IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,132
STATE OF KANSAS,
Appellee,
v.
GERMAINE R. VAN HOET,
Appellant.
SYLLABUS BY THE COURT
1. The interpretation of a statute is a question of law, and the appellate court's review is
unlimited.
2. The fundamental rule to which all other rules are subordinate is that the intent of the
legislature governs if that intent can be ascertained, and when a statute is plain and
unambiguous, the court must give effect to the intention of the legislature as expressed rather
than determine what the law should or should not be. Where the face of the statute leaves its
construction uncertain, the court may look to the historical background of the enactment, the
circumstances attending its passage, the purpose to be accomplished, and the effect the statute
may have under the various constructions suggested. The legislative intent is to be determined
from a general consideration of the entire act, and effect must be given, if possible, to the
entire act and every part thereof, and it is the duty of the court, as far as practicable, to
reconcile the different provisions so as to make them consistent, harmonious, and sensible.
3. The United States Supreme Court has recognized that in light of the uncertainty of
diagnosis
in the mental health field and the tentativeness of professional judgment, the courts should pay
particular deference to reasonable legislative judgments.
4. Legislative history and relevant case law reveal that the purpose of the 1993 amendment
to
K.S.A. 22-3428 was to provide a uniform procedure to deal with a defendant who has been
acquitted by reason of insanity (now, mental disease or defect), including the defendant's right
to due process within such procedure.
5. A statute is presumed constitutional, and all doubts must be resolved in favor of its
validity.
A statute must clearly violate the Constitution before it may be struck down. This court not
only has the authority, but also the duty, to construe a statute in such a manner that it is
constitutional if the same can be done within the apparent intent of the legislature in passing
the statute.
6. Although K.S.A. 2003 Supp. 22-3428 provides for a mandatory commitment in
subsection
(1)(a), when the provisions of K.S.A. 2003 Supp. 22-3428 are read as a whole, it becomes
apparent that the legislature, concerned about due process rights of a defendant acquitted by
mental disease or defect provided in subsections (1)(b), (c), and (d) for a timely hearing on
the issue of whether the defendant is a currently mentally ill person.
7. The 90-day period between the defendant's acquittal by reason of a mental disease or
defect
and the defendant's commitment to the state security hospital, with an evaluation report of
his or her condition to the court, is necessary to provide the medical experts with a
reasonable opportunity to observe the defendant. Without such an evaluation, a trial court
would be forced prematurely to determine the potential danger the acquittee poses to himself,
herself, or others.
8. Although a defendant may avoid the ordinary criminal penalty by successfully relying on
the
defense of a mental disease or defect, it is not unreasonable for the legislature to provide for
the means by which the State can determine whether the defendant no longer suffers from the
same mental abnormality that caused the criminal acts. In this fashion, the commitment of
such an acquittee bears a rational relationship to legitimate State purposes so as to comply
with equal protection of the law.
9. The Kansas Legislature, in its 1993 amendment of K.S.A. 22-3428, consistent with due
process, struck a reasonable balance between the citizens' rights to be secure and protected
against the potential dangers posed by a defendant acquitted by reason of a mental disease or
defect and that defendant's right to be free at such time as he or she is no longer a danger to
himself, herself, or society.
10. Equal protection does not require that all persons be dealt with identically, but it
does require
that a distinction made have some relevance to the purpose for which the classification is
made.
11. K.S.A. 2003 Supp. 22-3428 contemplates a procedure whereby the court must
hold a hearing
to determine whether the defendant is currently a mentally ill person within 30 days after the
receipt of a report from the chief medical officer of the state security hospital on the
defendant's present mental condition. Any evidence presented by the defendant in that full
evidentiary hearing may be considered by the court in making its determination whether to
dismiss criminal charges and discharge the defendant, commit the defendant to the state
security hospital for treatment, or place the defendant on conditional release subject to
provision of the statute.
Appeal from Johnson district court, STEPHEN R. TATUM, judge. Opinion filed May 14,
2004. Affirmed.
James T. Barker, of Kansas City, Missouri, argued the cause and was on the
brief for
appellant.
Steven J. Obermeier, assistant district attorney, argued the cause,
and Patrick A.N. Carney,
assistant district attorney, Paul J. Morrison, district attorney, and Phill
Kline, attorney general, were
with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: The question we must answer is whether K.S.A. 2003 Supp. 22-3428
requires a
trial court to commit a defendant who has been acquitted of a criminal charge by reason of a
mental
disease or defect to the state security hospital for an evaluation for up to 90 days, or whether such
a
defendant is entitled to an immediate hearing to determine whether he or she is a harm to himself,
herself, or others. Our answer is that the Kansas Legislature mandates that the defendant be sent
to
the state security hospital under the provisions of K.S.A. 2003 Supp. 22-3428(1)(a). We
therefore
affirm the trial court.
Background
Germaine R. Van Hoet was charged with one count of domestic battery and one count of
assault arising out of an incident that occurred on August 31, 2001. The defendant was appointed
counsel and pled not guilty to both counts in the amended complaint.
The defendant filed a notice of intent to rely upon the defense of insanity, a request for a
psychiatric evaluation, and a motion to determine competency to stand trial. On October 23,
2001,
the district court found reason to believe the defendant was incompetent to stand trial and referred
her to the Johnson County Mental Health Center for evaluation. Upon its recommendation for
further evaluation, the district court committed the defendant to the Osawatomie State Hospital
(OSH) for a competency evaluation pursuant to K.S.A. 22-3302.
While at OSH, the defendant was diagnosed as suffering from schizoaffective disorder,
bipolar type; personality disorder, not otherwise specified with narcissistic and antisocial features;
and hypothryroidism and hypercholesterolemia. OSH staff psychiatrist Pia A. Sharp concluded
that
although the defendant suffered from schizoaffective disorder, bipolar type, her capacity to
understand the proceedings against her and to assist in her defense were not substantially
impaired.
On January 4, 2002, the defendant appeared before the trial court, was found competent
to
stand trial, and was released on bond. On February 22, 2002, the defendant filed a request for the
appointment of a licensed psychologist to conduct an examination to determine whether she was
sane at the time the offenses were committed.
On March 4, 2002, the defendant was evaluated by licensed psychologist James Ryabik.
In
his report dated April 3, 2002, Dr. Ryabik indicated that the defendant had deteriorated to a
psychotic state when she did not take her medication. He opined that the defendant's failure to
take
her medication on the date of the incident exacerbated her schizoaffective disorder. Thus, the
report
indicated that the defendant was not likely to have willfully caused bodily harm to another or
willfully and purposely placed one in apprehension of bodily harm. Dr. Ryabik also noted that the
defendant should be in psychotherapy and monitored by a responsible professional as she was
capable of being out of touch with reality if not on an efficient treatment regimen. Moreover, Dr.
Ryabik concluded that the defendant needed help with "self-concept, self-image, and her paranoid
ideation."
The defendant waived her right to a jury trial, and the State stipulated that the defendant
was
insane at the time of the offense. Upon her October 4, 2002, arraignment, the defendant admitted
the actions supporting the charges but denied by reason of her mental condition the ability to form
the requisite intent to support the charges. The trial court found the defendant not guilty by
reason
of mental disease or defect. The parties were given the opportunity to file briefs, and the matter
of
appropriate disposition was set for November 21, 2002.
Upon hearing, the defendant argued she was entitled to a precommitment hearing under
K.S.A. 2003 Supp. 22-3428(1)(a) to determine whether she was a mentally ill person as defined
by
K.S.A. 2003 Supp. 22-3428(7)(b). On her behalf, counsel argued that if a full hearing was
granted,
the court would have a difficult time finding the defendant mentally ill because she had sought out
treatment for her mental illness after being released on bond in January 2002, because she had
attended regular counseling sessions at Wyandot Mental Health Center, and because she had
taken
her prescribed medications. However, no proffer of any such evidence was made to the trial court
on November 21, 2002, or at any time before the trial court entered its order on December 10,
2002,
committing the defendant to the Larned State Security Hospital (Larned) under the provisions of
K.S.A. 2003 Supp. 22-3428.
After consideration of this court's decisions in In re Jones, 228 Kan. 90, 612
P.2d 1211
(1980), and State v. Becker, 264 Kan. 804, 958 P.2d 627 (1998), the trial court
ordered the
defendant committed under the provisions of K.S.A. 2003 Supp. 22-3428, reasoning as follows:
"The Becker case did not send--in that case the facts were the
defendant was not sent to
Larned State Hospital. And they said that she did not have to go to Larned State Hospital
because
the person has been fully evaluated by state psychiatrists from Larned. But it's a narrow
exception.
Becker supports the clear language of the statute and supports, as well, State v.
Jones. Even though
the standard for the not guilty is changed, the Jones ruling and holding is good law.
"Here's what Becker says, 'As a result, in 1993, the procedure was
changed to the present
one, which provides that while a defendant, upon being acquitted by reason of mental disease or
defect, must be mandatorily committed to the state security hospital, such commitment is only for
such a time as to allow the state security hospital to evaluate the defendant's current mental state.
Such an evaluation must be made and a report issued to the court within ninety days'--and we've
been through that. 'If the court finds that the defendant is not currently mentally ill, he or she
must
be released. If the court finds that the defendant is still mentally ill, he or she may be committed
or
conditionally released.'
"And those are the same conditions, Mr. Barker, that you talked about. . . .
"Frankly, after having heard all the arguments and after reading the cases and after
having
the matter researched and reading the language of the statute, I'm satisfied that it's mandatory
upon
finding of not guilty by mental defect, which we have in this case, I must commit the defendant to
the state security hospital for an evaluation with a report to be brought back to the court within
ninety days and a hearing within thirty days thereafter."
On December 24, 2002, the trial court filed a journal entry finding the defendant not guilty
by
lack of mental state pursuant to K.S.A. 2003 Supp. 22-3428. See K.S.A. 22-3220. The court
ordered the defendant committed to the state security hospital for safekeeping and treatment
pursuant to K.S.A. 2003 Supp. 22-3428(1). The court ordered the chief medical officer to submit
a
written evaluation within 90 days of the defendant's admission, and the court stated it would then
set
a hearing to determine whether the defendant was currently mentally ill within 30 days of receipt
of
the report. The defendant's appeal of this order was transferred to this court pursuant to K.S.A.
20-3018(c).
Legislative History and Case Law Relating to K.S.A. 2003 Supp. 22-3428
On appeal, the defendant argues that K.S.A. 2003 Supp. 22-3428(1)(a) grants her a right
to
an immediate hearing after her acquittal by reason of mental disease or defect on the issue of
whether
she is a harm to herself or others. According to her argument, if the provisions of K.S.A. 2003
Supp. 22-3428(a) are interpreted otherwise, the statute is unconstitutional on its face in that it
denies
her and all persons similarly situated due process of law and equal protection. The defendant also
contends that if K.S.A. 2003 Supp. 22-3428(1)(a) is interpreted to deny her an immediate
hearing,
its provisions are unconstitutional as applied to her.
While the defendant limits her arguments to the first subsection of 22-3428
viz., subsection
(1)(a), we believe it is necessary to consider the entire statute, including all subsections. A
familiar
maxim of statutory interpretation provides: "In construing statutes and determining legislative
intent, several provisions of an act, in pari materia, must be construed together with a
view of
reconciling and bringing them into workable harmony if possible. [Citation omitted.]" State
v.
Brown, 272 Kan. 843, 847, 35 P.3d 910 (2001). However, before examining the entire
statute, it is
helpful to consider earlier provisions of K.S.A. 22-3428(1), its evolution over time, and
supporting
Kansas case law interpreting the statute as discussed by this court in Becker.
K.S.A. 1979 Supp. 22-3428(1) provided in relevant part:
"(1) When a person is acquitted on the ground that such person was insane at the
time of
the commission of the alleged crime the verdict shall be 'not guilty because of insanity,' and the
person so acquitted shall be committed to the state security hospital for safekeeping and
treatment."
As indicated in Becker, this 1979 version of the statute may have raised due
process concerns. See
264 Kan. at 810-13. K.S.A. 1979 Supp. 22-3428 mandated commitment of a defendant acquitted
by
reason of insanity for a period of indefinite duration. Such an acquitted defendant had the right to
request a hearing annually, at which time he or she had the right to attempt to show by a
preponderance of the evidence that he or she was not a danger to himself, herself, or others.
Thus, a
defendant committed under this provision could be held in the state security hospital for a full year
without a hearing. See K.S.A. 1979 Supp. 22-3428a. However, the statute did provide for
another
means of discharge in a case where the chief medical officer of the state security hospital felt that
such a discharge was warranted and the defendant could prove to the court that he or she was not
a
danger to himself, herself, or others. See K.S.A. 1979 Supp. 22-3428(2); K.S.A. 1979 Supp.
22-3428a(3).
In 1980, the Kansas Legislature acknowledged its concern with the indefinite commitment
provisions of K.S.A. 1979 Supp. 22-3428(1) by amending the statute to include the following
language:
"A finding of not guilty because of insanity shall be prima facie evidence that
the acquitted person is
presently dangerous to the person's self or others or property of others." L. 1980, ch. 105, sec. 1.
Viewing this amendment in conjunction with its legislative history, we recognized in
Becker that the
amendment arguably created a right to a precommitment hearing at which time the defendant
could
attempt to show that he or she was not presently likely to cause harm to himself, herself, or
others.
See Becker, 264 Kan. at 810-12 (discussing legislative history of the 1980
amendment).
In Jones, decided before the effective date of the 1980 amendment, this court
held that a
mandatory commitment of indefinite duration under K.S.A. 1979 Supp. 22-3428(1) did not deny
the
insanity acquittee due process of law or equal protection of the law. 228 Kan. at 109-10.
The Jones court noted that although it was deciding the case upon the existing
law, the 1980
amendments to K.S.A. 22-3428 were "demonstrative of legislative intent and the result reached
herein is not inconsistent therewith." 228 Kan. at 110. However, Justice Holmes in a dissent
asked
the following question concerning the 1980 amendment:
"As 'prima facie evidence' merely creates a presumption which may be overcome by
evidence from the
other party (in this statute, the insanity acquittee), does not the new amendment imply or
contemplate
a prior hearing to allow the 'prima facie evidence' to be rebutted or contradicted?"
228 Kan. at 114.
It appears that the Kansas Legislature by its above 1980 amendment to K.S.A. 22-3428(1)
did
contemplate a due process hearing prior to commitment. See Memorandum to 1979 Special
Committee on Judiciary regarding Proposal No. 28, p. 4 (recommending changes to the bill after
noting the recent trend in federal and state courts of requiring a due process hearing prior to
commitment). However, no Kansas case arose testing the 1980 amendment prior to the United
States
Supreme Court's 1992 decision in Foucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d
437, 112 S. Ct.
1780 (1992), and the Kansas Legislature's subsequent adoption of a complete revision of K.S.A.
22-3428 in 1993. See L. 1993, ch. 247.
In Foucha, the Court found that a Louisiana statute which allowed an insanity
acquittee to be
committed to a mental institution indefinitely until he was able to demonstrate that he was not
dangerous to himself and others even though he did not suffer from any mental illness, violated
the
Due Process Clause of the United States Constitution. 504 U.S. at 83. The problem with the
Louisiana law was that it allowed an insanity acquittee to be detained even after the acquittee had
regained his or her sanity. The Court found that a State may commit an insanity acquittee without
satisfying the civil commitment procedures, but the committed acquittee is entitled to release
when he
or she has regained sanity or is no longer dangerous. 504 U.S. at 76-77.
The Court reasoned that a verdict of not guilty by reason of insanity establishes two facts:
"'(i)
the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act
because of mental illness.'" 504 U.S. at 76 (quoting Jones v. United States, 463 U.S.
354, 363, 77 L.
Ed. 2d 694, 103 S. Ct. 3049 [1983]). From these two facts, it could be inferred that at the time
of the
verdict the defendant was still mentally ill and dangerous and could be committed. 504 U.S. at
76. In
a concurring opinion, Justice O'Connor further noted:
"It might therefore be permissible for Louisiana to confine an insanity acquittee
who has
regained sanity if, unlike the situation in this case, [where Louisiana determined that the inference
of
dangerousness drawn from a verdict of not guilty by reason of insanity continues even after a
clinical
finding of sanity] the nature and duration of detention were tailored to reflect pressing public
safety
concerns related to the acquittee's continuing dangerousness. [Citations omitted.]
. . . .
"Today's holding follows directly from our precedents and leaves the States
appropriate latitude to care
for insanity acquittees in a way consistent with public welfare." 504 U.S. at 87-90.
In response to Foucha, the Kansas Legislature modified the entire procedure
under K.S.A. 22-3428 in its 1993 amendment. In 1995, the Kansas Legislature amended the
statute to abolish the
defense of insanity and replace it with a mental disease or defect defense. The statute now
provides:
"(1)(a) When a defendant is acquitted and the jury answers in the affirmative to
the special
question asked pursuant to K.S.A. 22-3221 and amendments thereto, the defendant shall be
committed
to the state security hospital for safekeeping and treatment. A finding of not guilty and the jury
answering in the affirmative to the special question asked pursuant to K.S.A. 22-3221 and
amendments thereto, shall be prima facie evidence that the acquitted defendant is presently likely
to
cause harm to self or others.
"(b) Within 90 days of the defendant's admission, the chief medical officer of the
state
security hospital shall send to the court a written evaluation report. Upon receipt of the report,
the
court shall set a hearing to determine whether or not the defendant is currently a mentally ill
person.
The hearing shall be held within 30 days after the receipt by the court of the chief medical officer's
report.
"(c) The court shall give notice of the hearing to the chief medical officer of the
state security
hospital, the district or county attorney, the defendant and the defendant's attorney. The court
shall
inform the defendant that such defendant is entitled to counsel and that counsel will be appointed
to
represent the defendant if the defendant is not financially able to employ an attorney as provided
in
K.S.A. 22-4503 et seq. and amendments thereto. The defendant shall remain at the
state security
hospital pending the hearing.
"(d) At the hearing, the defendant shall have the right to present evidence and
cross-examine
witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence
that
the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding
and
discharge the defendant, otherwise the court may commit the defendant to the state security
hospital
for treatment or may place the defendant on conditional release pursuant to subsection (4)."
K.S.A.
2003 Supp. 22-3428.
"In any case in which the defense has offered substantial evidence of a mental
disease or
defect excluding the mental state required as an element of the offense charged, and the jury
returns a
verdict of 'not guilty,' the jury shall also answer a special question in the following form: 'Do you
find
the defendant not guilty solely because the defendant, at the time of the alleged crime, was
suffering
from a mental disease or defect which rendered the defendant incapable of possessing the required
criminal intent?' The provisions of this section shall be in force and take effect on and after
January 1,
1996." K.S.A. 22-3221.
In Becker, this court discussed the reasoning behind the 1993 comprehensive
procedural
amendment:
"In 1993, the legislature modified the entire procedure under 22-3428. S.B. 10
sought to
correct what was perceived as a constitutional deficiency by allowing for a hearing to be held after
the
verdict to determine the defendant's present mental state. See Minutes of the Senate Committee
on
Judiciary, January 26, 1993. According to the legislative history, there was grave concern that the
system then in effect, with its automatic commitment and presumption of mental illness, was
unconstitutional in light of the United States Supreme Court's decision in Foucha
v. Louisiana, 504
U.S. 71. See Testimony of Brenda West Hagerman, Legal Services, Larned State Hospital,
before the
Senate Judiciary Committee, January 26, 1993.
"As a result, in 1993, the procedure was changed to the present one, which
provides that
while a defendant, upon being acquitted by reason of a mental disease or defect, must be
mandatorily
committed to the state security hospital, such commitment is only for such a time as to allow the
state
security hospital to evaluate the defendant's current mental state. Such an evaluation must be
made
and a report issued to the court within 90 days of the defendant's admission. Thereafter, a hearing
must be held within 30 days of the receipt of the report, at which time the defendant may present
evidence that he or she is not currently mentally ill. If the court finds that the defendant is not
currently mentally ill, he or she must be released. If the court finds that the defendant is still
mentally
ill, he or she may be committed or conditionally released. See K.S.A. 1997 Supp. 22-3428(1)(b),
(c),
(d). Thus, 22-3428 provides for a precommitment hearing following a limited commitment for
evaluation purposes." 264 Kan. at 811.
In Becker, we were faced with many of the arguments raised by the defendant
in this case
regarding K.S.A. 1997 Supp. 22-3428. Becker was taken to Larned by police immediately after
the
incident giving rise to an aggravated battery charge. He was involuntarily committed to Larned,
evaluated, and treated, which included a change in his medication to fit his condition. Prior to his
commitment, Becker's mental condition was aggravated by his taking prescribed medication
inconsistent with his mental condition. At the end of his extended commitment he was discharged
based upon the chief medical officer's determination that he was no longer a danger to himself or
others. Within a short time, Becker was tried and acquitted of the charged aggravated battery
based
upon his plea of insanity. The district court converted the sentencing proceeding to a hearing on
the
defendant's mental state under 22-3428(1)(b) and (d), and he was placed on conditional release.
On appeal, the State sought a declaration from this court that 22-3428(1)(a) mandates that
a
criminal defendant who has been acquitted on the basis of a mental defect or disease under K.S.A.
22-3221 be committed to the state security hospital for safekeeping and treatment. This court
reviewed the legislative history of the statute and the relevant case law and concluded that the
purpose
of the 1993 amendment was "to provide a uniform procedure to deal with a defendant who has
been
acquitted by reason of insanity, [now mental disease or defect] including the defendant's right to
due
process within such procedure." 264 Kan. at 811-12. Of relevance to this case, the court went
on to
note:
"Arguably, the language of the 1980 amendment which remains today provides a
defendant a
remedy in addition to the specific procedure set forth in the 1993 amendment to 22-3428. If the
legislature intended, by the 1993 amendment, to provide a procedure whereby the defendant is
mandatorily committed for evaluation purposes without a hearing, it is puzzling that it left the
language intact in the 1980 amendment." 264 Kan. at 812.
However, the court concluded that it was not necessary to resolve this issue because it
was
clear that the district court recognized that 22-3428(1)(a) required a defendant to be committed,
but
this was a unique case in that the purpose to be served by the mandatory commitment,
i.e., allowing
the state security hospital to evaluate and the chief medical officer to render an opinion on the
defendant's present mental state, had already been completed. Recognizing that relief in
mandamus is
discretionary, Becker denied the State's application for a writ of mandamus under the
unique facts of
that case. 264 Kan. at 812-13.
Statutory Interpretation
The interpretation of a statute is a question of law, and the appellate court's review is
unlimited. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).
"The fundamental rule to which all other rules are subordinate is that the intent of
the
legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous,
the
court must give effect to the intention of the legislature as expressed rather than determine what
the
law should or should not be. [Citation omitted.] Where the face of the statute leaves its
construction
uncertain, the court may look to the historical background of the enactment, the circumstances
attending its passage, the purpose to be accomplished, and the effect the statute may have under
the
various constructions suggested. [Citation omitted.] The legislative intent is to be determined
from a
general consideration of the entire act, and effect must be given, if possible, to the entire act and
every
part thereof, and it is the duty of the court, as far as practicable, to reconcile the different
provisions so
as to make them consistent, harmonious, and sensible. [Citation omitted.]" Robinett v. The
Haskell
Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
When the legislature revises an existing law, it is presumed that the legislature intended to
change the law from how it existed prior to the amendment, and it is presumed that the legislature
does not intend to enact useless or meaningless legislation. See Davey v. Hedden,
260 Kan. 413, 419-20, 920 P.2d 420 (1996); Galindo v. City of Coffeyville, 256 Kan.
455, 464-65, 885 P.2d 1246
(1994). The court should avoid interpreting a statute in such a way that part of it becomes
surplusage.
See State ex rel. Stephan v. Kansas Racing Comm'n, 246 Kan. 708, 719,
792 P.2d 971 (1990).
The defendant argues that the district court ignored these rules of statutory construction
by not
construing K.S.A. 2003 Supp. 22-3428(1)(a) to require an immediate hearing to determine
whether
the acquitted defendant is presently "likely to cause harm to self or others." Specifically, the
defendant
contends that the district court ignored the second sentence of K.S.A. 2003 Supp. 22-3428(1)(a),
which provides that an acquittal by reason of mental disease or defect "shall be prima facie
evidence
that the acquittee is presently likely to cause harm to self or others." The defendant further argues
that
Justice Holmes' dissent in In re Jones, 228 Kan. 90, 114, 612 Kan. 1211 (1980),
supports her
interpretation by suggesting that such language contemplates a prior hearing to allow the
defendant to
rebut the prima facie evidence. Finally, the defendant argues that reliance on Jones is
misplaced
because it was decided under the prior version of 22-3428 when Kansas recognized an insanity,
rather
than a mental disease or defect, defense.
The defendant's argument is narrowly based upon K.S.A. 2003 Supp. 22-3428(1)(a)
without
consideration of the statute as a whole. While a persuasive argument may have been made in
1980
that the language stating that an acquittal by reason of insanity shall be prima facie evidence that
the
acquitted defendant is presently likely to cause harm to himself, herself, or others suggests an
immediate hearing after conviction so the defendant might rebut the prima facie evidence, the
same
argument lacks merit in light of the complete revision of the law in 1993 and subsequent
amendments
in 1995 and 1996.
As previously noted when construing a statute, the fundamental rule to which all other
rules
are subordinate is that the intent of the legislature governs if that intent can be ascertained. In this
case, the intent of the legislature regarding K.S.A. 2003 Supp. 22-3428 as a whole seems clear.
The
legislature decided to set up a uniform process whereby a defendant acquitted by reason of a
mental
disease or defect would be committed for evaluation for a short time of limited duration followed
by a
court hearing on the defendant's present mental state. To accomplish this purpose, K.S.A. 2003
Supp.
22-3428(1)(a) provides that one found not guilty by reason of mental disease or defect shall be
committed to the state security hospital for safekeeping and treatment. Within 90 days of
admission,
the chief medical officer of the state security hospital shall send to the court a written evaluation
report. Upon receipt of the report, the court shall set a hearing to determine whether the
defendant is
currently a mentally ill person. The hearing shall be held within 30 days after the court's receipt of
the
evaluation report. K.S.A. 2003 Supp. 22-3428(1)(b).
K.S.A. 2003 Supp. 22-3428(1)(c) requires the court to notify all interested parties,
including
the chief medical officer, and appoint an attorney if the defendant is not financially able to employ
an
attorney. K.S.A. 2003 Supp. 22-3428(1)(d) mandates that the hearing shall be consistent with
due
process by providing that the defendant shall have the right to present evidence and cross-examine
witnesses. At the conclusion of the hearing, if the court finds by clear and convincing evidence
that
the defendant is not currently a mentally ill person, the court shall dismiss the criminal proceeding
and
discharge the defendant; otherwise the court may commit the defendant to the state security
hospital
for treatment or may place the defendant on conditional release. K.S.A. 2003 Supp.
22-3428(1)(d).
Although the legislature retained the language in K.S.A. 2003 Supp. 22-3428(1)(a)
regarding
prima facie evidence, such language when considered with the entire statute serves to justify the
initial
commitment of a defendant acquitted by reason of mental disease or defect to the state security
hospital for evaluation before disposition. The second sentence of 22-3428(1)(a) thus serves to
justify
the mandatory language of the first sentence providing that such a "defendant shall be committed
to
the state security hospital for safekeeping and treatment." K.S.A. 2003 Supp. 22-3428(1)(a).
Subsection (1)(a) contains no express provision for a hearing, but subsections (1)(b), (c), and (d)
set
forth a comprehensive procedure calling for a timely evaluation of the defendant, notice to all
interested parties, appointment of counsel for the defendant if financially unable to employ one,
and a
full hearing consistent with due process requiring dismissal of all charges and discharge if the
defendant is "not currently a mentally ill person." K.S.A. 2003 Supp. 22-3428(1)(b), (c), and (d).
The question asked by Justice Holmes in his dissent in Jones as to whether the
prima facie
evidence language contemplates a hearing prior to commitment has been answered not by judicial
interpretation of the statute in effect at that time but by the legislature's comprehensive revision of
the
uniform procedures relating to the due process determination of whether a "defendant is not
currently
a mentally ill person." K.S.A. 2003 Supp. 22-3428(1)(d). The trial court's determination that the
provisions of K.S.A. 2003 Supp. 22-3428 required the commitment of the defendant to the state
security hospital is consistent with the express provisions of the statute and consistent with the
above
interpretation of the statute as a whole. Thus, on this point we affirm the trial court.
Constitutionality of K.S.A. 2003 Supp. 22-3428 on its Face
The defendant argues that the mandatory commitment procedure under K.S.A. 2003
Supp. 22-3428(1)(a) violates the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to
the United States Constitution and the Kansas Constitution on its face and as applied. The
determination of whether a statute violates the Constitution is a question of law over which we
have
unlimited de novo review. Mudd v. Neosho Memorial Regional Med. Center, 275
Kan. 187, 197, 62
P.3d 236 (2003).
"A statute is presumed constitutional and all doubts must be resolved in favor of its
validity. A statute
must clearly violate the constitution before it may be struck down. This court not only has the
authority, but also the duty, to construe a statute in such a manner that it is constitutional if the
same
can be done within the apparent intent of the legislature in passing the statute." State v.
Martinez, 268
Kan. 21, 23, 988 P.2d 735 (1999).
The defendant acknowledges that this court upheld the constitutionality of K.S.A. 1979
Supp.
22-3428 in Jones, 228 Kan. at 90, but she contends this court should reject
Jones' precedential value
because it was decided when Kansas recognized the M'Naghten defense of insanity
rather than the
mens rea approach effective January 1, 1996. The defendant further contends that
automatic
commitment will violate her right to due process of law because it will not require a determination
of
her present mental condition. "Due process requires that the nature of commitment bear some
reasonable relation to the purpose for which the individual is committed." Foucha v.
Louisiana, 504
U.S. 71, 79, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992).
As previously discussed, this court upheld the constitutionality of the mandatory
commitment
provision of K.S.A. 1979 Supp. 22-3428. At the time Jones was decided, Kansas still
had in place the
defense of insanity as represented by the M'Naghten rule, which provides in relevant
part:
"'[T]he defendant is laboring under such a defect of reason from disease of the mind as not
to know the
nature and quality of the act he is doing, or if he did know it, that he did not know that he was
doing
was wrong because of his mental inability to distinguish between right and wrong, and if these
facts
exist, then the law does not hold him responsible for his act.'" 228 Kan. at 98-99 (quoting
State v.
Andrews, 187 Kan. 458, 465, 357 P.2d 739 [1960], cert. denied 368 U.S. 868
[1961]).
The Jones court discussed the significance of the M'Naghten test:
"The M'Naghten test has often been criticized by those who believe it
is too strict and
unenlightened in view of advances in modern psychiatry. . . . The M'Naghten rule is
the law of this
state. If degrees of insanity were placed on a scale of one to ten in ascending order of severity,
those
failing the M'Naghten test are all 'tens.' To fail the M'Naghten test one
must not have understood the
nature of his acts or that such acts were wrong--the so-called right and wrong test. Generally
speaking, evidence that a defendant attempted to conceal the crime or his identity as the
perpetrator
thereof goes a long way to defeat an insanity defense. Again, speaking in generalities, an insanity
defense is more likely to be successful when the crime is senseless, heinous and shocking. In such
situations a jury can more easily conclude that the defendant must not have understood the nature
of
his acts or that the same were wrong." 228 Kan. at 99-100.
In reviewing cases from other jurisdictions, the Jones court noted:
"One of the difficulties in comparing the decisions of courts of other jurisdictions is
that each
has its own statutory scheme and case law relative to the insanity defense. Even the test of
insanity
varies. Insanity acquittees in M'Naghten rule states have 'failed' a far more rigid test
than have
insanity acquittees in an A.L.I. rule state. These differences are important relative to
reasonableness of
the mandatory commitment provision, as well as to its comparison with involuntary commitment
procedures in considering equal protection arguments." 228 Kan. at 107.
The defendant argues that when operating under the M'Naghten rule, a court
could safely infer
that the acquitted defendant's degree of mental illness, if placed on a scale of 1 to 10 in ascending
order, would have been a 10, and no real chance existed that the mandatory commitment
provision of
22-3428 could violate an acquitted defendant's constitutional rights. However, the defendant
contends, since the adoption of the mens rea approach to mental defenses, the court
can no longer
safely draw such an inference, as the factfinder merely has to find that she had been suffering from
a
mental disease or defect that rendered her incapable of possessing the required mental state. See
K.S.A. 22-3220. Thus, the defendant contends a distinct possibility exists that her due process
rights
will be violated.
However, this argument is without merit. Marc Rosen compared the mens
rea approach with
the former insanity defense in his article, Insanity Denied: Abolition of the Insanity Defense
in
Kansas, 8 Kan. J.L. & Pub. Pol'y 253-54 (1999), and concluded:
"Kansas's new 'mens rea' approach is too narrow. Proclaimed as a balance
between the rights of
mentally ill defendants and the public's outcry for reform, the new mens rea approach
is unfair when
compared to the former insanity defense. This is evidenced by the fact that some of the
most
debilitating mental illnesses would fail to meet the strict requirements of the new
approach."
(Emphasis added.)
In fact, the adoption of the mens rea approach arguably makes the nature of
the commitment
bear even more of a relation to the purpose for which a defendant is committed since the
defendant is
only able to introduce evidence of a mental disease or defect as it specifically relates to the
requisite
mens rea of the offense. Under the former insanity defense, the defense could
introduce evidence as to
the existence of a mental disease or defect to litigate a defendant's mental condition in general.
See
State v. Jorrick, 269 Kan. 72, 82, 4 P.3d 610 (2000) (quoting Rosen, 8 Kan. J.L.
& Pub. Pol'y at 254-55).
The defendant cites Foucha in arguing that if K.S.A. 2003 Supp.
22-3428(1)(a) does not allow
a specially acquitted defendant the right to a precommitment hearing, then, like the
Louisiana statute in
Foucha, it violates that defendant's right to due process because he or she can be
committed to the
state security hospital even if he or she is not presently suffering from any mental illness or is not a
danger to himself, herself, or others.
However, the defendant's argument overlooks the fact that the limited commitment is
simply to
conduct an evaluation in order to provide the defendant with a precommitment due process
hearing.
Although the amended version of K.S.A. 22-3428 provides for a mandatory commitment in
subsection
(1)(a), when the provisions of K.S.A. 2003 Supp. 22-3428 are read as a whole, it becomes
apparent
that the legislature, concerned about due process rights of the acquittee, provided in subsections
(1)(b), (c), and (d) for a timely hearing on the issue of whether the defendant is currently a
mentally ill
person.
Within 90 days of a defendant's admission to the state security hospital, the chief medical
officer shall send to the court a written evaluation report on this issue, and a hearing shall be held
within 30 days after the receipt of that report. K.S.A. 2003 Supp. 22-3428(1)(b). Subsection
(1)(c)
provides that the court shall give notice of the hearing to interested parties, including the
defendant
and the defendant's attorney. If the defendant is financially unable to employ an attorney, one
shall be
appointed for the defendant by the court. Subsection (1)(d) provides for a full evidentiary hearing
where the defendant shall have the right to present evidence and cross-examine witnesses. "[I]f
the
court finds by clear and convincing evidence that the defendant is not currently a mentally ill
person,
the court shall dismiss the criminal proceeding and discharge the defendant." K.S.A. 2003 Supp.
22-3428(d).
The above subsections provide a limited and reasonable period of time after a defendant
has
been acquitted by reason of mental disease or defect for an evaluation of the defendant's present
mental state. Without such an evaluation, the court would be forced to prematurely determine the
potential danger such an acquittee poses to himself, herself, or others. See State v.
Phillips, 968
S.W.2d 874 (Tenn. Crim. App. 1996), cert. denied 525 U.S. 847 (1998) (citing
People v. De Anda,
114 Cal. App. 3d 480, 489, 170 Cal. Rptr. 830 [1980], cert. denied 451 U.S. 990
[1981]).
In Phillips, the Tennessee appellate court considered both
Jones v. United States, 463 U.S.
354, 77 L. Ed. 2d 694, 103 S. Ct. 3043 (1983), and Foucha, 504 U.S. 71, in
concluding that
immediate mandatory hospitalization of the insanity acquittee for 60 days for the purpose of
diagnosis
and evaluation did not violate his equal protection and due process rights, reasoning in part:
"Automatic commitment of an insanity acquittee provides the state with an in-depth
opportunity to
assess the defendant's current mental status and to determine whether he poses a potential danger
upon
his release. We agree that the fact that the trial court found a reasonable doubt as to the
defendant's
sanity at the time of the offense provides sufficient reason for further examination. Moreover, the
sixty-to-ninety-day period between the defendant's acquittal and the hearing to appraise his then
existing mental condition is necessary to provide the medical experts with a reasonable
opportunity to
observe him. Without an evaluation, a trial court would be forced
prematurely to evaluate the potential
danger an insanity acquittee poses to himself or others.
. . . .
"The United States Supreme Court has recognized that in light of the 'uncertainty
of diagnosis
in [the mental health] field and the tentativeness of professional judgment,' the 'courts should pay
particular deference to reasonable legislative judgments.' Jones, 463 U.S. at 364
n.13, 103 S. Ct. at
3050 n.13. The Tennessee legislature has provided mentally ill defendants with the right to an
absolute insanity defense and, thus, has the prerogative to impose conditions on those who
successfully
rely upon such a defense. We do not think that the legislature acted unreasonably in allowing a
definite period of sixty to ninety days for examination and diagnosis. . . .
. . . .
"Significantly, the defendant in the present case admitted that he committed the
acts that
would otherwise constitute criminal offenses, but that he did so while mentally ill. In this respect,
the
defendant placed himself in a different position than other criminal defendants or civil commitment
defendants by choosing to claim that he was not mentally responsible for his acts. Moreover, we
also
conclude that the record on appeal does not support the trial court's 'findings' that the defendant
was
no longer a danger to society at the time of trial . . . .
"Thus, we cannot say, even as a matter of evidentiary fact, that the defendant was
shown to be
in no need of evaluation and treatment relative to his mental health. In other words, although he
may
avoid the ordinary criminal penalty by successfully relying on the defense of insanity, it is not
unreasonable for the legislature to provide for a means by which the state can determine that he
no
longer suffers from the same mental abnormality that caused the 'criminal' acts. In this fashion,
the
commitment of an insanity acquittee bears a rational relationship to legitimate state purposes so as
to
comply with equal protection of the law." 968 S.W.2d at 880-82.
In this case, the legislative history clearly indicates that the legislature was aware of
Foucha
and sought to correct any constitutional deficiencies by enacting the 1993 amendments, which
provide
for a precommitment hearing after a limited commitment for evaluation purposes. As noted in
Phillips, this procedure provides the State with an in- depth and uniform opportunity
to assess a
defendant's current mental status and to determine whether he or she poses a potential danger
upon his
or her release. It is not unreasonable for the legislature to provide a means by which the state can
determine that the defendant no longer suffers from the same mental abnormality that prevented
him or
her from being found guilty of the criminal acts.
We believe that the Kansas Legislature, in its 1993 amendment of K.S.A. 22-3428,
consistent
with due process, struck a reasonable balance between the citizens' right to be secure and
protected
against the potential dangers posed by a defendant acquitted by reason of insanity (now, mental
disease
or defect) and that defendant's right to be free at such time as he or she is no longer a danger to
himself, herself, or society. This conclusion is further supported by Justice Lockett's dissent in
State v.
Becker, 264 Kan. 804, 813, 958 P.2d 627 (1998):
"Unlike the statute held unconstitutional in Foucha, 22-3428 is
narrowly tailored. It provides
that a criminal defendant found to have committed the act charged, but who is not legally
responsible
for doing so because the defendant was incapable of forming criminal intent, be committed to the
state
security hospital. It is the jury's acquittal of the defendant that provides 'prima facie
evidence that the
acquitted defendant is presently likely to cause harm to self or others' to commit the person
found
mentally ill to the state security hospital. The defendant is entitled to a hearing within 120 days of
the
guilty verdict to determine his or her present sanity. The legislature passed this narrowly tailored
statute to protect its citizens from someone who has committed criminal acts and has done so
because
he or she was insane." 264 Kan. at 819.
The defendant also attempts to raise an equal protection argument by citing K.S.A.
22-3222
and K.S.A. 22-3429, which provide:
"In any case in which the defendant is found not guilty of a charged crime, and the
special
question under K.S.A. 22-3221 is answered in the affirmative and the defendant is also found
guilty of
a lesser included or otherwise charged offense, the court shall proceed in the manner authorized
by
K.S.A. 22-3429 et seq., and amendments thereto. The provisions of this section shall
be in force and
take effect on and after January 1, 1996." K.S.A. 22-3222.
"After conviction and prior to sentence and as part of the presentence investigation
authorized
by K.S.A. 21-4604 and amendments thereto or for crimes committed on or after July 1, 1993, a
presentence investigation report as provided in K.S.A. 21-4714 and amendments thereto, the trial
judge may order the defendant committed for mental examination, evaluation and
report. If the
defendant is convicted of a felony, the commitment shall be to the state security hospital or any
suitable local mental health facility. If the defendant is convicted of a misdemeanor, the
commitment
shall be to a state hospital or any suitable local mental health facility. If adequate private facilities
are
available and if the defendant is willing to assume the expense thereof, commitment may be to a
private hospital. A report of the examination and evaluation shall be furnished to the judge and
shall
be made available to the prosecuting attorney and counsel for the defendant. A defendant may
not be
detained for more than 120 days under a commitment made under this section." (Emphasis
added.)
K.S.A. 22-3429.
"'Equal protection does not require that all persons be dealt with identically, but it does
require
that a distinction made have some relevance to the purpose for which the classification is made.'"
Jones, 228 Kan. at 97 (quoting Baxstrom v. Herold, 383 U.S. 107, 111,
15 L. Ed. 2d 620, 86 S. Ct.
760 [1966]). In the absence of a suspect classification or an intrusion upon a fundamental
constitutional right, the challenged classification must bear some rational relationship to legitimate
state purposes. Phillips, 968 S.W.2d at 882.
The defendant argues that the difference in classification between a defendant specially
acquitted under K.S.A. 22-3221 (mandatory commitment under K.S.A. 2003 Supp. 22-3428) and
a
defendant specially acquitted of one charge but convicted of another charge under K.S.A.
22-3222
(discretionary commitment with the court) could not be related to any legitimate State interest.
However, these two classes of defendants are clearly different as the latter has been convicted of a
crime and was able in some part to form the requisite intent despite his or her mental disease or
defect.
In the latter case, the legislature has made a determination that the presentence investigation
performed as a result of the conviction adequately protects the public and that it was appropriate
to
grant the district court more discretion in determining whether to commit the defendant for
further
evaluation. The defendant's equal protection argument fails.
Constitutionality of K.S.A. 2003 Supp. 22-3428 as Applied
The defendant finally argues that the mandatory commitment procedure required by
K.S.A.
2003 Supp. 22-3428 is unconstitutional as applied to her situation and results in cruel and unusual
punishment. She argues that she has already received extensive treatment at OSH, she is currently
under the care of Dr. Pikalov of the Wyandot Center for Community Behavioral Healthcare, Inc.,
she
has been out on bond since January 2002 without incident, and she has served 108 days in
custody for
relatively minor crimes. Although this may have potentially been the defendant's strongest
argument,
her argument fails for several reasons, in large part because of her failure to provide a sufficient
record
on appeal.
The defendant was evaluated at OSH nearly a year before her acquittal to determine
whether
she was competent to stand trial. She was not evaluated at Larned to determine whether she was
currently in need of treatment and likely to cause harm to herself or others at the time she was
acquitted by reason of a mental disease or defect. This is important in light of Dr. Ryabik's
evaluation
6 months before the defendant entered the plea that she deteriorates to the point of becoming
psychotic when not on her medication, that her medication should be monitored on a daily basis,
that
she should be in psychotherapy, and that she is capable of being out of touch with reality when
not on
an efficient treatment regime. The State has a legitimate interest in determining whether a
defendant
acquitted by reason of mental disease or defect is safe to be back in the community.
The defendant argues she has been successfully under the care of Dr. Pikalov since
released on
bond, but she provides no evidence in the record of Dr. Pikalov's assessment of her mental status
at
the time she was adjudged not guilty by reason of mental disease or defect. Although the
defendant
alleges in her brief that she filed documentation with the trial court in support of her position,
which
was not made part of the record on appeal, the defendant failed to proffer this evidence in order
to
permit a meaningful review on appeal. "Failure to make a proffer of excluded evidence precludes
appellate review because there is no basis to consider whether the trial court abused its
discretion."
State v. Evans, 275 Kan. 95, 100, 62 P.3d 220 (2003). Without this evidence, this
court is unable to
determine whether the defendant was being committed to Larned when she was neither dangerous
nor
mentally ill. See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286
(1998) (An
appellant has the burden to designate a record sufficient to establish the claimed error.).
Although the defendant served several days in custody related to misdemeanor offenses,
much
of this time is attributable to the defendant in determining whether she was competent to stand
trial.
See State v. Davis, 277 Kan. 309, 333, 85 P.3d 1164 (2004) (Kansas authority
charges any delay in
the proceedings reasonably associated with a challenge to competency to the defendant).
Likewise,
the additional time required to be spent in Larned for the precommitment evaluation is also
charged to
the defendant as a result of her decision to raise the insanity defense. See 277 Kan. at 333. As
this
time would be charged to the defendant for speedy trial purposes, it is difficult to conclude that
the
consequences of the defendant's choice to raise this defense, i.e. 90 days' evaluation at
Larned, could
constitute cruel and unusual punishment.
Moreover, even if all information relied upon by the defendant was made in the form of a
proffer, the State would be entitled to a period of time not only to evaluate the evidence proffered
but
would also be entitled to have an examination of the defendant on the issue of mental illness,
which in
all likelihood would result in a request by the State to have such an evaluation and examination
performed at the state security hospital. The present form of the statute contemplates a procedure
whereby the court in a full evidentiary hearing receives information which allows it to make a
reasoned
response on the issue of whether such a defendant is presently mentally ill. Thus, we hold that the
procedures and system set forth in the provisions of K.S.A. 2003 Supp. 22-3428 are
constitutional as
applied to the defendant in this case, and we affirm the order of commitment entered by the trial
court.
Affirmed.
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