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State v. Hall

Supreme Court of West Virginia

March 8, 2019

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 PROSECUTING ATTORNEY, Respondents

          Submitted: January 16, 2019

          PETITION FOR WRIT OF PRHIBITION WRIT DENIED

          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

         SYLLABUS BY THE COURT

         1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court 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 damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining 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." 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 nonjurisdictional question which has not been decided by the trial court in the first instance.' Syllabus Point 2, Sands v. Security Trust Company, 143 W.Va. 522, 102 S.E.2d 733 (1958)." Syllabus point 2, Duquesne Light Co. v. State Tax Department, 174 W.Va. 506, 327 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.

          OPINION

          JENKINS JUSTICE

         This case was brought as a writ of prohibition 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 Respondent, the Honorable Kurt W. Hall, Judge of the Circuit Court of Upshur County ("Judge Hall"), from presiding over his criminal trial.[1]As an alternative form of relief, Mr. Lewis seeks to have this Court prohibit the Respondent, David E. Godwin, Upshur County Prosecuting Attorney ("Prosecutor Godwin"), from calling the clerk of the circuit court as a witness in the Prosecutor's case-in-chief.[2] Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we deny the writ.

         I. FACTUAL AND PROCEDURAL HISTORY

         The limited record in this case shows that on September 11, 2017, an Upshur County grand jury returned a one-count indictment against Mr. Lewis, charging him with 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 failure-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 Clerk Gaudet to authenticate records from the prior criminal case, and to testify about Mr. Lewis having been released on bond. Prosecutor Godwin also intended to call Mr. Simmons 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 arraignment proceeding. Mr. Simmons filed 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 court instructed Prosecutor Godwin to determine whether another witness could be called to provide the testimony that was sought from Mr. Simmons. Prosecutor Godwin informed the court that Clerk Gaudet could provide the testimony regarding Mr. Lewis' presence at the arraignment in the prior case. The circuit court entered an order quashing the subpoena issued to Mr. Simmons.

         On the day of the trial, April 12, 2018, Mr. Lewis filed an amended motion to recuse Judge Hall. In that motion, Mr. Lewis contended that because Clerk Gaudet was going to testify at the trial, he would be prejudiced if Judge Hall remained ...


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