“Mr. Simmons”).

Prosecutor Godwin intended to call Cl erk Gaudet to authenticate records from the prior criminal case, and to testify ab out Mr. Lewis having been released on bond. Prosecutor Godwin also intended to call Mr. Si mmons to testify that Mr. Lewis was present at the arraignment in the prior criminal case, and therefore knew of the pretrial hearing date that was set at the arraignmen t proceeding. Mr. Simmons file d a motion to quash the trial subpoena on the grounds of attorney-client privilege. A hearing on the motion to quash was held. During the hearing, the circuit cour t instructed Prosecutor Godwin to determine whether another witness could be called to pr ovide the testimony that was sought from Mr. Simmons. Prosecutor Godwin informed the court that Clerk Gaudet could provide the

3 See W. Va. Code § 62-1C-17b(b) (Lexis Nexis 1984) (failure-to-appear).

4 In the previous felony criminal pr oceeding, Mr. Lewis was charged with malicious assault and third offense domestic battery.3 testimony regarding Mr. Lewis’ presence at the arraignment in the prior case. The circuit court entered an order quashing th e subpoena issued to Mr. Simmons.

On the day of the trial, April 12, 2 018, Mr. Lewis filed an amended motion to recuse Judge Hall. In th at motion, Mr. Lewis contended that because Clerk Gaudet was going to testify at the trial, he would be prejud iced if Judge Hall remain ed in the case. This argument was set out in one paragraph as follows: Comes now your Defendant by and through his undersigned Counsel who moves to recuse the Hon. Kurt Hall from presiding upon the trial of this matter scheduled for April 12, 2018. In support thereof, your Defendant asserts that his Counsel has been info rmed that the State of West Virginia intends to call Brian Gaudet as a ma terial witness in its case in chief. Mr. Gaudet served as th e Clerk of this Court, and was acting in that capacity during ju ry selection. As a material witness for the State, your Defend ant asserts that the jury will be prejudiced insofar as it will impress upon them that the Court itself has taken the side of the State of West Virginia in its prosecution.

Judge Hall denied Mr. Lewis’ recusal mo tion. However, the court granted a motion by Mr. Lewis to stay th e trial so that he could file the instant petition challenging the denial of his recusal motion.4 II. STANDARD FOR ISSU ANCE OF WRIT Mr. Lewis brought this action under the Court’s original jurisdiction seeking a writ of prohibition. This Court stated in the Syllabus point of State ex rel. Vineyard v. O’Brien , 100 W. Va. 163, 130 S.E. 111 (1925): “The writ of prohibition will issue only in clear cases, where the inferior tribunal is procee ding without, or in excess of, jurisdiction.” See also Syl. pt. 2, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the tr ial court has no jurisdiction or having such jurisdiction exceeds its le gitimate powers. W. Va. Code § 53-1-1.”).

In Syllabus point 4 of State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for i ssuance of a writ of prohibition when it is alleged a lower cour t is exceeding its authority: In determining whether to entertain and issue the writ of prohibition for cases not involvi ng an absence of jurisdiction but only where it is claimed that the lower trib unal exceeded its legitimate powers, this Cour t will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be da maged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erro neous as a matter of law; (4) whether the lower tribunal’s orde r is an oft repeated error or5 manifests persistent disregar d for either procedural or substantive law; and (5) whethe r the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are gene ral guidelines that serve as a useful starting point for determ ining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight. With the foregoing in mind, we tu rn to the parties’ arguments.

III. DISCUSSION We previously noted that M r. Lewis raised two issues in this proceeding. First, whether the prosecutor sh ould be precluded from calling the clerk of the circuit court as a witness in the prosecutor’s case-in-chie f. Second, whether the trial judge should be disqualified from presiding over Mr. Lewis’ cr iminal trial. These two issues will be discussed in turn.

Prosecutor Godwin contends, and we agree, that the issue of prohibiting Clerk Gaudet from testifying was not raised below and is therefore not properly before this Court. Mr. Lewis has failed to cite to anything in the record that shows he moved Judge Hall, orally or in writing, to proh ibit Prosecutor Godwin from calling Clerk Gaudet as a witness.6 We previously have held that “[t]his Court will not consider an error which is not properly preserved in the record nor appare nt on the face of the record.” State v. Browning , 199 W. Va. 417, 425, 48 5 S.E.2d 1, 9 (1997). Accord Hanlon v. Logan Cty. Bd. Of Educ ., 201 W. Va. 305, 315, 496 S.E.2d 447, 457 (1997). More specifically , we have held that “‘[t]his Court will not pass on a nonjuris dictional question which has no t been decided by the trial
court in the first instan ce.’ Syllabus Point 2, Sands v. Security Trust Co. , 143 W. Va. 522, 102 S.E.2d 733 (1958).” Syl. pt. 2, Duquesne Light Co. v. State Tax Dep’t , 174 W. Va. 506, 327 S.E.2d 683 (1984). See also Syl. pt. 2, Cameron v. Cameron , 105 W. Va. 621, 143 S.E. 349 (1928) (“This court will not re view questions which have not been decided by the lower court.”). We have explained this general rule as follows:
The rationale behind this rule is that when an issue has not been raised below, the fact s underlying that issue will not have been developed in such a way so that a disposition can be made. . . . Moreover, we consider the element of fairness. . . . [I]t is manifestly unfair for a party to raise new issues [before this Court]. Finally , there is also a need to have the issue refined, developed, an d adjudicated by the trial court, so that we may have the benefit of its wisdom. Whitlow v. Bd. of Ed uc. of Kanawha Cty. , 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993).
See also Syl. pt. 6, in part, State ex rel. Allstate Ins. Co. v. Gaughan , 203 W. Va. 358, 5087 S.E.2d 75 (1998) (“A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusion s of law that support and form the basis of its decision.”). In light of these authorities, we conclude that Mr. Lewis is not entitled to a writ of prohibition on the issu e of preventing testimony by Cl erk Gaudet because that issue was not raised below.

Turning to the question of disqualification of the tria l judge, we note, as a general matter, this Court has frequently observed that “a party aggrieved by a trial court’s decision on a motion to disqualify may properly challenge the trial court’s decision by way of a petition for a wr it of prohibition.” State ex rel. Ogden Newspapers, Inc. v. Wilkes , 198 W. Va. 587, 589, 482 S. E.2d 204, 206 (1996). See also State ex rel. Blackhawk Enters., Inc. v. Bloom , 219 W. Va. 333, 337, 633 S.E.2d 2 78, 282 (2006) (“When considering the issuance of a writ of prohibition arising fro m a circuit court’s ruling on a motion for disqualification, this Court has consistently fo und the same to be an appropriate method of challenge.”); State ex rel. Blake v. Hatcher , 218 W. Va. 407, 412, 624 S.E.2d 844, 849 (2005) (same). We note further that West Vi rginia Trial Court Rule 17.01 provides that “[u]pon a proper disqualificati on motion, as set forth in th is rule, a judge shall be8 disqualified from a proceeding only where the judge’s impa rtiality might reasonably be questioned, in accordance with the principles esta blished in Canon 2, Rule 2.11 of the Code of Judicial Conduct.”

In this proceeding, Mr. Lewis alleges th at Judge Hall should have disqualified himself because the State was going to call Clerk Gaudet as a witness in its case-in-chief. According to Mr. Lewis, insofar as the court clerk is an office r of the court, he would be prejudiced by having Judge Hall preside over the case. We reject Mr. Lewis’ contention. We can find no authority that supports the argum ent that a trial judge is disqualified from a criminal trial merely because the clerk of the court will testify that a defendant failed to appear at a prior proceeding. 5 Court clerks regularly testify in court to auth enticate records and other matters, including pr oviding testimony that a defenda nt failed to appear at a criminal proceeding. For example, in Cureton v. State , No. 0717-00410-CR, 2018 WL 3736177 (Tex. App. Aug. 6, 2018), the defenda nt pled guilty to bail jumping and failure5 There is authority holding that if a ju dge’s law clerk testifies in a case then the judge should recuse himself. See Terrazas v. Slagle , 142 F.R.D. 136, 139 (W.D. Tex. 1992) (“[T]he Fifth Circuit Court of Appeals held that if a law clerk testifies as a witness in a case before his judge, the judge must disqualify himself.” (citing Kennedy v. Great Atl. & Pac. Tea Co ., 551 F.2d 593, 599 (5th Cir. 1997))).9 to-appear. The defendant elect ed to have a jury determin e his punishment. During the punishment proceeding, “[t]he district clerk testified, iden tifying [defendant] and telling the jury [defendant] was required to appear in court on June 13, 2017, fo r trial on a deadly conduct charge but failed to do so.” Id . at *1. See also Reese v. State , 2018 Ark. App. 336, 552 S.W.3d 47 (2018) (“[T]he district court cl erk, Cheryl Spade, testified that Reese failed to appear for his February 23, 2016 court date.”); Bell v. State , 108 So. 3d 639, 644 (Fla. 2013) (“Regarding the charge of failure to appear, the State presented the testimony of the Escambia County Clerk of Court . . . to estab lish that Bell was not pr esent at multiple court dates[.]”); State v. Lasley , 130 S.W.3d 15, 18 (Mo. Ct. App. 2004) (“In this case, the only evidence adduced at trial concer ning Defendant’s failure to a ppear consisted of testimony of a courtroom clerk who read entrie s from the Defendant’s court file.”); State v. Weathers , 339 N.C. 441, 453, 45 1 S.E.2d 266, 272-73 (1994) (“In this case, the State called Jerri Queen, Clerk of Superior Court, Gaston County, as its only witness for the failure to appear charge.”); State v. Osborne , No. M2010-02281-CCA-R3CD , 2012 WL 1 657047, at *1 (Tenn. Crim. App. May 9, 20 12) (“Linda Kincaid, Deputy Clerk of the Williamson County General Sessions Clerk’s Office, testified that court dockets showed that the defendant attended a July 9, 2009 initial appearance in general sessions court where the court advised the defendant of his next co urt date, August 12, 2009.”); Black v. State , 362 S.W.3d 626, 638 (Tex. Crim. App. 2012) (“The State pres ented testimony from the clerk of the court10 regarding the failure to appear offense and from the arresting officer about Appellant’s displaying expired license plates charge.”); Gillard v. Commonwealth , No. 0037-02-2, 2003 WL 21962513, at *11 (Va. Ct. App. Aug. 19, 2003) (“ The April 22, 1998 warrant for arrest was authenticated by th e deputy clerk, and her test imony as to its content was therefore admissible as prima facie eviden ce of Gillard’s failure to appear.”); State v. Hart , 195 Wash. App. 449, 45 4, 381 P.3d 142, 144 (2016) (“St aci Myklebust testified that she was working as deputy clerk on September 9, and that Hart did not appear for his hearing. . . . Myklebust further testified that th e trial court issued a bench warrant for Hart’s arrest based on his failure to appear.”).

Additionally, Rule 44(a)(1) of the West Virginia Rules of Civil Procedure, made applicable to criminal proceedings by Rule 27 of the West Virginia Rules of Criminal Procedure, 6 expressly provides that a copy of an offi cial record is admi ssible when “attested by the officer having the legal custody of th e record, or by the officer’s deputy, and accompanied by a certificate that such officer has the custody.” In other words, Rule 44(a)(1) expressly authorizes a court cler k to testify in court regarding records. Cf.

6 See State v. McCraine , 214 W. Va. 188, 198, 58 8 S.E.2d 177, 187 (2003), overruled on other grounds by State v. Herber t, 234 W. Va. 576, 767 S.E.2d 471 (2014).11 Trussell v. State , No. 1D16-3763, 2018 WL 4042629, at *3 (Fla. Di st. Ct. App. Aug. 24, 2018) (Jay, J., concurring, in part, and disse nting, in part) (“During the State’s case-inchief, Dana Johnson, the clerk of the court fo r Dixie County, testified that [defendant] requested and received access to the courtroom on August 14, 2014, the day before he filed the two ‘true bills.’”); Mann v. State , 754 N.E.2d 544, 548 (Ind. Ct. Ap p. 2001) (“Deputy Clerk Gramaglia, who is entrusted with official duties in his district, te stified at trial that the documents were what the State purported them to be, and this is sufficient to authenticate the documents.”); State v. Waycaster , No. COA17-1249, 2018 WL 3732956, at *5 (N.C. Ct. App. Aug. 7, 2018) (“The Cl erk of McDowell County Superior Court, the individual tasked with maintaining the physical court records in McDowell County, testified that the printout wa s a certified true copy of the information in ACIS regarding this judgment.”).

It is clear from the above authorities that a trial judge is not required to recuse himself merely because the prosecutor intends to call the court clerk as a witness. Prosecutor Godwin correctly observes that, if Mr. Lewis’ contention was the law, he could never be tried because the so-called dis qualifying prejudice cite d by him would occur regardless of who was the judge. We therefore hold that there is no per se disqualification12 of a presiding judge when the Clerk of Court is called to testify fo r the Prosecution’s casein-chief.

IV. CONCLUSION In view of the foregoing, the writ of prohi bition prayed for by Mr. Lewis is denied.

Writ denied.