September 1993 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Raleigh County
Honorable Thomas Canterbury, Judge
Criminal Action Nos. 90-F-699; 90-F-736;
91-AP-417; 91-AP-418; 91-F-782
REVERSED AND REMANDED
Submitted: September 21, 1993
Filed: December 14, 1993
James A. McKowen
James B. Lees, Jr.
Hunt, Lees, Farrell & Kessler
Charleston, West Virginia
Attorneys for the Appellant
Kristen L. Keller
Chief Deputy Prosecuting Attorney of Raleigh County
Beckley, West Virginia
Attorney for the Appellee
JUSTICE McHUGH delivered the Opinion of the Court.
Chief Justice Workman dissents and reserves the right to file a
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).
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.
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
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. Mr. Farris
contends that Mr. Leadingham told him that he wanted his wife to
be killed. 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.]"
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
Mr. Farris later contacted Mr. Leadingham to arrange a
second visit to Weston State Hospital. 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. Mr. Leadingham allegedly gave Mr. Farris a
description of the attorney's office and its entry.
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 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. 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
Mr. Leadingham was ultimately convicted by the jury of
all of the charges against him. He now appeals his convictions.
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. 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
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
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 prisoners. The defendant was
ultimately convicted on the basis of incriminating statements he
had made during conversations with the informant while he was
The Henry Court, in its analysis, recognized that:
An accused speaking to a known Government
agent is typically aware that his statements
may be used against him. The adversary
positions at that stage are well established;
the parties are then 'arm's-length'
When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. . . .
Moreover, the concept of a knowing and
voluntary waiver of Sixth Amendment rights
does not apply in the context of
communications with an undisclosed undercover
informant acting for the Government. . . .
Finally, [the defendant's] incarceration
at the time he was engaged in conversation by
[the informant] is also a relevant factor
. . . . [T]he mere fact of custody imposes
pressures on the accused; confinement may
bring into play subtle influences that will
make him particularly susceptible to the
ploys of undercover Government agents.
447 U.S. at 273-74, 100 S. Ct. at 2188, 65 L. Ed. 2d at 124. The
Court held that by intentionally creating a situation likely to
induce the defendant to make incriminating statements without the
assistance of counsel, the government violated his Sixth
Amendment right to counsel. Id.
Next, in Maine v. Moulton, 474 U.S. 159, 106 S. Ct.
477, 88 L. Ed. 2d 481 (1985), the court was faced with the issue
of whether the defendant's Sixth Amendment right to the
assistance of counsel was violated when incriminating statements
made by him to his co-defendant, a secret government informant,
after indictment and at a meeting between the two to plan their
defense for trial, were admitted at trial. The Court, in
reaffirming that the "Sixth Amendment is violated when the State
obtains incriminating statements by knowingly circumventing the
accused's right to have counsel present in a confrontation
between the accused and a state agent[,]" reaffirmed that Massiah
"states a sensible solution to a difficult problem." Id. at 176,
179, 106 S. Ct. at 487, 489, 88 L. Ed. 2d at 496, 498. The court
The police have an interest in the thorough
investigation of crimes for which formal
charges have already been filed. They also
have an interest in investigating new or
additional crimes. Investigations of either
type of crime may require surveillance of
individuals already under indictment.
Moreover, law enforcement officials
investigating an individual suspected of
committing one crime and formally charged
with having committed another crime obviously
seek to discover evidence useful at a trial
of either crime. In seeking evidence
pertaining to pending charges, however, the
Government's investigative powers are limited
by the Sixth Amendment rights of the accused.
To allow the admission of evidence obtained
from the accused in violation of his Sixth
Amendment rights whenever the police assert
an alternative, legitimate reason for their
surveillance invites abuse by law enforcement
personnel in the form of fabricated
investigations and risks the evisceration of
the Sixth Amendment right recognized in
Massiah. On the other hand, to exclude
evidence pertaining to charges as to which
the Sixth Amendment right to counsel had not
attached at the time the evidence was
obtained, simply because other charges were
pending at that time, would unnecessarily
frustrate the public's interest in the
investigation of criminal activities.
Consequently, incriminating statements
pertaining to pending charges are
inadmissible at the trial of those charges,
notwithstanding the fact that the police were
also investigating other crimes, if, in
obtaining this evidence, the State violated
the Sixth Amendment by knowingly
circumventing the accused's right to the
assistance of counsel.
Id. at 179-80, 106 S. Ct. at 489, 88 L. Ed. 2d at 498-99
In Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616,
91 L. Ed. 2d 364 (1986), the defendant was incarcerated after his
arraignment on charges arising from a robbery and murder, with an
inmate who had agreed to work with the police as an informant.
The informant was directed by the police not to ask the defendant
any questions, and to merely listen to what the defendant may say
in his presence. The defendant voluntarily made incriminating
statements to the informant, which were reported by the informant
to the police.
The Kuhlmann court reversed the Court of Appeals' holding that the defendant's right to counsel was violated. The Supreme Court held the Court of Appeals' decision was clear error in light of the provisions of 28 U. S. C. § 2254(d), which requires that the state court's factual findings be accorded the presumption of correctness. Id. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 385. The court recognized that
the primary concern of the Massiah line of
decisions is secret interrogation by
investigatory techniques that are the
equivalent of direct police interrogation.
Since 'the Sixth Amendment is not violated
whenever--by luck or happenstance--the State
obtains incriminating statements from the
accused after the right to counsel has
attached,' . . . a defendant does not make
out a violation of that right simply by
showing that an informant, either through
prior arrangement or voluntarily, reported
his incriminating statements to the police.
Rather, the defendant must demonstrate that
the police and their informant took some
action, beyond merely listening, that was
designed deliberately to elicit incriminating
Id. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384-85. (emphasis added and citation omitted).
Finally, the Supreme Court has held that the sixth
amendment decisions in Massiah, Henry and Moulton do not apply in
cases where charges have not been filed against the defendant for
the offense which is the subject of the interrogation, and the
Sixth Amendment right to counsel has not attached. Illinois v.
Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990).
In Perkins, police placed an undercover agent in a cell with the
defendant who was incarcerated on charges other than the murder
the agent was investigating. The court held that the undercover
agent posing as a fellow inmate did not need to give Miranda
warnings to the incarcerated defendant because the Miranda
concerns of a "'police-dominated atmosphere' and compulsion are
not present when an incarcerated person speaks freely to someone
whom he believes to be a fellow inmate." Id. at 296, 110 S. Ct.
at 2397, 110 L. Ed. 2d at 251. The court further held that
the Massiah line of decisions did not apply because the subject
of the interrogation was related to a separate offense for which
no charges had been filed.
We believe that certain factors identified in the
Massiah line of decisions should be taken into consideration by
circuit courts in determining whether to grant motions to
suppress incriminating statements elicited by an undercover
informant working for the police from a defendant whose Sixth
Amendment right to counsel has already attached. Thus, in
considering whether to grant a motion to suppress incriminating
statements elicited from a defendant by an undercover agent
working for police, the circuit court should consider whether:
(1) the police, through the use of an undercover agent, have
intentionally created a situation likely to induce the defendant
to make incriminating statements without the assistance of
counsel; (2) the incriminating statements relate to an offense
for which the defendant has already been indicted or the right to
counsel has otherwise attached; (3) the police or prosecuting
attorney knowingly circumvented the defendant's right to counsel
and deliberately elicited incriminating statements from the
defendant; and (4) the defendant has shown that the police and
the undercover agent have taken some action, beyond mere
listening, that was induced to elicit incriminating statements
from the defendant.
B. Due Process
While the Massiah factors would otherwise be applicable to this case, they are not controlling in light of the peculiar facts before us. Massiah assumes that there are no questions concerning the mental condition of the defendant. Nor in Massiah were the police and the prosecuting attorney, in a surreptitious attempt to obtain incriminating evidence against the defendant, seeking to penetrate the clinical environment where the court- ordered psychiatric evaluation of the defendant was occurring.
What this Court finds so compelling is the fact that
Mr. Leadingham, at the time he allegedly made the incriminating
statements, was not incarcerated in jail nor was he released on
bail awaiting trial. Instead, he was confined in a psychiatric
hospital for a court-ordered psychiatric evaluation. This Court
is greatly troubled by a police practice that would allow an
undercover informant to obtain incriminating statements from a
defendant who is in a psychiatric facility for a court-ordered
psychiatric evaluation. While this Court is fully cognizant
of the State's interest in prosecuting crimes and protecting the
public, there is nothing in the record before us that would even
suggest that sending Mr. Farris to a psychiatric institution to
elicit incriminating statements from Mr. Leadingham was crucial
to solving the crime or protecting the public.
Equally compelling is the fact that Trooper Cahill
testified that at no time did he or anyone else try to ascertain
what Mr. Leadingham's mental condition was at the time he was in
Weston State Hospital for a court-ordered psychiatric evaluation.
Moreover, when Trooper Cahill contacted Trooper Gary McGraw of
the Criminal Investigative Service of the State Police in Beckley
to inquire whether it would be a problem for Mr. Farris to wear a
"wire" into Weston State Hospital, Trooper McGraw, after making
inquiries, advised him that the hospital staff "didn't want to be
part of it[.]" Yet, despite the wishes of hospital staff,
Trooper Cahill sent Mr. Farris to Weston State Hospital with a
recording device. The recording device was removed from Mr.
Farris by hospital staff once Mr. Farris went through the
While Mr. Leadingham was in Weston State Hospital, the
evaluators determined that he was suffering from a bipolar
disorder. In a forensic evaluation dated March 30, 1991, B. M.
Hirani, M. D. reported that Mr. Leadingham suffers from a
"Bipolar Disorder" which "occurs from mental illness[,]" and
that he "would need continued and ongoing psychiatric care and
supervision." Moreover, in his court assessment, conducted
on March 29, 1991, Robert W. Solomon, Ed.D. found that Mr.
Leadingham "is not responsible for criminal conduct, because at
the time of the alleged offense, he was suffering from a mental
illness or disease which made it impossible for him to appreciate
the criminality of his conduct and to conform his conduct to the
requirements of the law." Thus, Mr. Leadingham's mental
condition was clearly in question at the time Mr. Farris visited
him at Weston State Hospital.
This Court has previously recognized that the pre-trial psychiatric examination is a "critical stage" of an adversarial criminal process. State v. Jackson, 171 W. Va. 329, 335, 298 S.E.2d 866, 872 (1982). We found in Jackson that
[w]hen a court, on its own or the State's
motion, orders a pre-trial psychiatric
examination of a defendant, we can presume
there is a question about defendant's
competency or mental condition. To guarantee
that state and federal constitutional rights
are scrupulously honored in these
circumstances, we find that no waiver of
these rights will be effective without advice
Id. at 336, 298 S.E.2d at 873. We articulated this finding in syllabus point 3 of Jackson: "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." Moreover, W. Va. Const. art. III, § 10 states that "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." Inherent in article III, § 10 of the West Virginia Constitution is the concept of substantive due process. State ex rel. Harris v. Calendine, 160 W. Va. 172, 179, 233 S.E.2d 318, 324 (1977). Similarly, the Supreme Court of the United States has interpreted "the Fifth and Fourteenth Amendments' guarantee of 'due process of law' to include a substantive component, which forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, ___ U.S. ___, 113 S. Ct. 1439, 1447, 123 L. Ed. 2d 1, 16 (1993) (citations omitted and emphasis in original). The Supreme Court has explained that "[s]o-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326 (1937)." United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 708 (1987) (footnote added). "Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression[.]'" DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 196, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249, 259 (1989) (citation omitted). Thus, when the State's action in obtaining incriminating evidence against a defendant is overzealous or outrageous and infringes upon a defendant's constitutional rights under the Fourteenth Amendment of the United States Constitution and W. Va. Const. art. III, § 10, due process and fundamental fairness preclude the State from using such evidence against the defendant. See generally State v. Hinkle, 169 W. Va. 271 n. 3, 286 S.E.2d 699 n. 3 (1982).
It logically follows from Jackson and the state and
federal due process clauses that while a defendant is
hospitalized in a psychiatric facility for a court-ordered
psychiatric examination, his or her constitutional rights should
be scrupulously honored. By sending an undercover informant to
the psychiatric facility to obtain incriminating statements from
a defendant while he or she is hospitalized for a court-ordered
psychiatric evaluation, without ascertaining his or her mental
condition, the police fail to scrupulously honor the defendant's
constitutional rights. Due process and fundamental fairness
preclude the admission of incriminating statements which are
obtained from a defendant by an undercover informant who elicits
such statements while the defendant is hospitalized in a
psychiatric institution for a court-ordered psychiatric
Thus, we hold that 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.
We conclude that the incriminating statements obtained
by Mr. Farris from Mr. Leadingham should have been
suppressed. Therefore, we shall remand this case to the
circuit court for a new trial.
Mr. Leadingham also contends that the circuit court
erred in refusing to grant his motion for a mistrial, including a
motion for a mistrial made during the State's rebuttal argument
for impermissible argument and prosecutorial misconduct. Mr.
Leadingham objects to the following statements by the prosecuting
attorney in closing argument, and asserts that they were clearly
The proof in this case leaves no doubt that
this defendant has engaged in a course and
conduct that destroys the system. No one's
dead, but you can kill it. And you can kill
it by a verdict of not guilty or you can save
it. And you can tell Mrs. Leadingham and
every other victim in this case they were
right when we asked them to trust us and we
would protect them; or you can let everyone
know they were wrong to trust us and we can't
However, as pointed out by the State, the circuit court
gave a curative instruction to the jury. The circuit court
Ladies and gentlemen of the jury, let me just again remind you that argument of counsel is argument of counsel. They have a right to address you in final summation, but you heard the evidence. You are the sole judges of the evidence as I've instructed you. I've given you the law and the case will be deliberated and decided by you, each one, on those standards and those standards alone.
Thus, in light of the judge's curative instruction to
the jury, we cannot say that the statements of the prosecuting
attorney in closing argument clearly prejudiced Mr. Leadingham or
resulted in manifest injustice. See State v. Ocheltree, 170 W.
Va. 68, 289 S.E.2d 742 (1982). As we recognized in syllabus
point 8 of State v. Hays, 185 W. Va. 664, 408 S.E.2d 614 (1991):
"'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)."
We caution, however, on remand of this case for a new
trial, that a prosecuting attorney is in a quasi-judicial role
and "is required to avoid the role of a partisan, eager to
convict," and must "set a tone of fairness and impartiality[.]"
Syl. pt. 1, in pertinent part, State v. Critzer, 167 W. Va. 655,
280 S.E.2d 288 (1981).
Mr. Leadingham's final assignments of error, which were
only briefly discussed in his appeal brief, involve first,
whether the circuit court erred in permitting the state to call
his former treating psychiatrist to give an opinion beyond those
reached by the psychiatrist during his treatment of Mr.
Leadingham, and second, whether the circuit court erred in
denying his motion for a directed verdict on the ground that he
was not guilty by reason of insanity based upon the court-ordered
evaluation by Weston State Hospital.
Mr. Leadingham contends that by calling his treating
psychiatrist, Basil Roebuck, M.D., and allowing him to testify
against Mr. Leadingham as an expert, the trial court violated
the physician-patient relationship. Yet, counsel on behalf of
Mr. Leadingham advised the circuit court, in camera, that he had
no objection to Dr. Roebuck testifying regarding the "facts and
opinions and/or conclusions" reached by Dr. Roebuck while he was
treating Mr. Leadingham, but that he objected to him being
allowed to testify regarding Mr. Leadingham's competency and
legal sanity. Mr. Leadingham's counsel believed Dr. Roebuck
could testify regarding his treatment of Mr. Leadingham but not
as to whether he believed Mr. Leadingham was sane. Counsel on
behalf of Mr. Leadingham does not cite any authority to support
his assertion that the circuit court committed reversible error
in allowing Dr. Roebuck to testify regarding Mr. Leadingham's
We point out, however, that the admissibility of
testimony by an expert witness under W. Va. R. Evid. 703 is a
matter within the sound discretion of the trial court, and the
trial court's decision will not be reversed unless it is clearly
wrong. Syl. pt. 6, Helmick v. Potomac Edison Co., 185 W. Va.
269, 406 S.E.2d 700, cert. denied, ___ U.S. ___, 112 S. Ct. 301,
116 L. Ed. 2d 244 (1991). Based upon the record before us, we do
not believe that the trial court's decision to allow Dr. Roebuck
to testify regarding his opinion as to whether Mr. Leadingham was
sane was clearly wrong.
With respect to the issue of whether the circuit court
erred in refusing to direct a verdict of not guilty by reason of
insanity, we recognize that the jury heard conflicting evidence
as to Mr. Leadingham's sanity at the time he allegedly committed
the crimes for which he was charged. Dr. Solomon, the
psychologist who evaluated Mr. Leadingham at Weston State
Hospital, found that, although he was competent to stand trial,
he was not criminally responsible for his actions prior to his
evaluation at Weston State Hospital. Dr. Roebuck, Mr.
Leadingham's treating physician, testified on rebuttal that there
was nothing in Dr. Solomon's diagnosis of bipolar disorder
without psychosis that would indicate insanity. While the State
has the burden of proving sanity beyond a reasonable doubt, that
"'does not mean that the sanity evidence must be entirely without
contradictions.'" State v. McWilliams, 177 W. Va. 369, 379, 352
S.E.2d 120, 130 (1986) (citation omitted). We believe that the
sanity issue was properly presented to the jury and there was
sufficient evidence from which the jury could conclude beyond a
reasonable doubt that Mr. Leadingham was sane.
For the reasons stated herein, we reverse and
remand this case to the circuit court for a new trial.
Reversed and Remanded..