State v. Leadingham

• Decision Date: 15 December 1993
• Docket Number: No. 21678,21678
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. David LEADINGHAM, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 825

438 S.E.2d 825

190 W.Va. 482

STATE of West Virginia, Plaintiff Below, Appellee, v. David LEADINGHAM, Defendant Below, Appellant.

No. 21678.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1993.

Decided Dec. 14, 1993.

Dissenting Opinion of Chief Justice Workman Dec. 15, 1993.

Syllabus by the Court

1. "A defendant cannot waive his state and federal constitutional privileges against self-incrimination and rights to assistance of counsel at court-appointed pre-trial psychiatric examinations except upon advice of counsel." Syl. pt. 3, State v. Jackson, 171 W.Va. 329, 298 S.E.2d 866 (1982).

2. Under the Fourteenth Amendment of the United States Constitution and article III, § 10 of the West Virginia Constitution, due process and fundamental fairness dictate that the police and the prosecuting attorney be precluded from using an undercover informant to penetrate the clinical environment of a psychiatric institution in order to elicit incriminating statements from a defendant who is undergoing a court-ordered psychiatric evaluation. Any incriminating statements elicited from a defendant under these circumstances, upon proper motion by the defendant, shall be suppressed in the trial on the criminal charges to which the incriminating statements relate.

3. " 'A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.' Syl. pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982)." Syl. pt. 8, State v. Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991).

James A. McKowen, James B. Lees, Jr., Hunt, Lees, Farrell & Kessler, Charleston, for appellant.

Kristen L. Keller, Chief Deputy Pros. Atty. of Raleigh County, Beckley, for appellee.

McHUGH, Justice:

David Leadingham was found guilty by a jury in the Circuit Court of Raleigh County of intimidation of judicial officers and witnesses, obstruction of justice, conspiracy to obstruct justice, conspiracy to commit first degree murder, reckless driving and threatening phone calls. Mr. Leadingham is now before this Court upon the appeal of his convictions.

I.

While Mr. Leadingham and his wife were in the process of getting a divorce, he allegedly threatened to kill his wife, her attorney, her attorney's wife and children, and persons attending the attorney's church and parochial school. Based upon these threats, a three-count indictment was issued against Mr. Leadingham on October 4, 1990, in which he was charged with obstruction of justice and intimidation of judicial officers and witnesses.

While Mr. Leadingham was confined in the Raleigh County jail on those charges, he met Walter Farris, an inmate who was serving a sentence for driving under the influence. ¹ Mr. Farris contends that Mr. Leadingham told him that he wanted his wife to be killed. ² Mr. Leadingham allegedly gave Mr. Farris the telephone number of his sister, Patsy Rose, and directed him to call her when he was released from jail.

After his release on March 15, 1991, Mr. Farris telephoned Ms. Rose to inquire about Mr. Leadingham. During their telephone conversation, Ms. Rose informed Mr. Farris that Mr. Leadingham was in Weston State Hospital where he was undergoing a court-ordered psychiatric evaluation. Mr. Leadingham was being evaluated at Weston State Hospital to determine whether he was competent to stand trial on the charges of obstruction of justice and intimidation of judicial officers and witnesses, and whether he suffered from mental illness. Ms. Rose and Mr. Farris then made plans to visit Mr. Leadingham at Weston State Hospital.

On March 22, 1991, the morning he was to visit Mr. Leadingham, Mr. Farris telephoned West Virginia State Trooper Jan Cahill at 1:30 a.m. and told him of the incriminating statements Mr. Leadingham had made while they were incarcerated together in the Raleigh County jail. Trooper Cahill then telephoned the prosecuting attorney at 2:00 a.m. because he thought she "might be a little bit more familiar with [Mr. Leadingham.]" ³

Before Mr. Farris' first visit with Mr. Leadingham on the morning of March 22, 1991, Trooper Cahill provided him with a "hand-held pocket recorder." Mr. Farris and his wife then accompanied Ms. Rose to Weston State Hospital to visit Mr. Leadingham as they had previously planned. However, Mr. Farris did not speak privately with Mr. Leadingham during that visit, and thus did not use the tape recording device given to him by Trooper Cahill.

Mr. Farris later contacted Mr. Leadingham to arrange a second visit to Weston State Hospital. ⁴ On the second visit, which took place on March 29, 1991, Trooper Cahill drove Mr. Farris and his wife to Weston State Hospital and provided Mr. Farris with a tape-recording device. When hospital security found the recording device after searching Mr. Farris, they advised him that he could not bring the device into the hospital. Mr. Farris then brought the tape recording device to Trooper Cahill, who was waiting for him outside in his vehicle, and returned to visit Mr. Leadingham.

Mr. Farris alleges that, during the visit, Mr. Leadingham told him that he wanted him to kill his wife's attorney. ⁵ Mr. Leadingham allegedly gave Mr. Farris a description of the attorney's office and its entry. ⁶

On May 6, 1991, Mr. Leadingham's trial began on the charges of obstruction of justice and intimidation of witnesses stemming from his earlier threats to kill his wife, her attorney, her attorney's family, and members of the attorney's church and parochial school. When the prosecuting attorney read out the names of Mr. and Mrs. Farris, who were subpoenaed by the State, during voir dire, Ms. Rose, upon hearing their names, purportedly found Mr. and Mrs. Farris and told them to "get out of town."

By the end of the day on May 6, 1991, the jury had not yet been sworn in. That same day, Mr. and Mrs. Farris received and recorded two telephone calls from Ms. Rose urging them to leave town. The next morning, Mr. and Mrs. Farris gave the tape recordings of the telephone calls to Detective Robertson. The tapes were later played by the State in the judge's chambers with the defense present.

Mr. Leadingham's attorney moved for both a continuance of the trial ⁷ and to be removed as counsel. Both motions, to which the State objected, were granted by the circuit court.

Thereafter, Mr. Leadingham and Ms. Rose were arrested on the charge that they conspired to commit murder. On May 15, 1991, they were both indicted by a grand jury on the charges of conspiracy to commit murder, and of obstruction of justice at the May 6, 1991, trial.

Mr. Leadingham's principal defense to all of the charges against him was insanity. At the trial on all of those charges, Mr. Leadingham's counsel moved to suppress all statements alleged to have been made by Mr. Leadingham to Mr. Farris on or after March 22, 1991. ⁸ That motion was denied by the circuit court. Defense counsel also objected to the prosecution calling Mr. Leadingham's former treating psychiatrist, who treated him for a "mixed bipolar disorder," to testify on matters counsel believed to be beyond those reached by the psychiatrist during treatment. That motion was also denied. Defense counsel also made three motions for a mistrial and a motion for a directed verdict, all of which were denied by the circuit court.

Mr. Leadingham was ultimately convicted by the jury of all of the charges against him. He now appeals his convictions.

II.

The first issue we shall address in this appeal is whether the circuit court erred in admitting the statements made by Mr. Leadingham to Mr. Farris regarding the alleged murder conspiracy on and after March 29, 1991. ⁹ In support of their arguments, both parties rely on a line of decisions issued by the Supreme Court of the United States, beginning with Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The primary focus of the Massiah line of decisions concerned a defendant's rights under the Sixth Amendment of the United States Constitution. The Sixth Amendment provides, in relevant part, that "[i]n all criminal proceedings, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." Massiah also touched upon the rights of a defendant under the Fifth Amendment of the United States Constitution. The Fifth Amendment provides, in pertinent part, that "[n]o person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law[.]"

A. Massiah and its Progeny

In Massiah, the petitioner and his co-conspirator were indicted for violating federal narcotics laws. The petitioner, after retaining a lawyer and pleading not guilty, was released on bail along with his co-conspirator. The co-conspirator then, in cooperation with government agents, allowed a radio transmitter to be installed in his car so that conversations between the co-conspirator and the petitioner could be overheard by a government agent. The incriminating statements made by the petitioner to his co-conspirator in the car were used against him at trial.

The Massiah Court, after granting certiorari, held that incriminating statements deliberately elicited by government agents from the petitioner, after he had been indicted and in the absence of his attorney, denied the petitioner his right to counsel under the Sixth Amendment. The Court concluded that the petitioner's own incriminating statements under these circumstances could not be used by the prosecution against him at trial. ¹⁰

In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), while the defendant was incarcerated in jail pending his trial for armed robbery, government agents contacted an informant who was incarcerated in the same cellblock as the defendant, and asked him to be alert of any statements made by the fellow...