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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. 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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