# State v. Leadingham

> West Virginia Supreme Court · December 15, 1993 · 190 W. Va. 482

URL: https://www.frixlaw.com/law-library/cases/9845254

## Case

- **Full name:** STATE of West Virginia, Plaintiff Below, Appellee, v. David LEADINGHAM, Defendant Below, Appellant
- **Court:** West Virginia Supreme Court
- **Decided:** December 15, 1993
- **Citations:** 190 W. Va. 482; 438 S.E.2d 825
- **Precedential status:** Published
- **Opinion:** Dissent by Workman
- **Judges:** McHugh, Workman
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9845254

## Opinion text

WORKMAN, Chief Justice,
dissenting:
(Filed Dec. 15, 1993)
I respectfully dissent from the majority’s opinion. This case creates out of whole cloth a new right for criminal defendants for which the United States Supreme Court has not found to exist, and for which there is no constitutional basis. In so doing, the majority makes the lawful investigation of crime more difficult.
The Appellant was indicted in October 1990 on three counts of obstruction of justice and witness intimidation based on his threats to kill his wife, Agnes Leadingham, his wife’s attorney, John Hutchison, and Mr. Hutchi-son’s wife and children, as well as other persons who attended St. Francis de Sales Catholic Church and parochial school. The Appellant was incarcerated on these charges in the Raleigh County Jail, and was represented by an attorney.
While the Appellant was in jail, he met Walter Farris, who was serving a DUI sentence. Mr. Farris had never met the Appellant, Mrs. Leadingham, or John Hutchison. Further, Mr. Farris was not a police informant, had no pending charges or “deals” with the police and never received any benefit from the state, financial or otherwise, for his later cooperation with the law enforcement authorities.
Mr. Farris testified at trial that while in jail, the Appellant complained that his wife “was trying to take everything he had and that he wanted her done away with,” and “he wanted her shot three times in the chest and twice in the head” by a .22 “[w]ith a silencer.” The Appellant told Mr. Farris about his wife’s daily habits and promised that whoever “killed his wife for him” would “be well taken care of.” After Farris got out of jail, he called the Appellant “to see if he still wanted to make a deal.” The Appellant was *494 subsequently transferred to the Weston State Hospital, for a psychological evaluation arising out of the pending charges.
After his release from jail, Mr. Farris contacted West Virginia State Police Trooper Cahill. Mr. Farris testified that he contacted the state police and notified them of the Appellant’s murder solicitation. Mr. Farris agreed to maintain contact with the Appellant in order to “prevent a murder,” since “[a]s long as he [the Appellant] was talking to me, he wasn’t trying to hire someone else.”
Based on the information received from Mr. Farris, Officer Cahill contacted the assistant prosecutor, Kristin Keller. Ms. Keller authorized the trooper to initiate an investigation. It is significant to note that the trooper initiated this investigation of the Appellant regarding the new charge of conspiracy to commit murder, not the charges for which the Appellant was already under indictment. The trooper’s testimony indicated that he did not seek permission to accept Mr. Farris’ offer of cooperation in order to get information on the charges already pending because the officer “wasn’t even sure what they [the pending charges] were....” Trooper Cahill testified that even though he was aware of the Appellant and the charges against him, he had not “had anything to do with David Leadingham” or any of those pending charges.
On Mr. Farris’ first visit to the Appellant at Weston, they did not speak alone. Mr. Farris visited him again at Weston State Hospital on March 29, 1991. Trooper Cahill drove Mr. and Mrs. Farris to Weston. Mr. Farris attempted to take a tape-recorder into the hospital, but hospital security denied him access with the recorder. Mr. Farris returned the tape-recorder to the trooper in the car outside and then proceeded back into the hospital where he was able to converse with the Appellant about the conspiracy. Mr. Farris described the resulting conversation: “I just asked him how he was doing and what had been happening[ ] [a]nd he started talking about Agnes. And he said not to hit Agnes; that he wanted her lawyer hit. And if the lawyer was hit ... that Agnes would back off.” The Appellant went on to direct Mr. Farris to use the same method of murder on the attorney that he had previously described for his wife.
DUE PROCESS
The majority hinges its decision on a due process analysis which arises out of this Court’s decision in State v. Jackson, 171 W.Va. 329 , 298 S.E.2d 866 (1982). In Jackson , the defendant argued that incriminating statements he made to a court-appointed psychiatrist as a result of a court-ordered psychiatric examination should have been inadmissible at trial as violative of his Fifth Amendment right against self-incrimination. Id. at 382 , 298 S.E.2d at 869 . The defendant argued that the statements were the result of a custodial interrogation in which Miranda warnings were not given, and the defendant did not have his attorney present. Id.
In Jackson , we recognized that the court-ordered “psychiatric examination is a ‘custodial interrogation’ by a state agent,” thereby implicating a defendant’s Fifth Amendment rights. Id. at 334 , 298 S.E.2d at 871 . However, we indicated that Miranda warnings did not have to be read; rather we required the circuit court to conduct an in camera hearing to excise any portion of the psychiatrist’s report containing incriminating statements. Id. Finally, we found that the defendant had “the right to assistance of counsel at a pre-trial psychiatric interview,” but that our state constitution “does not require counsel’s presence at the actual examination.” Id. at 335 , 298 S.E.2d at 866 .
Factually, the present case is not at all analogous to Jackson in that we are not dealing with incriminating statements elicited by a psychiatrist ordered by a court to conduct a psychiatric examination. The statements made by the Appellant in this ease are ones he voluntarily chose to make and thus had nothing to do with the court-ordered psychiatric evaluation which the Appellant was undergoing. All the evidence at trial indicated that Mr. Farris went to police in order to prevent a crime. He didn’t make any deals with police in exchange for his testimony. He was not placed in the jail as an agent for the State, and his relationship with the defendant was one initiated by the *495 two of them. The State’s only direct role in the whole sequence of events was to drive Farris to Weston State Hospital. Finally, Mr. Farris did nothing to elicit the incriminating statements other than to go visit the Appellant and listen receptively.
The evidence clearly indicates that, unlike the psychiatrist in Jackson , Mr. Farris was not an agent of the State. In Thomas v. Cox, 708 F.2d 132 (4th Cir.), cert. denied, 464 U.S. 918 , 104 S.Ct. 284 , 78 L.Ed.2d 262 (1983), the United States Court of Appeals for the Fourth Circuit addressed the concept of state agency with regards to informants. In Thomas , the informant went to the police with incriminating statements he obtained from the defendant, who was the informant’s cellmate. Id. at 133 . A state police officer asked the informant to go back to his jail cell and listen for anything else the defendant might say, but the informant was instructed not to ask the defendant any questions. Id. Also, the officer told the informant that he could not promise him anything in return for his help. Id. Indeed, like Mr. Farris in the instant case, the informant there also received no benefit whatsoever from the State. The informant, who testified that he was motivated by curiosity, obtained more incriminating statements from the defendant. Id. at 133-34 .
The Fourth Circuit, in determining that the informant was not a state agent focused on the following facts: 1) the informant was “ ‘self-initiated’ ” and “ ‘motivated by conscience’ ” in making contact with the defendant and offering assistance to the state; and 2) the informant was
at no time subject to the control of the Commonwealth, had made no prior ‘arrangement’ with the Commonwealth to procure information from or testify against the accused, and had ‘nothing to gain’ from his actions vis-a-vis the accused, having been promised no reward, nor having any reason created by the Commonwealth to anticipate any.
Id. at 135 (quoting in part from state trial judge’s opinion).
The Thomas court then stated that
where the citizen himself actively, though surreptitiously, elicits disclosures, the only question is whether at the critical time he was also a creature — an agent — of the state....
The point at which agency — hence proper attribution — for this purpose arises out of a government-citizen relationship is not subject to any bright-line test-
Id. at 136 (footnote omitted). The Fourth Circuit held that
We decline to find in the inmate-police encounter here the requisite degree of ‘prearrangement’ or ‘ongoing cooperation’ between state and witness required to implicate the state and thereby to invoke sixth amendment protections. To do so would be in practical effect to establish the principle that any voluntary proffer of inmate informer assistance not met with silence or actually repudiated by state officials would make inadmissible any inculpa-tory disclosures arguably induced by circumstances of confinement that are subsequently made by an accused in conversations with the inmate. We do not believe ... that the sixth amendment’s protection of the right to effective assistance of counsel was intended to reach so far....
Id. at 137 (citations omitted).
Hence, based on the Fourth Circuit’s definition of state agency in Thomas , Mr. Farris was not an agent of the State and the Jackson ease is clearly inapplicable to the facts of this case. There is nothing which would indicate that Mr. Farris had the requisite degree of prearranged or ongoing cooperation with the State to make him a State agent. The majority appears to have plucked the Jackson case up in an attempt to bolster their decision upon a rather shaky due process analysis, because it is otherwise unsupported by a straightforward Fifth or Sixth Amendment analysis.
In the due process analysis, the majority references many cases, but fails to apply these cases to the facts before us. Thus, the majority reaches the ultimate conclusion that what occurred in this case is fundamentally unfair without any real authority. The implications of the majority’s decision are far-reaching. For instance, the majority states that it “is greatly troubled by a police prac *496 tice 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.” Op. at 882. However, what the majority neglects to point out is that the Appellant invited, Mr. Farris to visit him, and Mr. Farris voluntarily went; hence, it was not a police practice or arrangement. The only involvement of the police was that they welcomed his voluntary cooperation and gave him a ride to Weston.
Further, the majority has effectively placed the burden on police officers to ascertain a defendant’s mental condition before new serious crimes can be investigated. How can police officers possibly ascertain a suspect’s mental condition? This is clearly the task of courts, when necessary, not police officers. Ironically, the majority itself concludes 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.” Op. at 836. Clearly, it was not this Appellant’s actual mental condition that impelled the majority to its decision, so much as the singular fact of being in a psychiatric hospital for evaluation. What is so magical about being in a hospital, as opposed to a jail, a public place, or one’s own home if mental condition is the issue?
Finally, the majority states that a defendant’s constitutional rights should be “scrupulously honored,” “while a defendant is hospitalized in a psychiatric facility.” Op. at 834. I strongly agree. As a matter of fact, such constitutional rights should be scrupulously honored at all other times as well. But there is no evidence which would indicate that the Appellant was deprived in any way of his constitutional rights in the instant ease.
* * * * * *
The necessity for these convoluted mental gymnastics becomes clear when a straightforward Fifth and Sixth Amendment analysis is made.
SIXTH AMENDMENT
The majority gives an extensive discussion of major Sixth Amendment cases and their reasoning, but neglects to apply them to the instant case. Perhaps that is because, when so applied, these cases do not support their position.
Let’s take them one by one. In Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), the defendant and codefendant were indicted for federal narcotics laws violations. After retaining an attorney, the defendant was released on bail. The codefendant, who was also out on bail, decided to cooperate with federal agents and allowed an agent to install a radio transmitter to the codefendant’s car. Id. at 202-03 , 84 S.Ct. at 1200-01 . Subsequently, unbeknownst to the defendant, a federal agent listened to incriminating statements made by the defendant to the eodefendant while both were in the codefendant’s car. Id. at 203 , 84 S.Ct. at 1201 . Those statements were introduced against the defendant at trial. The United States Supreme Court held that a defendant’s Sixth Amendment right to counsel was violated when “federal agents had deliberately elicited” incriminating statements from the defendant after he was indicted and without the presence of his attorney. Id. at 206 , 84 S.Ct. at 1203 . In the present case, neither the trooper, nor Mr. Farris did anything to deliberately elicit incriminating statements from the Appellant. Further, it is important to remember that the incriminating statements were not obtained after the Appellant was indicted on the charges for which the incriminating statements were used.
Then, in United States v. Henry, 447 U.S. 264 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980), the defendant challenged the admissibility of incriminating statements he made to an inmate who was a paid confidential informant for the government. Id. at 266 , 100 S.Ct. at 2185 . The confidential informant, who was serving time in the same correctional facility as the defendant, was approached by the government and was advised by an F.B.I. agent to be alert to any statements made by the defendant, but not to initiate any conversations. Id. Subsequently, the defendant made incriminating statements to the paid *497 informant regarding the charges already pending against him. Id.
The Supreme Court in Henry held that the defendant’s statements should not have been admitted against him at trial. Id. at 274 , 100 S.Ct. at 2189 . The Supreme Court focused on whether the government had deliberately elicited the incriminating statements from the defendant. Id. at 270 , 100 S.Ct. at 2187 . In reaching the conclusion that the statements were deliberately elicited, the Supreme Court stated:
Three factors are important. First, Nichols [the paid informant] was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.
Id. The Supreme Court, however, also stated that “[i]t is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed.” Id. at 272, 100 S.Ct. at 2187 (emphasis added).
None of these Henry factors were present in the instant ease. Mr. Farris was not a regular government informant, and was not paid or remunerated in any way for the information he obtained from the defendant. In Henry , the incriminating information was obtained with regards to the charges already pending against the defendant. In our case, Mr. Farris was neither a regular informant for the State, nor was he paid for the incriminating statements he obtained. All he was trying to do was to help prevent a murder. Further, the incriminating statements obtained were not with regard to the pending charges against the Appellant.
In Maine v. Moulton, 474 U.S. 159, 176 , 106 S.Ct. 477, 487 , 88 L.Ed.2d 481 (1985), the Supreme Court held 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.” See syllabus, Farruggia v. Hedrick, 174 W.Va. 58 , 322 S.E.2d 42 (1984). However, the Supreme Court went on to state that “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.” Id. 474 U.S. at 180 , 106 S.Ct. at 489 (emphasis added); see Illinois v. Perkins, 496 U.S. 292, 299 , 110 S.Ct. 2394, 2398 , 110 L.Ed.2d 243 (1990) (holding that there was no Sixth Amendment violation since “no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable”).
It is significant that in the present case, the trooper used Mr. Farris to pursue an investigation not involving the pending charges, but involving new charges to which the Appellant had subjected himself and for which the Appellant had not yet been indicted. Applying the analysis of the Supreme Court in Moulton , his Sixth Amendment right to an attorney had not yet attached concerning the conspiracy charges. See 474 U.S. at 180 , 106 S.Ct. at 489 . Moreover, other than driving Mr. Farris to Weston State Hospital, the trooper did nothing to aid him in obtaining the Appellant’s incriminating statements. Mr. Farris’ testimony indicated that he did not question the Appellant about the conspiracy, but merely asked the Appellant how he was doing. Finally, there is nothing in the record which indicates that Mr. Farris was a paid police informant or in any way received benefit from the State regarding his assistance.
In Kuhlmann v. Wilson, 477 U.S. 436 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986), a case similar to the present case, the police instructed an informant to listen to the accused in order to obtain the identities of the co-defendants. Id. at 439 , 106 S.Ct. at 2619. The only comment the informant made to the defendant was that after hearing the defendant’s story of what occurred concerning the crime committed, the informant remarked that the story “ ‘didn’t sound too good.’ ” Id. at 439-40, 106 S.Ct. at 2619-20. The Supreme Court, in finding that the defendant’s Sixth Amendment right to counsel had not been violated, instructed that
*498 the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation_ [A] defendant does not make out a violation of that right [to an attorney] 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 remarks.
Id. at 459, 106 S.Ct. at 2630 (citations omitted).
As in Kuhlmann , the Appellant in the present ease does not make out a violation of the Sixth Amendment right by merely showing that Mr. Farris reported the Appellant’s incriminating statements to the police. See id. The Appellant must show that Mr. Far-ris “took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.” Id. The Appellant failed to meet this burden.
Consequently, what should apply in the present case is the following law regarding a defendant’s Sixth Amendment rights as summarized by the United States Court of Appeals for the Fourth Circuit in United States v. Missler, 414 F.2d 1293, 1303 (4th Cir.1969), ce rt. denied, 397 U.S. 913 , 90 S.Ct. 912 , 25 L.Ed.2d 93 (1970):
The pendency of an indictment for one offense does not immunize a defendant from accountability for statements made after indictment in the commission of another crime, nor does it shield him from testimony concerning them. The cited cases forbid officers of the Government to elicit statements, out of the presence of counsel, from persons under indictment, and then to use those statements to convict them of the charges for which they were under indictment. They do not lay down a rule that persons under indictment may not be overheard and their statements repeated if the statements are of the nature of this appellant’s — verbal acts constituting an additional offense, not the one for which they were previously indicted.
See Thomas, 708 F.2d at 132 .
Even under the application of the four factors which the majority directs the circuit court to consider in determining whether to grant a motion to suppress incriminating statements obtained by an informant for police, but which the majority failed to apply to the facts of the present case, the Appellant’s statements would be admissible. Op. at 831. Trooper Cahill did not intentionally create a situation likely to induce the Appellant to make incriminating statements without his attorney present. The evidence demonstrated that Mr. Farris and the Appellant initiated their relationship and that the Appellant invited Mr. Farris to'visit him. Additionally, the statements were not related to the charges for which the Appellant had already been indicted. Moreover, the police and prosecuting attorney did not knowingly circumvent the defendant’s right to counsel because that right had not yet attached to the new charges. Finally, there was no showing that Mr. Farris took any action beyond visiting and listening which could constitute any attempt to deliberately elicit incriminating statements.
FIFTH AMENDMENT
The Appellant’s claim that obtaining the statement violated his Fifth Amendment right can be easily dismissed. 1 In Perkins, 496 U.S. at 292 , 110 S.Ct. at 2394 , a fellow inmate of defendant, Perkins, went to the police and told them that while he had been in prison with Perkins, Perkins told him about a murder which Perkins had committed. Based on this information, the police placed an undercover agent in a jail cellblock with Perkins, who was still incarcerated on charges unrelated to the murder in which the undercover agent was investigating. Id. at 294-95 , 110 S.Ct. at 2395-96 . When the undercover agent asked Perkins if he had killed anybody, Perkins made statements implicating himself in the murder. Id. The Supreme Court in holding that the statements were not obtained in violation of Perkins’ Fifth Amendment right stated:
*499 Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect.... When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking.... There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.
Id. at 296-97 , 110 S.Ct. at 2397 (citations .omitted).
Likewise, in United States v. Stubbs, 944 F.2d 828 (11th Cir.1991), the defendant Stubbs was arrested after she and her codefendant Edwards were searched by customs inspectors in the Miami airport. The search apparently uncovered cocaine planted on Edwards, while no contraband was found on the defendant. Id. at 830 . Edwards confessed immediately to her involvement and offered to assist a DEA agent in getting the defendant to “ ‘speak the truth,’ ” in return for his help on Edwards’ charges. Id. at 831 . Subsequently, the defendant and Edwards shared a jail cell and it was during this time that Edwards obtained incriminating statements from the defendant. The Stubbs court held that “[i]f the Fifth Amendment is not implicated when the incarcerated person speaks freely to an undercover agent, we see no justification for concluding the result should be different where, as here, the cellmate is not actually an undercover law enforcement agent but instead is — at best — a confidential informant.” Id. at 831-32 (footnote omitted). Moreover, the Eleventh Circuit concluded that “[f]or the same reasons that disposed of defendant’s Fifth Amendment compelled self-incrimination claim, Perkins [ 496 U.S. at 292 , 110 S.Ct. at 2394 ] defeats defendant’s argument that the circumstances of her conversation with her friend and fellow prisoner reflected compulsion and amounted to ‘interrogation’ for purposes of her Fifth Amendment right to counsel claim.” Id. at 832.
Thus, in the present case, the Appellant voluntarily placed Mr. Farris in his confidence and made incriminating statements to him. The evidence does not reflect that, based on the Appellant’s perception, he was in a police-dominated atmosphere or he was coerced into making these incriminating statements. Simply stated, the Appellant freely and voluntarily elicited and discussed his plans to conspire to commit murder with Mr. Farris and the only active participation by the State in obtaining these incriminating statements was giving Mr. Farris a ride to the facility housing the Appellant. The majority somehow equates the provision of transportation for Mr. Farris to deliberate elicitation of incriminating statements from the Appellant. When one threatens to commit murder, voices those threats to a third-party who is not a government agent, who in turn gives testimony of the statements, how can it be said that the suspect’s rights were in any way violated? There are certainly many instances where law enforcement authorities become overzealous in seeking evidence against suspects, and it is an important function for courts to intercede to protect the criminal suspect’s rights. Here, the law enforcement authorities were remarkably restrained, and proceeded cautiously “by the book.”
As the majority points out, due process prevents police from engaging in practices that “ ‘shock[ ] the conscience.’ ” Op. at 833 (quoting Rochin v. California, 342 U.S. 165, 172 , 72 S.Ct. 205, 209 , 96 L.Ed. 183 (1952)). They fail to give any import to the fact that in the “pristine” environment of Weston’s criminal unit, where murderers, rapists and sundry other violent individuals are housed, Mr. Leadingham was actively looking to hire a killer. The failure to have pursued this investigation in a lawful manner with the willing assistance of a citizen volunteer who by happenstance fell into a unique position to hear the Appellant conspire to commit murder would have been shocking to the conscience.
*500 Based on the foregoing opinion, I respectfully dissent.
. The majority does not even discuss the Fifth Amendment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9845254. Public record. Not legal advice.