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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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