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Man who killed girlfriend may be retried for reckless homicide

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The post-conviction court erred in denying Andrew McWhorter relief when he challenged his conviction of voluntary manslaughter in connection to the death of his girlfriend, the Indiana Court of Appeals concluded. McWhorter may not be retried on the same charge, but may face retrial for reckless homicide.

In December 2005, McWhorter was at home with his girlfriend, Amanda Deweese, and Barbara Gibbs, McWhorter’s grandmother. He shot Deweese in the head with a 12-gauge shotgun at close range, killing her. He admitted to shooting her but claimed he did not know the gun was loaded. The couple had argued prior to the shooting.

McWhorter was charged with murder, but the jury was instructed – without the objection of McWhorter’s attorney – on voluntary manslaughter and reckless homicide. McWhorter’s defense was that he had accidently killed Deweese. The jury found him guilty of Class A felony voluntary manslaughter.

His conviction was affirmed on direct appeal and the post-conviction court denied his petition for relief in January.

The Court of Appeals reversed in Andrew McWhorter v. State of Indiana, 33A01-1202-PC-72, finding McWhorter received ineffective assistance from his trial counsel. His attorney should have objected to the voluntary manslaughter instruction, wrote Judge L. Mark Bailey. The attorney acquiesced to the giving of an instruction that was not warranted by the evidence and invited a compromise or unreliable verdict.

The judges found the voluntary manslaughter instruction lacked evidentiary support regarding the presence of “sudden heat” and that the instruction prescribed sequential error for jury deliberation.

“The jury was led by the sequential error of the instruction to, as a practical matter, find that McWhorter did not knowingly or intentionally kill Deweese, but that he did knowingly or intentionally kill Deweese while acting in sudden heat. That which does not exist cannot be mitigated. Counsel’s failure to object was deficient performance,” Bailey wrote.

McWhorter was prejudiced as a result of his attorney’s performance. On remand, he can only be tried for reckless homicide.

 

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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

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  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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