556 U.S. 586 (2009), 07-1356, Kansas v. Ventris

Docket Nº:07-1356.
Citation:556 U.S. 586, 129 S.Ct. 1841, 173 L.Ed.2d 801, 77 U.S.L.W. 4362
Party Name:KANSAS, Petitioner, v. Donnie Ray VENTRIS.
Case Date:April 29, 2009
Court:United States Supreme Court

Page 586

556 U.S. 586 (2009)

129 S.Ct. 1841, 173 L.Ed.2d 801, 77 U.S.L.W. 4362

KANSAS, Petitioner,


Donnie Ray VENTRIS.

No. 07-1356.

United States Supreme Court

April 29, 2009

Argued January 21, 2009

[129 S.Ct. 1842] Syllabus [*]

Respondent Donnie Ray Ventris and Rhonda Theel were charged with murder and other crimes. Prior to trial, an informant planted in Ventris's cell heard him admit to shooting and robbing the victim, but Ventris testified at trial that Theel committed the crimes. When the State sought to call the informant to testify to his contradictory statement, Ventris objected. The State conceded that Ventris's Sixth Amendment right to counsel had likely been violated, but argued that the statement was admissible for impeachment purposes. The trial court allowed the testimony. The jury convicted Ventris of aggravated burglary and aggravated robbery. Reversing, the Kansas Supreme Court held that the informant's statements were not admissible for any reason, including impeachment.


Ventris's statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial. Pp. 1845 -1847.

(a) Whether a confession that was not admissible in the prosecution's case in chief nonetheless can be admitted for impeachment [129 S.Ct. 1843] purposes depends on the nature of the constitutional guarantee violated. The Fifth Amendment guarantee against compelled self-incrimination is violated by introducing a coerced confession at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U.S. 450, 458-459, 99 S.Ct. 1292, 59 L.Ed.2d 501. But for the Fourth Amendment guarantee against unreasonable searches or seizures, where exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee, admissibility is determined by an exclusionary-rule balancing test. See Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503. The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See, e.g., Harris v. New York, 401 U.S. 222, 225-226, 91 S.Ct. 643, 28 L.Ed.2d 1. The core of the Sixth Amendment right to counsel is a trial right, but the right covers pretrial interrogations to ensure that police manipulation does not deprive the defendant of " 'effective representation by counsel at the only stage when legal aid and advice would help him.'" Massiah v. United States, 377 U.S. 201, 204, 84 S.Ct. 1199, 12 L.Ed.2d 246. This right to be free of uncounseled interrogation is infringed at the time of the interrogation, not when it is admitted into evidence. It is that deprivation

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that demands the remedy of exclusion from the prosecution's case in chief. Pp. 1845 -1846.

(b) The interests safeguarded by excluding tainted evidence for impeachment purposes are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." Stone v. Powell, 428 U.S. 465, 488, 96 S.Ct. 3037, 49 L.Ed.2d 1067. Once the defendant testifies inconsistently, denying the prosecution "the traditional truth-testing devices of the adversary process," Harris, supra, at 225, 91 S.Ct. 643, is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment. In every other context, this Court has held that tainted evidence is admissible for impeachment. See, e.g., Oregon v. Hass, 420 U.S. 714, 723, 95 S.Ct. 1215, 43 L.Ed.2d 570. No distinction here alters that balance. Pp. 1846 -1847.

285 Kan. 595, 176 P.3d 920, reversed and remanded.

Nicole A. Saharsky for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Matthew J. Edge, for respondent.

Steve Six, Attorney General of Kansas, Stephen R. McAllister, Solicitor General, State of Kansas (Counsel of Record), Jared S. Maag, Deputy Solicitor General, State of Kansas, Topeka, KS, for Petitioner.

Matthew J. Edge, Counsel of Record, Randall L. Hodgkinson, Kansas Appellate Defender Office, Topeka, KS, for Respondent.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined.

[129 S.Ct. 1844] OPINION

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We address in this case the question whether a defendant's incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant's conflicting statement.


In the early hours of January 7, 2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash.

The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks's truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks's home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the

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murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter.

Prior to trial, officers planted an informant in Ventris's holding cell, instructing him to "keep [his] ear open and listen" for incriminating statements. App. 146. According to the informant, in response to his statement that Ventris appeared to have "something more serious weighing in on his mind," Ventris divulged that "[h]e'd shot this man in his head and in his chest" and taken "his keys, his wallet, about $350.00, and . . . a vehicle." Id., at 154, 150.

At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris's prior contradictory statement; Ventris objected. The State conceded that there was "probably a violation" of Ventris's Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation "doesn't give the Defendant . . . a license to just get on the stand and lie." Id., at 143. The trial court agreed and allowed the informant's testimony, but instructed the jury to "consider with caution" all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts.

The Kansas Supreme Court reversed the conviction, holding that "[o]nce a criminal prosecution has commenced, the defendant's statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant's testimony." 285 Kan. 595, 606, 176 P.3d 920, 928 (2008). Chief Justice McFarland dissented, id., at 611, 176 P.3d, at 930. We granted the State's petition for certiorari, 554 U.S.__, 129 S.Ct. 29, 171 L.Ed.2d 931 (2008).

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The Sixth Amendment, applied to the States through the Fourteenth Amendment, guarantees that "[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence." The core of this right has historically [129 S.Ct. 1845] been, and remains today, "the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial." Michigan v. Harvey, 494 U.S. 344, 348, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990). We have held, however, that the right extends to having counsel present at various pretrial "critical" interactions between the defendant and the State, United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), including the deliberate elicitation by law enforcement officers (and their agents) of statements pertaining to the charge, Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The State has conceded throughout these proceedings that Ventris's confession was taken in violation of Massiah's dictates and was therefore not admissible in the prosecution's case in chief. Without affirming that this concession was necessary, see Kuhlmann v. Wilson, 477 U.S. 436, 459–460, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), we accept it as the law of the case. The only question we answer today is whether the State must bear the additional consequence of inability to counter Ventris's contradictory testimony by placing the informant on the stand.


Whether otherwise excluded evidence can be admitted for purposes of impeachment depends upon the nature of the constitutional guarantee that is violated. Sometimes that explicitly mandates exclusion from trial, and sometimes it does not. The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U.S. 450, 458-459, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979). The Fourth Amendment,

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on the other hand, guarantees that no person...

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