Review of the judgment of the Court of Appeals in an unpublished opinion filed September 15, 2006. Appeal from Montgomery district court; RAWLEY (JUDD) DENT II, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.
1. Once a criminal prosecution has commenced, a 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.
2. Without a knowing and voluntary waiver of the right to counsel, the admission of a defendant's uncounseled statements to an undercover informant who is acting as a State agent violates the defendant's Sixth Amendment rights.
3. The test for Sixth Amendment violations is whether the defendant knowingly and voluntarily waived the right to counsel.
4. Waiver is valid only when it reflects an intentional relinquishment or abandonment of a known right or privilege.
5. The erroneous admission of evidence in violation of a constitutional right is governed by the federal constitutional error rule, which provides that an error is harmless only if the reviewing court is able to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the outcome of the trial.
6. When analyzing a district court's decision to admit evidence, an appellate court first considers whether the evidence is relevant. Once relevance is established, the court applies the evidentiary rules either as a matter of law or in the exercise of the district court's discretion, depending on the contours of the rule in question.
7. An appellate court reviews the admission of evidence pursuant to K.S.A. 60-455 as a question of law, subject to de novo review.
8. When a party on appeal asserts an error without providing any argument or authority in support of that assertion, an appellate court will not address the appellant's assertion of error.
9. Pursuant to K.S.A. 60-455, evidence of other crimes and civil wrongs is not admissible if it is not relevant to a disputed material fact. Relevance is established by some material and logical connection between the asserted fact and inference or result it is intended to establish.
10. Res gestae has been rejected as a legal basis for admitting evidence.
11. Before admitting evidence of other crimes and civil wrongs, the district court must determine whether the evidence is relevant to any disputed material fact. If so, the court must then determine whether the evidence is more probative than prejudicial. If the district court concludes that the evidence survives these hurdles, it must give the jury a limiting instruction.
The opinion of the court was delivered by: Rosen, J.
Donnie Ventris petitioned this court to review the Court of Appeals' decision affirming his convictions for aggravated robbery and aggravated burglary. Ventris asserts that the district court improperly admitted impeachment testimony from a jailhouse informant who had been surreptitiously planted in his jail cell by the State; that the district court improperly admitted evidence in violation of K.S.A. 60-455; and that his sentence should be reversed because the determination of his criminal history was not proven to a jury beyond a reasonable doubt.
The following facts are taken from the Court of Appeals' decision:
"Sometime in the last part of 2003, Ventris met and began living with Rhonda Theel in a romantic relationship. At some point, Theel learned from another friend, Kim Eytcheson, about the victim in this case, Ernest Hicks. She heard that Hicks was abusing the children of his live-in girlfriend, Helen Cargile. She also heard that Hicks was wealthy and carried $500 to $600 on his person. Eytcheson was also a friend of Cargile.
"On January 6, 2004, and into the early morning hours of January 7, 2004, Theel and Ventris were using methamphetamine and marijuana at their home. Neither had slept for a couple of days. At approximately 6 a.m., Theel suggested to Ventris that they go to Hicks' residence so she could talk to Hicks about the alleged child abuse. Theel called Eytcheson to find out when Cargile's children left for school. Theel also called another friend, Martha Denton, and asked Denton to meet her and Ventris at 'Pump Station Road.' Theel wanted Denton to give her and Ventris a ride to Hicks' residence, because she thought it would be best not to drive Ventris' car all the way to Hicks' house.
"Denton did not know why Theel wanted to meet her at Pump Station Road. Nevertheless, she proceeded to the meeting place with her boyfriend, Keith Holt. By this time, Ventris and Theel had arrived at the meeting place in Ventris' truck and began watching Hicks' residence, waiting for Cargile to leave with her children. When Denton and Holt arrived, Theel asked Holt to take her and Ventris to Hicks' residence and told Denton to take Ventris' truck with her. Denton and Holt complied.
"Theel gave Holt directions to Hicks' residence. She also told him that she and Ventris were going there so a guy could show them a dog. As they arrived at Hicks' residence, Theel noted that Hicks' truck was in the driveway and told Holt to drive past the house, turn around, head back towards the residence, and turn into the driveway next to Hicks' truck. Ventris 'never said a word.'
"After Holt pulled into the driveway, Theel exited the vehicle and told Ventris to wait while she went to the door and knocked. Theel had also told Holt he could leave, because the guy living at the house was supposed to give her and Ventris a ride back. According to Holt's trial testimony, Ventris waited behind a black pickup while Theel knocked on the door. As Holt pulled out of the driveway, he saw Ventris pull a ski mask down over his face, but Holt could not tell whether the ski mask left Ventris' face open or covered everything but his eyes. The outside temperature was 5 to 10 degrees that morning.
"While Theel and Ventris were inside Hicks' residence, one or both of them shot and killed Hicks with a .38 revolver, took his wallet containing approximately $300, and a cell phone. Theel drove herself and Ventris in Hicks' truck to a secluded spot in Oklahoma where she sprayed the truck with cleaner to get rid of any fingerprints. The two of them then walked to a convenience store. On the way, Theel tried unsuccessfully to disassemble the murder weapon. One of them disposed of the gun in a culvert.
"At the convenience store, Theel called Denton and asked her for a ride home. Denton and Holt eventually picked Theel and Ventris up at the store and took them back to their home in Kansas. Sometime later, Denton and Holt contacted the police after developing a suspicion that Theel and Ventris had something to do with Hicks' murder. Police arrested both Theel and Ventris and charged them each with several crimes.
"Theel entered into a plea bargain in exchange for her testimony against Ventris. Specifically, she pled guilty to aggravated robbery and aiding a felon. The State tried Ventris before a jury on charges of felony murder, aggravated robbery, aggravated burglary, felony theft, and misdemeanor theft. Theel, Ventris, and a former cellmate of Ventris' all testified at trial. Both Ventris and Theel denied taking a gun to Hicks' residence, and they both claimed the reason for going to the residence was for Theel to talk to Hicks about the alleged child abuse. However, each related a different version of the events that occurred after arriving at Hicks' residence.
"Highly summarized, Theel testified as follows. As she was waiting for Hicks to come to the door, she saw a frightened look on Hicks' face and then Ventris quickly passed her and entered the house. She then entered and almost immediately saw Hicks on the floor and Ventris standing over him. She heard them arguing. She then saw that Ventris had a .38 revolver and heard him ask Hicks about money. She attempted to stop the two from arguing by dousing them with a cleaner she retrieved from the kitchen and by also hitting Hicks with a stick. Hicks produced a wallet and Ventris said, 'All this for 40 or 50 dollars?' The two men walked to the bedroom after Hicks said he had more money there. Theel then heard two shots and saw Ventris come out of the bedroom. She claimed Ventris said, 'I have to shoot him again,' to which she responded, 'Okay.' According to her testimony, she then left the house and at some point heard a third shot. Ventris then came out of the house and threw Hicks' truck keys to her. She used the keys to gain access to Hicks' truck and drove herself and Ventris away from the scene.
"Ventris, as one might anticipate, offered a different version as follows. He testified that he only went with Theel on the day in question to 'shut her up' since she had been talking for days about Hicks committing child abuse. He denied hearing about Hicks and his money. He also denied taking a gun with him and did not know if Theel had one. He denied knowing that Theel had called Denton to arrange a ride, but he admitted going to the meeting place where they met Denton and Holt. There he and Theel entered Holt's car and traveled to Hicks' house. Once there, Hicks became agitated with Theel over her accusations of child abuse. A scuffle ensued between himself and Hicks, and Theel threw a liquid in Hicks' face and hit him with a stick. Theel then pulled out a gun and asked Hicks for his wallet. Ventris asked her what she was doing, and she replied that he should mind his own business. Hicks said his wallet was in the bedroom, and she told him to go get it. Theel and Hicks went into the bedroom, and Theel shot him. Ventris started to leave and then heard two more shots. He denied taking anything with him when he left. He got into the truck with Theel only after she said she would take him to his truck. Nevertheless, they continued on to a gas station where he purchased gas with money Theel gave him.
"As stated earlier, the State also offered at trial the testimony of Johnnie Doser, Ventris' former cellmate, as a rebuttal witness. Prior to trial, the State recruited Doser to share a cell with Ventris and to 'keep [his] ear open and listen' for incriminating statements. According to Doser, Ventris told him that he and his girlfriend 'went to rob somebody and that it went sour.' Ventris allegedly said he shot a guy in the head and chest and took his keys, his wallet, about $350, and a vehicle. In exchange for Doser's testimony, the State released him from probation. Ventris objected to the testimony, claiming the State had obtained the statements in violation of his Sixth Amendment right to counsel. The State conceded the Sixth Amendment violation but argued the testimony could be used for impeachment purposes. The trial court allowed Doser to testify.
"Prior to closing arguments, the trial court instructed the jury to 'consider with caution' the testimony of both Doser and Theel. The jury deliberated for approximately 2 hours and acquitted Ventris of felony murder and misdemeanor theft. However, the jury found him guilty of aggravated burglary and aggravated robbery. The court had previously dismissed the felony theft charge due to a lack of evidence. Later, the court sentenced Ventris to 247 months for aggravated robbery and 34 months for aggravated burglary." Slip op at 3-8, State v. Ventris, No. 94,002, unpublished opinion filed September 15, 2006.
The Court of Appeals affirmed Ventris' convictions and sentences. Ventris, slip op. at 17. Ventris petitioned this court to review the Court of Appeals' decision, and we granted his petition.
For his first issue, Ventris claims that the district court erroneously admitted testimony from his former cellmate, who had been surreptitiously placed in Ventris' jail cell to obtain incriminating statements. Ventris claims that his former cellmate's testimony violated his Sixth Amendment right to counsel.
When an appellate court reviews the district court's decision regarding the suppression of evidence, it gives deference to the trial court's factual findings but applies a de novo standard to the ultimate legal determination of whether the evidence should have been suppressed. State v. Coleman, 275 Kan. 796, 805, 69 P.3d 1097 (2003).
The State concedes that it violated Ventris' Sixth Amendment right to counsel when it surreptitiously planted Doser in Ventris' jail cell as a human listening device. Nevertheless, the State argues that the evidence is only precluded from its case-in-chief. The State asserts that it can use the illegally obtained statements in rebuttal to impeach Ventris' testimony.
To support its argument, the State relies on Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1, 91 S.Ct. 643 (1971). In Harris, the defendant was charged with selling heroin to an undercover police officer. After Harris was arrested, he made several incriminating statements to the officers without the benefit of proper Miranda warnings. Harris testified in his defense, stating that he had sold baking powder to the officers as part of a scheme to defraud drug purchasers. On cross-examination, the State attempted to impeach Harris' testimony by inquiring about several contradictory statements Harris had made after his arrest. The State conceded that the statements were inadmissible in its case-in-chief because they were obtained without Miranda warnings but asserted that the statements were admissible for impeachment. 401 U.S. at 223-24.
In a five-to-four decision, the United States Supreme Court agreed with the State. Harris, 401 U.S. at 224-25. The Harris Court relied on Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (1954), which allowed the admission of illegally obtained physical evidence to impeach the defendant even though the evidence was not admissible in the government's case-in-chief. Harris, 401 U.S. at 224-26. Stating that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from risk of confrontation with prior inconsistent utterances," the Harris Court concluded that the Court's truth-seeking function outweighed the protection against self-incrimination afforded by Miranda. 401 U.S. at 226.
In Oregon v. Hass, 420 U.S. 714, 43 L.Ed. 2d 570, 95 S.Ct. 1215 (1975), the United States Supreme Court extended the holding in Harris to include statements made in violation of a defendant's Fifth Amendment right to counsel. Hass was arrested for stealing bicycles. The police advised Hass of his Miranda warnings at the time of his arrest. Hass requested to speak with his attorney and was advised that he could call an attorney when they arrived at the police office. On the way to there, Hass pointed out the houses where the bicycles had been stolen and the location of a stolen bicycle. At trial, Hass testified that he did not know his friends were going to steal bicycles or from where the bicycles had been stolen. To impeach this testimony, the State admitted the statements Hass had made after his arrest. 420 U.S. at 715-17. The Hass Court affirmed the use of the defendant's statements to impeach his testimony, finding no evidence or suggestion that the statements were involuntary or coerced. 420 U.S. at 722.
This court has applied the United States Supreme Court's analysis in Harris and Hass. In State v. Osbey, 213 Kan. 564, 573-74, 517 P.2d 141 (1973), the defendant claimed that the trial court erroneously admitted portions of his confession because there had been no hearing outside the presence of the jury to determine the voluntariness of the confession. Relying on Harris, the State claimed that the confession was properly admitted as rebuttal evidence to impeach the defendant. The Osbey court agreed with the State, concluding that the statements were properly admitted as rebuttal evidence even though they were not admissible in the State's case-in-chief. 213 Kan. at 574. See also State v. Andrews, 218 Kan. 156, 159, 542 P.2d 325 (1975) (same issue).
The facts in State v. Boone, 220 Kan. 758, 768-69, 556 P.2d 864 (1976), are similar to those in Hass. Boone requested to speak with an attorney after he was arrested and the officers had given him Miranda warnings. However, before Boone had an opportunity to talk to an attorney, the officers obtained a statement from Boone regarding his whereabouts prior to his arrest. At trial, Boone testified differently about his whereabouts before his arrest, and the State offered the officer's testimony to impeach him. The Boone Court relied on Harris and Hass in concluding that the evidence was properly admitted to impeach Boone, even though it was inadmissible in the State's case-in-chief. Boone, 220 Kan. at 768-69. See also State v. Graham, 244 Kan. 194, 203-04, 768 P.2d 259 (1989) (allowing statements made without Miranda warnings to be used to impeach the defendant's testimony); State v. Greene, 214 Kan. 78, 82, 519 P.2d 651 (1974) (admitting statements made with improper Miranda warnings to be used for impeachment); State v. Robinson, 4 Kan. App. 2d 428, 433, 608 P.2d 1014 (1980) (assuming that the defendant did not properly and effectively waive his Miranda rights but allowing the State to use the statements to impeach the defendant); State v. Stoops, 4 Kan. App. 2d 130, 134-35, 603 P.2d 221 (1979) (affirming the admission of statements made to police after the defendant invoked his right to counsel to impeach the defendant). Cf. State v. Roberts, 223 Kan. 49, 57-58, 574 P.2d 164 (1977) (distinguishing Harris and Hass and precluding the admission of involuntary statements to impeach the defendant).
In keeping with its decisions in Harris and Hass, the United States Supreme Court extended the Fifth Amendment analysis to a Sixth Amendment issue in Michigan v. Harvey, 494 U.S. 344, 350-51, 108 L.Ed. 2d 293, 110 S.Ct. 1176 (1990). Two months after Harvey had been arraigned on two counts of rape, he told a police officer that he would like to make another statement but did not know if he should talk to his attorney. The officer told Harvey that he did not need to speak with his attorney because his attorney would get a copy of the statement anyway. After signing portions of a constitutional rights waiver indicating that he understood his right to remain silent and have an attorney present during the questioning, Harvey made statements that were inconsistent with his later trial ...