State v. Horn

• Decision Date: 18 June 2004
• Docket Number: No. 90,066,90,066
• Citation: 91 P.3d 517,278 Kan. 24
• Parties: STATE OF KANSAS, Appellee, v. THEODORE V. HORN, II, Appellant.
• Court: Kansas Supreme Court

278 Kan. 24

91 P.3d 517

STATE OF KANSAS, Appellee, v.THEODORE V. HORN, II, Appellant.

No. 90,066

Supreme Court of Kansas

Opinion filed June 18, 2004.

Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant county attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline,attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

Theodore V. Horn, II, was convicted by a jury of first-degree premeditated murder for the death of his biological grandmother, Tina Weaver.Based upon the district court's finding that the crime was heinous, atrocious, and cruel, he was given a hard 50 life sentence.Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.

The issues on appeal and this court's accompanying holdings are as follows:

1.Did the district court err by denying defendant's motion to suppress all evidence?No.

2.Did the district court err by denying defendant's motion in limine to exclude evidence of a pornographic magazine and allegations relating to sexual assault?No 3.Did the district court err by refusing to instruct the jury on voluntary manslaughter as a lesser included offense?No.

4.Is Kansas' hard 50 life sentence, K.S.A. 2003 Supp. 21-4635 et seq., without a jury finding beyond a reasonable doubt that aggravating circumstances occurred, a violation of the Sixth and Fourteenth Amendments to the United States Constitution?No.

Accordingly, we affirm.

FACTS

Theodore V. Horn, II, had been an alcoholic for years.When his girlfriend kicked him out of her residence because he had resumed his drinking, he moved in with his grandmother, Tina Weaver, in May 2002.Weaver had raised Horn, and he called her "Mom."She disapproved of his drinking and had called the police when he had previously been drinking or had been drunk at her house.She had once obtained a protection from abuse order against him, though it had expired in June 2000.

On Friday, May 17, 2002 — within a week or two of Horn's moving in with Weaver — Krystal Kern, who lived across the street, left for work around noon.She saw Weaver standing inside Weaver's house staring out through the screen door.Kern waved, but Weaver did not acknowledge her, which was unusual because Weaver would always wave, tell her good morning, and wish her a nice day.Kern then heard a man's loud, angry voice coming from inside the house, but did not see Weaver react in any way.Kern never saw her again.

Another neighbor, Greg Fisher, last saw Weaver on May 17 between 5 and 5:30 p.m. when she stuck her head outside her door.The next morning, May 18, he stopped at Weaver's to drop off a bag of fruit and vegetables.He rang the bell, but received no answer, so he left the bag on the doorknob.That afternoon at 2:15 he received a call from his daughter advising him that another neighbor, Betty Roux, was requesting his assistance in checking on Weaver's welfare.When he later approached Weaver's door, he noticed the bag of fruit and vegetables still hanging outside.He received no response to the buzzer, and when he attempted to open the door, a safety chain only allowed it to open several inches.He detected a commotion in the dark living room and Horn called out to say they had overslept but everything was ok.As Fisher walked away, Roux advised that she had already called 911 to come and check on Weaver.

Officer Gregory Johnson of the Wichita police was dispatched that day to 422 North Custer for a check-welfare call.He had been told that he was going to check the welfare of an 89-year-old female whom the neighbors said they had not seen in a couple of days.Officer Michelle Woodrow arrived at the same time, i.e., approximately 3 p.m. Emergency medical services personnel and ambulances also arrived.

The officers spoke to Roux and Roux's daughter.Roux told them that she had not seen Weaver for a couple of days and that she was concerned because she was used to Weaver being at her front door collecting mail.Roux was concerned because the mail was still in Weaver's mail slot, which was unusual.According to Roux, Weaver knew exactly when the mail was supposed to arrive, and if it was a few minutes late, she would call her neighbors.Roux told Officer Johnson that she had knocked on Weaver's door but Horn refused to open it.Horn told Roux that Weaver was okay, but Roux thought his response was unusual so she called 911.

After the conversation with Roux and her daughter in Roux's front yard, Officer Johnson and Officer Woodrow walked next door to 422 North Custer.Johnson confirmed the mail was still in the slot next to the door.He opened the screen door and knocked on the inner door.Johnson heard a male voice from inside ask who it was, and Johnson identified himself as a police officer.For 4-5 minutes, Johnson continued knocking and calling for Horn by name.Officer Woodrow checked to see if the door was locked and pushed the door open.The door opened 3 to 4 inches, but a security chain prevented it from opening further.Through the opening they were able to see what appeared to be the shape of a body nearby under a blanket.

When Horn eventually came to the door, he told the officers he and Weaver were asleep and he was naked.Johnson observed Horn was naked and directed him to get dressed because of the presence of a female officer.He also told Horn to open the door so they could check on his mother.At that point Horn stated, "She's dead.I killed her."He was again directed to put on pants and open the door, to which he stated several times, "This is murder.I killed my mom.I love my mom."After he put on his pants and unchained the door, he was placed in handcuffs.Three additional times he repeated, "This is murder.I killed my mom.I love my mom."Horn was later taken to a hospital in an ambulance because he had passed out in the patrol car.

At the hospital, Lieutenant Kenneth Landwehr observed a blood smear on Horn's right forearm and removed the blood smear with a set of swabs.He observed Horn's hands and detected no sign of injury.Landwehr also took a swab of Horn's penis before medical personnel cleaned it.

Mark Alexander was on duty as a detention deputy at the Sedgwick County jail at 7 p.m. when Horn was brought in.According to Alexander, Horn was screaming, saying that Weaver had been "bitching" at him and he got mad and twisted her neck and took a saw and started cutting her head off.Horn told the officers that she had been dead since Thursday, May 16.

Police found Weaver's body in the living room covered with a green blanket.They observed a massive trauma to her head and a massive amount of pooling of blood underneath it.A wooden carpenter's level, broken and blood-spotted, was nearby.They also observed she was partially decapitated and a carpenter's handsaw was underneath her body.The saw contained hair and blood, consistent with a pattern of blood drops near Weaver's head.In front of the couch and 3 feet from Weaver's feet was a pornographic magazine entitled "Live Young Girls" folded in half lengthwise.The magazine contained Horn's semen and one of his fingerprints.

The forensic pathologist who investigated the cause of Weaver's death testified that based on the receding of rigor mortis in the body, she had probably been dead since 10:15 p.m. on Friday, May 17.He concluded she had died from multiple blunt and sharp force injuries.The neck injuries were consistent with the handsaw and reflected five separate starting points, with one major cut entirely through the vertebrae and ending at the trachea.The pathologist concluded that the major cut alone took between 30 minutes and 2 hours to inflict and that Weaver was still alive when the sawing occurred.

Weaver's body was partially clad, with her upper garments pushed over a shoulder and her slacks pulled down to the midpoint on her buttocks.Her genital area also contained small lacerations and abrasions, but no seminal fluid was found on swabs taken from her or her clothing.Horn's DNA was not found on Weaver's fingernails, her clothing, or the bloodstains on the tools used to kill her.Weaver's DNA was not found on Horn's jeans, his penile swab, or his forearm swab.

At trial, Horn testified that on Friday, May 17, he had called his employer around 5 a.m. to see if he would be working that day.The employer had no work for him, so he began to drink.He remembered waking up after passing out on the couch and Weaver griping at him.He got up and ate something in the kitchen.Horn remembered the program Wheel of Fortune was on the television, which typically begins at 6:30 p.m.He returned to the couch and passed out again.It was dark when he woke up again and he learned he had urinated on himself.He got up, but did not remember what he did before he fell asleep again.

Horn testified that he first saw Weaver's body when he retrieved the newspaper.He started crying, got drunk again, and put a spread over her.He had no recollection of killing her.

ANALYSIS

Issue 1: Did the district court err by denying defendant's motion to suppress all evidence?

Horn filed a motion to suppress all the evidence found at the Weaver house, arguing that the officers' opening of the door and looking inside was the beginning of a search and seizure which violated his rights under the Fourth Amendment to the United States Constitution.His motion included his statements to the police, citing Wong Sun v. United States,371 U.S. 471, 485, 9 L. Ed. 2d 441, 83 S. Ct. 407(1963)(verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest is no less the fruit of official illegality than the more common tangible fruits of the unwarranted intrusion).After a hearing at which only Officer Johnson testified, the district court denied the...