TOPEKA—Douglas County District Court Judge Michael Malone will sit with the Kansas Supreme Court Thursday, Jan. 30, to hear oral arguments in a case the court remanded to the Johnson County District Court in 2011.
The Supreme Court appointed Judge Malone to join them to hear oral argument in Appeal No. 101,054: State of Kansas v. John Henry Horton. Malone was sitting with the court when it heard the appeal that resulted in the remand to district court.
Horton was convicted of first degree murder in October 2003. On appeal, the Supreme Court reversed the conviction, holding that the district court erroneously admitted evidence of Horton’s prior crimes, but it did not preclude future prosecution on new charges.
In March 2007, the state brought new charges against Horton, alleging he committed first-degree murder, or felony murder in the alternative. While the jury was deliberating, defense counsel asked the case be continued and to allow defense to present emerging evidence that had the potential to impact the jury’s view of the case. The court denied the request, stating it lacked authority, and Horton was convicted of felony murder.
Horton appealed the felony murder conviction on the premise that the district court abused its discretion by not reopening evidence.
In July 2011, the Supreme Court suspended the appeal to remand the case back to district court on the narrow issue of whether the district court should have reopened evidence presentation to allow the jury to hear evidence related to a recording of an inmate witness’ telephone conversation and any rebuttal evidence offered by the state.
On remand, the district court determined it “should not and would not have reopened the case” to allow the additional evidence.
The issue before the Supreme Court is whether the district court committed reversible error deciding to not reopen the case.
Malone has been on the Douglas County bench since 1982. He served as chief judge of the district from 1989 to 2003. He was an adjunct professor at The University of Kansas School of Law for 33 years and he served on the Patterned Jury Instructions and the Criminal Law Advisory committees to the Kansas Judicial Council. He has been appointed to sit with the Supreme Court a number of times during his career.