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Double jeopardy does not prohibit state from retrying defendant on lesser charge

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Although a man’s conviction was overturned, the Indiana Supreme Court has ruled he can still be retried on the same charge without violating double jeopardy prohibitions because “a rational jury” would have considered more than one element of the crime.

Andrew McWhorter was charged with murder following the shooting death of his girlfriend. At trial, the court also instructed the jury on voluntary manslaughter and reckless homicide.

The jury found McWhorter not guilty of murder but guilty of voluntary manslaughter.

McWhorter filed a post-conviction relief petition, contending the jury instruction was flawed since both murder and voluntary manslaughter contain the element that the defendant knowingly killed another person. He argued the court permitted the jury to re-deliberate the elements of murder when considering voluntary manslaughter even though it had already acquitted him of the higher charge.

The post-conviction court denied McWhorter’s petition. McWhorter appealed and the Indiana Court of Appeals reversed the judgment of the post-conviction court. However, when it remanded the case, it included the instructions that McWhorter may be retried on the charge of reckless homicide but not on a charge of voluntary manslaughter.

The state appealed to the Supreme Court, challenging the COA’s restriction on the charge with which McWhorter can be retried.

Based on the arguments McWhorter presented in his post-conviction relief petition, he asserted that retrying him on voluntary manslaughter would be double jeopardy.

He pointed out both the definition of murder and voluntary manslaughter share the same element that the defendant “knowingly killed” the victim. By finding him not guilty of murder, the jury has already determined he did not knowingly kill his girlfriend and, therefore the state should not be allowed another opportunity to present the issue.

In Andrew McWhorter v. State of Indiana, 33S01-1301-PC-7, the Supreme Court found no prohibition on retrying for reckless homicide or voluntary manslaughter. It noted other elements are included in the definitions of the two charges so “knowingly killed” was not the only single rationally conceivable issue in dispute before the jury.

 “…we conclude that a rational jury could have based McWhorter’s acquittal on an issue other than whether he acted knowingly,” Justice Robert Rucker wrote for the court. “Particularly given the presence of an instruction on voluntary manslaughter (flawed though it may have been), it is certainly conceivable that a rational jury could have determined that McWhorter acted knowingly but did so under mitigating circumstances.’


 

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  1. Is it possible to amend an order for child support due to false paternity?

  2. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  3. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  4. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  5. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

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