In January of 2004, after a night spent abusing marijuana and methamphetamine Donnie Ray Ventris and his girlfriend Rhonda Theel went to the house of Ernest Hicks to confront him over rumors that he was abusing his girlfriend’s children. What happened inside the house remains clouded, with conflicting accounts but a few facts are undisputed. Hicks was shot to death and both Theel and Ventris made off with his truck, cell phone and several hundred dollars in cash. Ventris and Theel were apprehended a few days later, and Theel entered into a plea agreement to testify that Ventris was the shooter. The State charged Ventris with Felony Murder, Aggravated Burglary, Aggravated Robbery and misdemeanor theft. In a classic he-said she-said situation, both Ventris and Theel testified that the other had produced the gun and shot Hicks.
While in police custody, detectives had recruited Johnny Doser, a probation violator, to share a cell with Ventris and listen to what he had to say. In the course of the time they were in the cell together Ventris told Doser that he had been involved in a robbery that ‘went sour’ and that he had shot and robbed Hicks. At trial, Ventris’ attorney objected to Doser’s testimony arguing that his deliberate placement in the cell to have conversations with Ventris amounted to an interrogation without the benefit of counsel, a 6th Amendment violation. The State conceded the constitutional violation, but successfully persuaded the Trial Court that the testimony be allowed to impeach (i.e. contradict) Ventris’ testimony that Theel was the guilty party.
The jury acquitted Ventris of the murder and theft charges but convicted him of the robbery and burglary ones. Ventris appealed, and after losing in the Court of Appeals won a 6-1 decision of the Kansas Supreme Court, which held that statements obtained in breach of the 6th Amendment Right to Counsel are not able to be introduced at trial for any purposes at all. In reaching this decision, in an opinion by Justice Rosen, the Court looked at the history of 6th Amendment Right to Counsel claims, along with the history of exclusionary rules.
The Court found that some exclusionary rules (such as Miranda) are ‘prophylactic’ ones created to protect a constitutional right but not embodying a right in themselves. In these cases evidence may be admitted which was collected in breach of them to impeach the contradictory testimony of the accused, per existing U.S. Supreme Court precedent. It found in other cases where exclusionary rules are part of the constitutional right itself, that the exclusion was total. Noting that the United States Supreme Court had not ruled on this issue, it found that while most courts that had addressed it had ruled in the same way as the Trial Court, the Supreme Court of Maine had decided the issue the other way. Having discerned the two approaches it opted for the latter and blocked the admission of this type of evidence. The opinion itself dwells a great deal on the clandestine nature of the use of jailhouse informants. It notes that the 6th Amendment requires a defendant to make a knowing and voluntary waiver of their right to counsel once prosecution has commenced and holds that this cannot happen with an undercover informant.
Chief Justice McFarland dissented. In her view not only was the evidence admissible, but the State was wrong to have accepted that the evidence was obtained in violation of any constitutional right. She felt that an argument could me made to allow it in the main case. Her argument was that the U.S. Supreme Court’s case law on the subject was driven by the issue of whether the statements were made voluntarily or not (in this case they clearly were), and that they would only be barred if involuntarily made.