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State v. Gross

Supreme Court of Kansas

May 25, 2018

State of Kansas, Appellee,
Glenn D. Gross, Appellant.


         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.

         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          Review of the judgment of the Court of Appeals in an unpublished opinion filed May 27, 2016.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.

         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.


          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 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.

         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 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 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 ...

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