State v. Leadingham

438 S.E.2d 825, 190 W. Va. 482

• Court: West Virginia Supreme Court
• Decided: December 15, 1993
• Docket: 21678
• Status: Published

Opinions

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. Lead-ingham 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. Leading-ham 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. Leading-ham 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. Leading-ham 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 trial⁷ 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. Lead-ingham’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. Lead-ingham 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 certio-rari, 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, 66 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 incarcerated.

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’ adversaries.

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 explained:

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 (footnotes omitted).¹¹

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.¹² 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 remarks.

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 251.¹³ 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 in-duce 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.¹⁴ 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. Lead-ingham’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[.]”¹⁵ 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 scanner.¹⁶

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” ¹⁷ which “occurs from mental illness[,]” and that he “would need continued and ongoing psychiatric care and supervision.”¹⁸ Moreover, in his court assessment, conducted on March 29, 1991,¹⁹ 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.”²⁰ Thus, Mr. Leadingham’s mental condition was clearly in question at the time Mr. Far-ris 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).²¹ 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 of counsel.

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 psychiat■ric examinations except upon advice of counsel.”

Moreover, W.Va.Const. art. Ill, § 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 law5 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).²² 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 [72 S.Ct. 205, 209, 96 L.Ed. 183] (1952),²³ or interferes with rights ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325-326 [58 S.Ct. 149, 151-152, 82 L.Ed. 288] (1937).” United States v. Salerno, 481 U.S. , 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).²⁴ 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. Ill, § 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 hon- or 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 evaluation.

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.²⁵ Therefore, we shall remand this case to the circuit court for a new trial.²⁶

III.

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. Leading-ham objects to the following statements by the prosecuting attorney in closing argument, and asserts that they were clearly prejudicial:

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 Mil it. And you can Mil it by a verdict of not guilty or you can save it. And you can tell Mrs. Lead-ingham 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 protect them.

However, as pointed out by the State, the circuit court gave a curative instruction to the jury.²⁷ The circuit court instructed that:

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, 186 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 tMs 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. 665, 280 S.E.2d 288 (1981).

IV.

Mr. Leadingham’s final assignments of error, which were only briefly discussed in Ms appeal brief, involve first, whether the circuit court erred in permitting the state to call Ms former treating psychiatrist to give an opinion beyond those reached by the psycMatrist during Ms 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 insamty based upon the court-ordered evaluation by Weston State Hospital.

Mr. Leadingham contends that by calling Ms treating psycMatrist, Basil Roebuck, M.D., and allowing him to testify against Mr. Leadingham as an expert,²⁸ 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. Leading-ham, but that he objected to him being allowed to testify regarding Mr. Leadingham’s competency and legal sanity. Mr. Leading-ham’s counsel believed Dr. Roebuck could testify regarding his treatment of Mr. Lead-ingham 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 sanity.

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. Leading-ham’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.

V.

For the reasons stated herein, we reverse and remand this case to the circuit court for a new trial.

Reversed and Remanded.

1 . Mr. Farris was incarcerated from November 2, 1990, until March 15, 1991.

2 . Mr. Farris testified that Mr. Leadingham approached him while he was incarcerated in the Raleigh County jail, and that he did not know Mr. Leadingham prior to that time. Mr. Farris testified that they became cellmates, and that Mr. Leadingham told him that his wife "was trying to take everything he had and that he wanted her done away with.” Mr. Farris stated that Mr. Leadingham said "[h]e wanted her shot, and he wanted her shot three times in the chest and twice in the headf,]” with "[a] .22 pistol” that had a "silencer."

On cross-examination, Mr. Farris testified that, while they were in jail, Mr. Leadingham did not ask Mr. Farris to kill his wife.

3 . We note that the prosecuting attorney apparently also met with Mr. Farris. Mrs. Elizabeth Farris testified that she and her husband met "a couple of times in her office[.]”

4 . The following conversation between Mr. Farris and Mr. Leadingham was recorded by Mr. Far-ris:

WALTER FARRIS: Hey, I’m going to come up and visit you Friday.

[MR. LEADINGHAM]: Do what?

WALTER FARRIS: I’m going to come up and visit you Friday.

[MR. LEADINGHAM]: Well, come on up, man.

WALTER FARRIS: Are you sure?

[MR. LEADINGHAM]: Sure, hell, yeah. If you do now, have Pat to call and make arrangements like she did, so you’ll get more than one hour. We’ll get a couple of hours together, see.

(emphasis added).

Interestingly, in that same tape-recorded conversation, Mr. Farris told Mr. Leadingham "Well, like I told you, man, you know, if you ever need anything done, I’m out of jail now.” In the same telephone conversation, Mr. Farris again stated "Yeah, if you need anything done, you know, like I was talking to you the other night ... we’ll take care of that.”

5 .Mr. Farris testified that he spoke with Mr. Leadingham alone during the visit, and that Mr. Leadingham told him that, instead of his wife, he wanted his wife's attorney shot "three times in the chest and twice in the head.”

We point out, however, that at the time Mr. Farris went to visit Mr. Leadingham at Weston State Hospital, it does not appear that the alleged conspiracy to commit murder existed. It was not until Mr. Leadingham purportedly asked Mr. Farris to kill his wife’s attorney that an overt act was taken by a member of the conspiracy to effect the object of that conspiracy. State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988).

6 . Mr. Farris testified that Mr. Leadingham told him where the attorney's office was and described “a catwalk where he came out of.”

7 . The State, in this appeal, represents that the motion for a continuance was based upon Mr. Leadingham's request to join the charges for which he was currently standing trial with the charges involved in the murder conspiracy.

8 . We note that counsel on behalf of Mr. Leading-ham sought to suppress all statements made by him to Mr. Farris on and after March 22, 1991. In this appeal, however, he seeks to have suppressed all statements made by him to Mr. Farris on and after March 29, 1991.

9 . Mr. Leadingham contends that his fifth and sixth amendment rights to counsel were violated because the State deliberately elicited information from him through an undercover agent in the absence of counsel. Mr. Leadingham contends that Trooper Cahill had knowledge of the charges against him, and encouraged Mr. Farris, with the approval of the prosecutor, to elicit statements from him.

The State asserts that Mr. Farris was not a police informant when Mr. Leadingham initiated a conversation with him in jail, and that he did not gain Mr. Leadingham's confidence because of any police action or any "deals" for his cooperation. The State contends that Mr. Leading-ham was the one who asked Mr. Farris to come see him at Weston State Hospital. Furthermore, the State maintains that Mr. Farris did not say anything to Mr. Leadingham which was designed to deliberately elicit incriminating statements. Finally, the State asserts that the information obtained by Mr. Farris did not relate to the charges already pending against Mr. Leading-ham, but instead involved a new investigation regarding the conspiracy to commit murder.

10 . This Court, in a similar case, reached the same conclusion as the Massiah Court. Farruggia v. Hedrick, 174 W.Va. 58, 322 S.E.2d 42 (1984). We held in the syllabus of Farruggia:

The Sixth Amendment to the Constitution of the United States prohibits the use at trial of incriminating statements made by a defendant to an accomplice after indictment and without the assistance of counsel when the accomplice was cooperating with the police and was equipped secretly to transmit and record the conversation.

11 . The Court noted that "[ijncrimmating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses." Id. 474 U.S. at 180 n. 16, 106 S.Ct. at 489 n. 16, 88 L.Ed.2d at 499 n. 16.

12 . The trial court had found, after hearing the testimony of the informant and the detective, that the detective instructed the informant 'to ask no questions of [defendant] about the crime but merely to listen as to what [defendant] might say in his presence.’ Id. 477 U.S. at 440, 106 S.Ct. at 2620, 91 L.Ed.2d at 372.

13 .The Court further stated that "[c]oercion is determined from the perspective of the suspect.” Id. 496 U.S. at 296, 110 S.Ct. at 2397, 110 L.Ed.2d at 251.

14 . Trooper Cahill testified that, prior to that time, he had never sent an undercover informant into Weston State Hospital.

15 . Trooper Cahill testified that the hospital personnel were "just paranoid.”

16 . Trooper Cahill testified that the hospital staff "all but did a strip search on [Mr. Farris].”

17 . Dr. Hirani stated in his report that Mr. Lead-ingham has been prescribed the drug Lithium, and that "[h]e will be able to be maintained on the Lithium on a consistent basis with monitoring of his blood Lithium level.”

18 . Dr. Hirani found Mr. Leadingham to be competent to stand trial and reported that he was "aware of the nature and gravity as well as the consequences of the crimes for which he is charged.”

19 . We note that this court assessment was conducted on March 29, 1991, the day of Mr. Farris' second visit to Mr. Leadingham at Weston State Hospital when it is alleged that Mr. Leadingham asked Mr. Farris to kill his wife's attorney.

20 . Dr. Solomon also found Mr. Leadingham to be competent to stand trial "in spite of his fairly serious affective disorder.”

21 . We also recognized in Jackson that a psychiatrist who examines the defendant for the State is for all purposes an officer of the State and is similar to any police officer when questioning the defendant. 171 W.Va. at 333, 298 S.E.2d at 870. We therefore held that "a pre-trial psychiatric examination is a 'custodial interrogation’ by a state agent.” Id. at 334, 298 S.E.2d at 871. Our holding in this regard is consistent with Rule 12.2(c) of the West Virginia Rules of Criminal Procedure, which provides, in pertinent part:

No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony.

22 . The Supreme Court pointed out in Reno that " '[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’ " - U.S. at-, 113 S.Ct. at 1447, 123 L.Ed.2d at 16 (citations omitted).

23 . In Rochin the Supreme Court explained:

Regard for the requirements of the Due Process Clause ‘inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ Malinski v. New York, supra [324 U.S. 401] at 416-417 [65 S.Ct. 781, at 789, 89 L.Ed. 1029],

342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183, 188.

24 . The Third Circuit of the United States Court of Appeals relied upon the Due Process Clause in United States v. Triggs, 588 F.2d 373 (3d Cir.1978), a case involving entrapment. In finding that "[fjundamental fairness does not permit [the court] to countenance” the "egregious conduct ... of the government agents,” the court cited the concurring opinion of- Justice Powell in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976):

‘Due Process in essence means fundamental fairness, and the Court’s cases are replete with examples of judgments as to when such fairness has been denied an accused in light of all the circumstances.... The fact that there is sometimes no sharply defined standard against which to make these judgments is not itself a sufficient reason to deny the federal judiciary’s power to make them when warranted by the circumstances.... Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the "chancellor’s" "fastidious squeamishness or private sentimentalism.” ’

588 F.2d at 381 (citation omitted).

25 . We note that where the incriminating statements elicited from the defendant by an undercover agent concern a new crime for which the defendant has not been indicted, such statements may be admissible in the trial of the new crime. Mealer v. Jones, 741 F.2d 1451 (2d Cir.1984), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985); United States v. Missler, 414 F.2d 1293 (4th Cir.1969), cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); United States v. Lisenby, 716 F.2d 1355 (11th Cir.1983), cert. denied, Capo v. United States, 460 U.S. 1092, 103 S.Ct. 1793, 76 L.Ed.2d 359 (1983). We caution, however, that where those statements are unlawfully obtained, such as in the case now before us, they would not be admissible.

26 . We do not address Mr. Leadingham’s assertion that the circuit court erred in refusing to direct a verdict of not guilty on the charge of conspiracy to commit murder in that there was insufficient evidence because we are remanding this case for a new trial.

We further note that, while the defendant has requested that all statements he made on or after March 29, 1991, be suppressed, our holding today is limited to those statements obtained from him while he was in Weston State Hospital for a court-ordered psychiatric evaluation.

27 . When counsel on behalf of Mr. Leadingham objected to the State’s closing argument and requested a mistrial, the circuit judge, in overruling the motion, stated that he would "admonish the jury.”

28 . The question of whether a witness qualifies as an expert rests in the sound discretion of the trial court, and the trial court's decision will not be reversed unless clearly wrong. State v. Hose, 187 W.Va. 429, 419 S.E.2d 690 (1992); State v. Baker, 180 W.Va. 233, 376 S.E.2d 127 (1988).