State v. Gross , 417 P.3d 1049 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
Nos. 113,275
113,276
113,277
113,278
STATE OF KANSAS,
Appellee,
v.
GLENN D. GROSS,
Appellant.
SYLLABUS BY THE COURT
1.
Generally, appellate courts require a party to submit an issue to the trial court—
that is, to preserve an issue—before the issue can be raised on appeal. Nevertheless,
because that general practice is prudential, rather than jurisdictional, courts do not draw a
bright line. Three recognized exceptions allow an appellate court to consider an issue
raised for the first time on appeal if: (1) The newly asserted claim involves only a
question of law arising on proved or admitted facts and is determinative of the case;
(2) consideration of the claim is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; or (3) the district court is right for the wrong reason.
2.
A defendant who asserts a violation of K.S.A. 2017 Supp. 22-3302(7), which
addresses a criminal defendant's right to be present during competency proceedings, may
raise the issue on appeal for the first time because the allegation involves a potential
deprivation of the due process guaranteed by law, and the right to due process is a
fundamental right.
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3.
K.S.A. 2017 Supp. 22-3302 does not mandate that the defendant be present when
the discussion concerns whether to hold a competency hearing.
Review of the judgment of the Court of Appeals in an unpublished opinion filed May 27, 2016.
Appeal from Saline District Court; JEROME P. HELLMER, judge. Opinion filed May 25, 2018. Judgment of
the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
Anna M. Jumpponen, assistant county attorney, argued the cause, and Ellen Mitchell, county
attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Glenn D. Gross asks us to determine whether K.S.A. 2017 Supp.
22-3302(7) granted him a right to be present when, during the first day of his trial, his
attorney spoke with the trial judge and the prosecutor about the attorney's concerns
regarding Gross' mental state. Gross' attorney did not ask explicitly for a competency
examination or a competency hearing, and this court has previously held "K.S.A.
22-3302 does not mandate that the defendant be present when the discussion concerns
whether to hold a competency hearing." State v. Perkins, 248 Kan. 760, 770, 811 P.2d
1142 (1991).
Nevertheless, Gross argues Perkins' analysis is inconsistent with the plain
language of 22-3302(7) and thus with the rubric this court currently employs when
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interpreting statutes. He asks us to overrule that holding or to at least determine it does
not apply to the facts of this case. We reject both arguments.
We conclude this court's holding in Perkins applies in this case, K.S.A. 2017
Supp. 22-3302 is ambiguous, and the statute's language does not clearly support Gross'
reading of its meaning. In light of those conclusions, the doctrine of stare decisis and 27
years of legislative acquiescence to this court's interpretation persuade us to reaffirm and
apply the Perkins holding.
FACTS AND PROCEDURAL HISTORY
The State filed four criminal cases against Gross for crimes he allegedly
committed while in the Saline County Jail. The trial judge consolidated the cases for trial.
Before trial, the judge ordered a competency evaluation based on his "own
knowledge and observation of Defendant in this matter." Central Kansas Mental Health
Center (CKMHC) performed the evaluation. The evaluator concluded Gross was
competent to stand trial, observing Gross "had no difficulty expressing himself verbally,"
understood the nature of the charges against him, understood court-related terms, and
would be able to assist his attorney. The evaluator also noted that Gross "expressed a
verbal understanding of appropriate behavior but verbalized that he chooses to behave in
a threatening and destructive manner despite any potential consequences."
After this evaluation had been performed, Gross gave notice of his intent to assert
a defense based on mental disease or defect. The State responded with its own motion for
a mental health evaluation, which the trial judge granted. Larned State Hospital
conducted an evaluation and submitted a report.
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Gross also filed a notice of waiver of his right to a jury trial in all four cases. Prior
to the start of the trial, the judge engaged in a colloquy to assure Gross had received the
advice of his attorney and was freely and voluntarily waiving his right to a jury trial.
During that colloquy, the judge asked Gross whether he was mentally ill or incompetent.
Gross replied, "Well, no I'm mentally ill[.] I have a lot of mental illnesses but you know."
The judge followed up and ultimately asked Gross: "[I]n other words, you are competent
and you may have an illness but you are competent[,] is that your understanding?" Gross
replied, "Yes." The judge accepted Gross' jury trial waiver and began to hear evidence.
Later in the day, Gross' attorney requested the conference that gives rise to the
issue on appeal. In chambers, Gross' attorney spoke to the trial judge and prosecutor
outside Gross' presence. Gross' attorney stated he wanted to make a record of his
"concerns regarding Mr. Gross' mental state currently. Obviously the Court [is] aware of
his outbursts that he has been making during the course of the trial so far." The attorney
then detailed other off-topic comments Gross made during the proceeding. For example,
Gross noticed his counsel used a Staples brand legal pad, which led to "discourse about
whether the owner of that company had not run for president at some time." At another
point, Gross noticed his counsel's watch and asked how old it was. Counsel indicated
these off-topic comments, the outbursts, and Gross' general conduct caused him to
question Gross' ability to assist in his own defense. The State asserted that the outbursts
were consistent with those made in the past, both prior to and since the mental health
evaluation that determined Gross was competent.
The trial judge responded by first noting he had observed Gross' demeanor
throughout the day. He then noted:
"Mr. Gross has been very actively participating in the assistance of counsel by
writing extensive notes, following the testimony of the witnesses and [as] the record
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indicates made certain verbal outbursts during the course of the testimony which reflects
his understanding of the testimony of the witness and his disagreement with the
witnesses['] testimony and bringing that to the attention of counsel.
"While [defense counsel's] points are of concern as his relationship with his
client would clearly be such that he would be more aware of the individual nuances of
Mr. Gross than the Court[, t]hat does not in the Court's mind rise itself to the level of any
concern for his competency[.] [A]nd we have had multiple opportunities for evaluations
of the competency of Mr. Gross[,] and while he may suffer from certain mental illness
they are not sufficient defects which would prevent him from participating in the process
of assisting counsel[.] [A]nd the record is clear that he is very actively assisting counsel
and responding actively and appropriately to his perception of the evidence being
presented by the witnesses called thus far.
"So the concern is noted on the record but the Court feels that Mr. Gross remains
in a capacity to proceed and participate and understand the proceedings that are before
the Court today."
On the second day of trial, which Gross attended, the State offered the CKMHC
evaluation and the Larned State Hospital report. Gross did not object, and the judge
admitted both reports. The judge then made "a formal finding . . . of competency on the
part of Mr. Gross since we have that determination by the appropriate mental Health
Agency."
The judge again addressed Gross' competency during the third day of trial. On that
day, Gross took the stand in his own defense. Gross' attorney questioned Gross about his
mental health history. The State raised objections, which the judge ruled on by stating:
"At this point in time the Court has found Mr. Gross to be competent to stand trial and to
assist counsel, we have that report from the Larned State Hospital confirming the same,
he has been able to be present and participate in all of the prior proceedings and he has
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done so appropriately assisting counsel in this regard[.] [S]o the Court has no concerns
about his competency or his ability to assist counsel in this matter or to recall his own
medical history and to testify about his medical history[.] [T]he Court certainly will allow
him to testify about his medical history and the information he has relative to the same."
Gross' competency did not come up again during the trial. After hearing all the
evidence, the judge convicted Gross of nine counts of criminal threat, two counts of
criminal damage to property, and three counts of battery against a county corrections
officer.
At sentencing, the judge again commented on Gross' competency:
"It has been abundantly established that Mr. Gross has from a very early age on been
diagnosed with and continues to suffer from severe mental illness[.] [I]t is also
abundantly established that this severe mental illness does not render him incompetent,
does not render him in a position where he cannot assist counsel, he has been found to be
competent to stand trial, he clearly understands right from wrong [as] he articulates to the
Court today."
Gross appealed to the Court of Appeals, raising two arguments: (1) The trial
judge violated K.S.A. 2017 Supp. 22-3302 by holding a chambers conference to discuss
concerns about his mental state and (2) the trial judge failed to properly ensure he
understood his right to a jury trial. The Court of Appeals rejected both arguments. Gross,
2016 WL 3031229, at *1-3.
Gross petitioned this court seeking review of both issues. We granted review of
Gross' claim that he should have been present during the in-chambers discussion of his
mental state, but we denied review of his claim regarding his waiver of his right to a jury
trial.
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ANALYSIS
Gross now asks us to reverse the Court of Appeals and the trial judge and to order
a retrospective competency hearing. He recognizes the Court of Appeals relied on
precedent of this court in ruling against him.
Indeed, the Court of Appeals noted it was bound by Perkins, 248 Kan. at 770, and
its holding that "K.S.A. 22-3302 does not mandate that the defendant be present when the
discussion concerns whether to hold a competency hearing." The Court of Appeals also
discussed a previous Court of Appeals decision, State v. Brockenshire, 26 Kan. App. 2d
902, 910, 995 P.2d 905, rev. denied 269 Kan. 935 (2000), in which the Court of Appeals
stated:
"The proceeding to determine whether to order a competency
evaluation pursuant to K.S.A. 22-3302(1) is not a critical stage of the
prosecution that requires the defendant's presence under the Sixth
Amendment. Neither the Constitution nor the statute requires that the
defendant have counsel to represent him or her at the proceeding.
Therefore, [a defendant's] Sixth Amendment right was not violated by
the fact he was not present at the proceeding to determine if a
competency evaluation was required."
Gross does not discuss Brockenshire in his petition for review or other briefs. In
fact, he did not ask us to consider what impact, if any, the Sixth Amendment to the
United States Constitution may have on the analysis. Gross' counsel reaffirmed at oral
argument that he was not asserting a constitutional violation. Therefore, we limit our
analysis to the statutory requirements of Kansas law.
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In that regard, Gross asks us to reconsider Perkins. Alternatively, he asks us to
conclude Perkins does not apply to his case. Before we address Perkins, however, we
must determine whether Gross preserved this issue for appellate review.
1. Is this Issue Preserved?
As Gross concedes, during the in-chambers hearing on the first day of trial, no one
questioned whether Gross should be present. Thus, the issue now before us was not
presented to the trial judge or ruled upon.
Generally, we require a party to submit an issue to the trial court—that is, to
preserve an issue—before it can be raised on appeal. Because this general practice is
prudential, rather than jurisdictional, appellate courts do not draw a bright line. State v.
Rizo, 304 Kan. 974, 978-79, 377 P.3d 419 (2016). Three recognized exceptions allow an
appellate court to consider a claim for the first time on appeal if:
"'(1) The newly asserted claim involves only a question of law arising on
proved or admitted facts and is determinative of the case;
(2) consideration of the claim is necessary to serve the ends of justice or
to prevent the denial of fundamental rights; or (3) the district court is
right for the wrong reason.' [Citations omitted.]" State v. Godfrey, 301
Kan. 1041, 1043, 350 P.3d 1068 (2015).
Gross asks us to recognize a new exception that would allow an issue to be raised
for the first time on appeal. Under this proposed exception, a defendant could raise the
issue if he or she had not been present when an alleged error occurred and did not have an
opportunity to personally assert a right to be or to have been present. We do not find it
necessary to create a new exception for this circumstance, however, because at least one
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of the recognized exceptions—specifically, the second exception listed above—applies
under the facts of this case.
Gross' challenge, if successful, would mean he had been denied a right granted by
statute and, thus, had been deprived of the due process guaranteed by law. Because of the
potential due process violation, we can conclude consideration of the claim is necessary
in order to prevent the denial of a fundamental right. See State v. Puckett, 230 Kan. 596,
600, 640 P.2d 1198 (1982). Additionally, we are not hindered by the lack of a trial court
ruling. When we interpret statutes, we do not give deference to trial court rulings because
we are considering a question of law that this court decides de novo. See Landrum v.
Goering, 306 Kan. 867, 872, 397 P.3d 1181 (2017). We, therefore, consider Gross'
arguments even though they are raised for the first time on appeal.
We turn next to Gross' arguments about Perkins, which he asserts lacks
precedential value. Although he primarily argues Perkins was wrongly decided, he also
argues Perkins is distinguishable. We begin with his second point because if Gross is
correct we would not need to discuss Perkins in more detail.
2. Does Perkins Apply?
Like Gross, Dennis D. Perkins raised his competency prior to trial. Perkins' trial
judge then ordered a competency evaluation. The first evaluation was inconclusive
because Perkins refused to cooperate. After a second attempt and a completed evaluation,
the trial judge found Perkins competent to stand trial.
Perkins' behavior during trial, like Gross', caused renewed concerns about
competency. After Perkins engaged in a lengthy outburst that resulted in a court order to
remove him from the courtroom, his attorney immediately moved for a mistrial. The trial
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judge denied the motion and then took a lunch recess. After lunch, Perkins refused to
return to the courtroom and asked to be returned to jail. The trial proceeded without him.
The next morning, in Perkins' absence and apparently without a determination of whether
Perkins should be present, his attorney renewed the motion for mistrial and requested a
third competency evaluation. The trial judge denied both motions.
On appeal, Perkins cited K.S.A. 22-3302 and argued he was denied his right to be
present during the in-chambers conference when his counsel asked for another
competency evaluation. The Perkins court noted: "The defense characterizes these in-
chambers discussions as proceedings regarding competency." Perkins, 248 Kan. at 769.
These facts make Perkins applicable to our current case. Both Perkins and Gross
had been subject to prior evaluations that resulted in a finding of competency. When their
behavior raised new concerns, defense counsel in both cases raised the topic of
competency outside their respective client's presence and without a determination of
whether they had waived their presence. In contrast to the facts of our current case,
Perkins' counsel more clearly requested a new evaluation. And both trial judges
concluded a new evaluation was not warranted. On appeal, both defendants characterized
the judge's ruling as a finding of competency. Given these commonalities, we find no
basis to meaningfully distinguish the hearing at issue in Perkins from the one at issue in
this appeal.
Generally, this conclusion means Perkins would control and the trial judge and the
Court of Appeals correctly applied it in the current case. Under Perkins' holding, "K.S.A.
22-3302 does not mandate that the defendant be present when the discussion concerns
whether to hold a competency hearing." Perkins, 248 Kan. at 770. Thus, under Perkins,
no statutory violation occurred when Gross was not present during the in-chambers
discussion between the judge and counsel on the first day of Gross' trial.
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Gross alternatively asks us to reconsider Perkins. He argues (1) the single case
cited by the Perkins court does not support Perkins' holding and (2) the Perkins court
ignored or twisted the plain language of 22-3302. We now turn to the first of these
questions.
3. Is Perkins Supported by the Single Case Cited After Its Relevant Holding?
The only case the Perkins court cited immediately after stating: "K.S.A. 22-3302
does not mandate that the defendant be present when the discussion concerns whether to
hold a competency hearing," was State v. Baker, 236 Kan. 132, 689 P.2d 803 (1984). See
Perkins, 248 Kan. at 770. Gross argues Baker is "inapposite to that key holding."
We first note the Baker court generally discussed when a criminal defendant's
constitutional right to be present applied. The court noted the right did not apply to all
aspects of a criminal proceeding. 236 Kan. at 136. After discussing several other alleged
violations of the right, the court turned to an instance similar to the one in this case.
In Baker, the defense raised an insanity defense and presented expert testimony
about the defendant's mental state. The "evidence was undisputed that the defendant was
suffering from . . . a severe mental illness." In an in-chambers conference outside Lila
Baker's presence, her attorney indicated Baker "was having trouble understanding the
proceedings. Counsel simply asked for the court's patience while he was talking to his
client." The Baker court noted: "It appears that counsel desired more time to better
explain things to defendant. Defense counsel did not suggest that there should be a new
competency hearing. This in-chambers conference should not be considered a
competency proceeding." 236 Kan. at 137. Given that conclusion, the Baker court found
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no merit in the assertion that K.S.A. 22-3302 guarantees a defendant's right to be present
during an in-chambers conference.
Baker does contrast with Perkins in that Baker's attorney did not ask for a
competency hearing, but Perkins' attorney did. Nevertheless, Baker's attorney raised the
issue of competence when he indicated his client was having trouble understanding the
proceedings. See K.S.A. 22-3301 ("[A] person is 'incompetent to stand trial' when he is
charged with a crime and, because of mental illness or defect is unable: (a) To
understand the nature and purpose of the proceedings against him; or (b) to make or assist
in making his defense."). Hence, we do not view Baker as being inapposite to Perkins.
We also note the similarity between Baker and the circumstances of this case.
While Baker's attorney raised concerns about the first grounds for finding a defendant
incompetent to stand trial—a failure to understand the proceedings—Gross' attorney
relied on the second grounds—an inability to assist in making the defense. See K.S.A.
22-3301. Thus, both expressed concerns about the defendant's competency, and neither
requested a competency evaluation.
Gross argues that, in contrast to Baker, when his counsel raised concerns about
Gross' competency everyone apparently understood that his counsel was requesting a
hearing. We are not convinced this conclusion is necessarily borne out by the record.
Certainly, both the prosecutor and the judge addressed their views on Gross' behavior and
demeanor. But, under K.S.A. 2017 Supp. 22-3302, both of them could have requested an
evaluation even when Gross' counsel did not. In fact, earlier in the proceedings, the judge
had sua sponte ordered an evaluation.
Thus, Baker, Perkins, and this case share a common characteristic of a hearing
related to whether to initiate a competency proceeding. Because the holdings in Baker
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and Perkins relate to that circumstance, they apply in this case. See Perkins, 248 Kan. at
769-70; Baker, 236 Kan. at 137.
Hence, we conclude that Baker supports Perkins' holding that not all conferences
at which the topic of competence is raised require the defendant's presence. Given that,
we turn to the question of whether Baker and Perkins correctly applied K.S.A. 2017
Supp. 22-3302(7).
4. Does K.S.A. 2017 Supp. 22-3302(7) Clearly Require Gross' Presence?
In arguing the Perkins court did not correctly apply K.S.A. 2017 Supp. 22-
3302(7), Gross argues the holding is contrary to the plain meaning of subsection (7) and,
in turn, is contrary to the rubric this court currently uses when facing questions of
statutory interpretation. We have explained that rubric by stating:
"'To divine legislative intent, a court begins by examining and
interpreting the language the legislature used. Only if that language is
ambiguous does a court rely on any revealing legislative history,
background considerations that speak to legislative purpose, or canons of
statutory construction. When a statute is plain and unambiguous, a court
merely interprets the language as it appears; a court is not free to
speculate and cannot read into the statute language not readily found
there.' [Citation omitted.]" State ex rel. Secretary of DCF v. Smith, 306
Kan. 40, 48, 392 P.3d 68 (2017).
As Gross argues, the Perkins court did not parse the words of 22-3302 and
consider whether plain meaning could be discerned. Nor did it decide whether the statute
contained ambiguities that required resorting to statutory construction. So what does the
language of the statute tell us?
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K.S.A. 2017 Supp. 22-3302(7) states: "The defendant shall be present personally
at all proceedings under this section." Here, Gross and the State debate the meaning of
the word "proceedings," which is not defined in the statute. In order to discern what the
Legislature may have meant, the parties discuss the context of subsection (7) as compared
to the use of "proceedings" in other subsections of the statute. They also contrast the use
of the word "proceedings" with the use of the word "hearing."
In relevant part, with these words emphasized, the entire statute, at the time of
Gross' trial and currently, states:
"(1) At any time after the defendant has been charged with a crime and before
pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting
attorney may request a determination of the defendant's competency to stand trial. If,
upon the request of either party or upon the judge's own knowledge and observation, the
judge before whom the case is pending finds that there is reason to believe that the
defendant is incompetent to stand trial the proceedings shall be suspended and a hearing
conducted to determine the competency of the defendant.
"(2) If the defendant is charged with a felony, the hearing to determine the
competency of the defendant shall be conducted by a district judge.
"(3) The court shall determine the issue of competency and may impanel a jury
of six persons to assist in making the determination. The court may order a psychiatric or
psychological examination of the defendant. . . . No statement made by the defendant in
the course of any examination provided for by this section, whether or not the defendant
consents to the examination, shall be admitted in evidence against the defendant in any
criminal proceeding. Upon notification of the court that a defendant committed for
psychiatric or psychological examination under this subsection has been found competent
to stand trial, the court shall order that the defendant be returned not later than seven days
after receipt of the notice for proceedings under this section. If the defendant is not
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returned within that time, the county in which the proceedings will be held shall pay the
costs of maintaining the defendant at the institution or facility for the period of time the
defendant remains at the institution or facility in excess of the seven-day period.
"(4) If the defendant is found to be competent, the proceedings which have been
suspended shall be resumed. If the proceedings were suspended before or during the
preliminary examination, the judge who conducted the competency hearing may conduct
a preliminary examination or, if a district magistrate judge was conducting the
proceedings prior to the competency hearing, the judge who conducted the competency
hearing may order the preliminary examination to be heard by a district magistrate judge.
"(5) If the defendant is found to be incompetent to stand trial, the court shall
proceed in accordance with K.S.A. 22-3303, and amendments thereto.
"(6) If proceedings are suspended and a hearing to determine the defendant's
competency is ordered after the defendant is in jeopardy, the court may either order a
recess or declare a mistrial.
"(7) The defendant shall be present personally at all proceedings under this
section." (Emphases added.) K.S.A. 2017 Supp. 22-3302.
In these various sections, the legislature has used the word "proceedings" in
different contexts. At several points, the context suggests the term "proceedings" refers to
all aspects of a criminal case. See K.S.A. 2017 Supp. 22-3302(1) (requiring the court to
suspend the proceedings if the trial court has reason to believe the defendant is not
competent to stand trial); K.S.A. 2017 Supp. 22-3302(3) (referring to "any criminal
proceeding"); K.S.A. 2017 Supp. 22-3302(4) (requiring proceedings that have been
suspended to be resumed if the defendant has been found to be competent); K.S.A. 2017
Supp. 22-3302(6) ("If proceedings are suspended and a hearing to determine the
defendant's competency is ordered after the defendant is in jeopardy, the court may either
order a recess or declare a mistrial.").
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At other points, when read in context, the term appears to relate to the hearing
conducted after a competency evaluation has occurred. See K.S.A. 2017 Supp.
22-3302(3) ("Upon notification of the court that a defendant committed for psychiatric or
psychological examination under this subsection has been found competent to stand trial,
the court shall order that the defendant be returned not later than seven days after receipt
of the notice for proceedings under this section.").
By the time subsection (7) references proceedings, the statute has described
multiple processes (criminal, competency, or both) using the same word. Sometimes the
statute specifies which process is intended, other times the process or processes may be
inferred. And other times we are left to guess whether the statute references criminal
proceedings, the hearing after a competency evaluation has been reported to the court, a
court's handling of a broader range of competency-related matters, or all of these
circumstances.
To help resolve this ambiguity, Gross focuses on the word "hearing." He then
argues the in-chambers conference during his trial was a "competency hearing." But
section (1) delineates the initial determination of whether there "is reason to believe that
the defendant is incompetent to stand trial," a determination that leads to the suspension
of the "proceeding," from the hearing that can lead to the criminal proceeding starting
again—i.e., the "hearing conducted to determine the competency of the defendant." And
section (2) seems to use "hearing" to refer only to the last step covered by 22-3302—that
is, the "hearing to determine the competency of the defendant."
Regarding how the distinction made in sections (1) and (2) apply in this case, here
the nature of the arguments and the court's statements related to whether, in the judge's
words, "Gross remains in a capacity to proceed." This indicates a discussion of whether
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another competency evaluation needed to be conducted—that is, a determination of
whether there was reason to believe Gross was incompetent—as opposed to a formal
determination of competency, which in context of the other sections of 22-3302 would
have been a formal proceeding conducted after an evaluation.
Given these multiple uses, we do not hesitate to declare K.S.A. 2017 Supp.
22-3302(7) ambiguous. Further, because of the context in which "proceeding" is used in
other portions of the statute, we do not view this ambiguous language as supporting
Gross' interpretation that he had a right to be present during the in-chambers discussion
about his mental state on the first day of trial. Accordingly, we turn to other principles.
5. Stare Decisis and Statutory Construction Through Legislative Acquiescence
The parties do not address statutory construction or offer a view of which rules of
construction should be applied. Gross only argues that we need not look beyond the plain
language of K.S.A. 2017 Supp. 22-3302. He does not suggest a path of analysis if we
conclude, as we have just done, that the statute is ambiguous. Nor does the State directly
propose rules of construction that support its position; but it impliedly argues we do not
need to consider rules of construction because Perkins is sound and has precedential
value.
As the State suggests, Perkins remains good law in that it has not been overturned
or even questioned in subsequent decisions. Under the doctrine of stare decisis, "points of
law established by a court are generally followed by the same court and courts of lower
rank in later cases in which the same legal issue is raised." State v. Spencer Gifts,
304 Kan. 755, 766, 374 P.3d 680 (2016). Adherence to precedent promotes stability in
our legal system. Consequently, we apply the doctrine of stare decisis unless we are
"'clearly convinced that the rule was originally erroneous or is no longer sound because
17
of changing conditions and that more good than harm will come by departing from
precedent.'" 304 Kan. at 766 (quoting Crist v. Hunan Palace, Inc., 277 Kan. 706, 715,
89 P.3d 573 [2004]).
Here, as we have discussed, K.S.A. 2017 Supp. 22-3302 is so ambiguous we
cannot say from its language that Perkins was in error. Further, the parties have not cited
and we are not aware of any changing condition that would mean Perkins is no longer
sound. Finally, we are not convinced that more good than harm will come by departing
from precedent in this case. Gross has not suggested the procedure violated his
constitutional rights. Additionally, often the mental state of a criminal defendant who
suffers from mental illness will be in flux during the stressful period of a trial. The trial
judge, the prosecutor, and defense counsel are constantly evaluating whether a
competency examination should be ordered. In fact, the record reveals that Gross'
competency remained under consideration throughout these proceedings, and the trial
judge, after the in-chambers conference, repeatedly raised the issue of competency on the
record and in Gross' presence. At any of those times, if the trial judge had concluded
there was a reason to believe Gross was incompetent to stand trial, the judge would have
been required to suspend the proceedings until he determined Gross was competent to
stand trial. K.S.A. 2017 Supp. 22-3302(1). And the judge could have made the
determination to suspend the proceedings for a competency determination without
conducting a hearing. It follows that the defendant does not have a right to be present
when the judge is considering whether to enter such an order.
We also note that Perkins was decided in 1991. And since that time, the
Legislature has twice amended K.S.A. 22-3302. See L. 2010, ch. 135, § 20; L. 1992, ch.
309, § 1. We have held: "The doctrine of stare decisis is particularly compelling in cases
where, as here, the legislature is free to alter a statute in response to court precedent with
which it disagrees but declines to do so." State v. Quested, 302 Kan. 262, 278, 352 P.3d
18
553 (2015). And we have recognized this principle as a canon of statutory construction
referred to as legislative acquiescence. In Spencer Gifts, we noted this canon is trumped
by plain language. 304 Kan. at 765-66. Here, however, as we have already concluded, the
language of 22-3302 does not compel us to overrule Perkins. Therefore, we can conclude
the Legislature has acquiesced in Perkins' reading of the statute when it amended other
sections of 22-3302 but did not legislatively overrule Perkins' holding reached 27 years
ago.
Consequently, we reaffirm the holding in Perkins, 248 Kan. at 770: "K.S.A.
22-3302 does not mandate that the defendant be present when the discussion concerns
whether to hold a competency hearing." Gross' statutory right was not violated in this
case.
The judgment of the district court is affirmed. The decision of the Court of
Appeals is affirmed.
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