Andrew McWhorter v. State of Indiana , 117 N.E.3d 614 ( 2018 )

FILED
Dec 26 2018, 8:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael K. Ausbrook Curtis T. Hill, Jr.
Bloomington, Indiana Attorney General of Indiana
Maurer School of Law Federal Habeas Andrew A. Kobe
Project Section Chief, Criminal Appeals
Indianapolis, Indiana
Sarah Brown, Law Student
Ashley Moore, Law Student
Davin Shaw, Law Student
Michael Smyth, Law Student
Elmer Thoreson, Law Student
IN THE
COURT OF APPEALS OF INDIANA
Andrew McWhorter, December 26, 2018
Appellant-Defendant, Court of Appeals Case No.
33A01-1710-CR-2415
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Bob Witham,
Appellee-Plaintiff. Judge
Trial Court Cause No.
33C01-0512-MR-1
Bradford, Judge.
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Case Summary
[1] In 2006, Andrew McWhorter was convicted of Class A felony voluntary
manslaughter. That conviction was reversed after McWhorter sought post-
conviction relief (“PCR”) and the matter was remanded for retrial. Following
retrial, he was again convicted of Class A felony voluntary manslaughter.
McWhorter challenges this conviction, contending that (1) the trial court
abused its discretion in admitting certain evidence, (2) his due process rights
were violated during his prior trial, and (3) he was subjected to double jeopardy.
Concluding that McWhorter’s contentions are without merit, we affirm.
Facts and Procedural History
[2] Upon considering McWhorter’s first direct appeal, we set forth the relevant
facts as follows:
In December 2005, McWhorter, Amanda Deweese (Deweese),
and their baby were living with Barbara Gibbs (Gibbs),
McWhorter’s grandmother. On December 2, 2005, inside Gibb’s
home, McWhorter shot Deweese in the head with a twelve-gauge
shotgun at close range causing her death.
Earlier that night, both Deweese and McWhorter visited Janis
Floyd’s (Floyd) home. Floyd observed Deweese acting nervous
and crying, and observed that McWhorter smelled of alcohol.
Meanwhile, Gibbs attended a Christmas show, arriving home
about 10:45 p.m. Shortly after she arrived home McWhorter and
Deweese came home as well. The two argued. Just as Floyd
observed, Gibbs could tell that McWhorter was intoxicated.
A few moments later, Deweese and Gibbs were sitting in the
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kitchen and McWhorter came in carrying a shotgun. He told
Gibbs, “I’m going to show you how to use this gun[,] grandma,
in case [you ever] need it.” (Transcript p. 122). Gibbs told
McWhorter to put the gun away. McWhorter placed the gun on
the table and began loading and unloading it repeatedly.
Eventually McWhorter took the gun out of the room.
Around this time, McWhorter confronted Deweese about her
having intercourse with another man while she was pregnant
with their baby. McWhorter asked for the return of the
engagement ring that he had given Deweese. She took it off and
handed it to him. He threw it on the floor and stepped on it.
Gibbs picked the ring up, handed it to Deweese, and McWhorter
asked for it again. Deweese gave it back and McWhorter threw it
again, this time into a bedroom.
McWhorter went into the room where he had thrown the ring
and stayed there for a while. During this time, Gibbs was sitting
across the kitchen table from Deweese, facing her and
McWhorter was standing behind Gibbs facing Deweese. Gibbs
and Deweese were talking about whether McWhorter might try
to kill himself. “[T]he next thing [Gibbs] knew, [she] heard a
boom.” (Tr. p. 126). Gibbs could see Deweese and quickly
realized Deweese had been shot. Gibbs turned around and saw
McWhorter standing close by. Gibbs asked what had happened
and McWhorter said “oh no, oh no”, and started screaming and
carrying on. (Tr. p. 135). While Gibbs called 911, McWhorter
said, “I didn’t know there was a shell in it,” and left the room.
(Tr. p. 135).
Henry County Deputy Sheriff Ken Custer (Deputy Custer) was
the first officer on the scene. He asked her what had happened
and she stated that “[McWhorter] shot [Deweese].” (Tr. p. 168).
Supporting officers then arrived. The officers found McWhorter
in the house lying behind a baby crib and a shotgun lying inside
the crib. After McWhorter was taken into custody, he said on
two occasions, “I shot her.” (Tr. pp. 174-176).
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McWhorter v. State, 33A01-0701-CR-2, slip op. at 2–4 (Ind. Ct. App. Aug. 9,
2007) (“McWhorter I”), trans denied.
[3] The State charged McWhorter with murder and alleged that he was a habitual
offender. Id. at *4. Following trial, the jury found McWhorter guilty of Class
A felony voluntary manslaughter and determined that he was indeed a habitual
offender. Id. He was subsequently sentenced to “forty-five years for voluntary
manslaughter, enhanced by thirty years as a Habitual Offender, for an aggregate
sentence of seventy-five years.” Id. His conviction was affirmed on appeal. Id.
at *10.
[4] In 2008, McWhorter filed a PCR petition, alleging that his trial counsel was
ineffective for failing to object to the voluntary manslaughter instruction that
was given to the jury. On January 24, 2012, the post-conviction court denied
McWhorter relief. A panel of this court reversed the denial of PCR, concluding
that McWhorter had not received effective assistance of trial counsel and that
he could only be retried on a charge of reckless homicide. McWhorter v. State,
970 N.E.2d 770, 779 (Ind. Ct. App. 2012) (“McWhorter II”), transfer granted,
opinion vacated, 993 N.E.2d 1141 (Ind. 2013) (“McWhorter III”).
[5] On transfer, the Indiana Supreme Court agreed that McWhorter was entitled to
PCR and accordingly reversed the judgment of the post-conviction court,
vacated McWhorter’s conviction for voluntary manslaughter, and remanded for
retrial. McWhorter III, 993 N.E.2d at 1148. The Indiana Supreme Court,
however, concluded that “neither the prohibition of double jeopardy nor the
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doctrine of collateral estoppel preclude retrial for reckless homicide or voluntary
manslaughter.” Id.
[6] On January 25, 2017, the State amended the charging information to include
the charge of Class A felony voluntary manslaughter. By the time of
McWhorter’s retrial, Gibbs was deceased. The videotape of Gibbs’s previous
trial testimony was played for the jury, over McWhorter’s objection. On June
28, 2017, the jury found McWhorter guilty of the Class A felony voluntary
manslaughter charge and McWhorter admitted to being a habitual offender.
He was subsequently sentenced to an aggregate seventy-five-year sentence.
Discussion and Decision
I. Admission of Evidence
[7] McWhorter contends that the trial court abused its discretion in admitting
Barbara Gibbs’s testimony from the first trial. “The decision to admit former
testimony of an unavailable witness is within the sound discretion of the trial
court” and we “will not reverse absent a showing of manifest abuse of the trial
court’s discretion resulting in the denial of a fair trial.” Burns v. State, 91 N.E.3d
635, 639 (Ind. Ct. App. 2018) (internal citation and quotation omitted).
While prior testimony is hearsay, Indiana Rule of Evidence 804
provides an exception to its exclusion if the declarant is
unavailable. To be considered unavailable, the declarant must be
unable to testify because of death or a then-existing infirmity,
physical illness, or mental illness. If a witness is determined
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unavailable, former testimony given at a trial, hearing, or lawful
deposition is not excluded by the hearsay rule.
Id. (internal quotations omitted). The exception applies if the testimony “(A)
was given [by] a witness at a trial, hearing or lawful deposition, whether given
during the current proceeding or a different one; and (B) is now offered against
a party who had … an opportunity and similar motive to develop it by direct,
cross-, or redirect examination.” Ind. Evidence Rule 804(b)(1).
[8] McWhorter concedes that Gibbs was unavailable at his second trial and that he
had the opportunity to cross-examine her during his first trial. McWhorter
claims, however, that he lacked a similar motive to develop Gibbs’s testimony
during the first trial because his defense was one of accident and he did not
interject the issue of sudden heat.
[9] The plain language of Rule 804(b)(1) requires only that the opponent have had
a “similar” motive to develop the former testimony. At McWhorter’s trial on
the charge of murder, Gibbs was the sole eyewitness testifying. McWhorter
was highly incentivized to highlight any problem with her perception and
recollection and to elicit from her any evidence that tended to negate or lessen
his criminal culpability. Thus, we conclude that McWhorter had a similar
motive in both his first and second trials. As such, we cannot say that the trial
court abused its discretion by admitting Gibbs’s former testimony.
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II. Due Process
[10] McWhorter also contends that his “right to federal due process was violated
when he was convicted the first time of voluntary manslaughter as a Class A
felony, a charge not included in the information in any way and for which
neither the State nor McWhorter requested an instruction.” Appellant’s Br. pp.
29–30. That conviction, which resulted from McWhorter’s first trial, was
reversed. We agree with the State that McWhorter, in pursuing this particular
issue on appeal, “has not alleged let alone shown that he was denied due
process in his second trial.” Appellee’s Br. p. 14.
III. Double Jeopardy
[11] McWhorter last contends that because he was acquitted of murder in his first
trial, the prohibition against double jeopardy barred his retrial for voluntary
manslaughter. We disagree. It is well-settled that “a defendant may be retried
for a lesser offense, of which he was convicted at the first trial, after that
conviction is reversed on appeal, and this is true even though the first trial also
resulted in a verdict of acquittal on a greater offense.” Griffin v. State, 717
N.E.2d 73, 78 (Ind. 1999) (citing Price v. Georgia, 398 U.S. 323, 326–27 (1970)).
[12] At the conclusion of McWhorter’s first trial, the jury found him “not guilty of
murder, but guilty of voluntary manslaughter, a Class A felony, as a lesser
included offense of murder, a felony.” McWhorter III, 993 N.E.2d at 1143. In
McWhorter III, the Indiana Supreme Court found that while McWhorter was
“acquitted of murder,” “[i]t is clear that traditional federal double jeopardy
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jurisprudence does not preclude retrying McWhorter for voluntary
manslaughter.” Id. at 1146. The Supreme Court additionally found that the
doctrine of collateral estoppel, i.e., issue preclusion, did not bar retrial of a
voluntary manslaughter charge. Id. at 1147–48. Thus, the Indiana Supreme
Court expressly directed that “neither the prohibition of double jeopardy nor
the doctrine of collateral estoppel preclude retrial for reckless homicide or
voluntary manslaughter.”1 Id. at 1148. Given the Indiana Supreme Court’s
decision in McWhorter III, we reject McWhorter’s double jeopardy contention.2
[13] The judgment of the trial court is affirmed.
Brown, J., concurs.
Bailey, J, dissents with opinion.
1
McWhorter’s double jeopardy arguments have also been rejected by the federal courts. See McWhorter v.
Neal, 1:14-cv-01098-WTL-DML (7th Cir. July 17, 2015), cert. denied.
2
To the extent that McWhorter III only considered McWhorter’s arguments in the context of the Fifth
Amendment to the United States Constitution, we conclude that the principles relied on by the Indiana
Supreme Court apply equally to Article I, § 14, of the Indiana Constitution. Thus, for the same reasons as
are stated above, we further conclude that McWhorter’s double jeopardy claim fails under the Indiana
Constitution.
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IN THE
COURT OF APPEALS OF INDIANA
Andrew McWhorter, Court of Appeals Case No.
33A01-1710-CR-2415
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Bailey, Judge, dissenting.
[14] I fully agree with my colleagues that “a defendant may be retried for a lesser
offense, of which he was convicted at the first trial, after that conviction is
reversed on appeal, and this is true even though the first trial also resulted in a
verdict of acquittal on a greater offense.” Griffin v. State, 717 N.E.2d 73, 78
(Ind. 1999). However, voluntary manslaughter, as a standalone charge, is not a
“lesser” offense of murder.3 Our Indiana Supreme Court has made this clear
3
In 2005, when McWhorter killed Deweese, Indiana Code Section 35-42-1-1 defined murder as the knowing
or intentional killing of another human being. Indiana Code Section 35-42-1-3 provided that “a person who
knowingly or intentionally (1) kills another human being … while acting under sudden heat commits
voluntary manslaughter, a Class B felony. However, the offense is a Class A felony if it is committed by
means of a deadly weapon.” Subsection (b) stated: “The existence of sudden heat is a mitigating factor that
reduces what otherwise would be murder under section 1(1) of this chapter to voluntary manslaughter.”
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when, after McWhorter III was decided, the Court issued its opinion in Brantley
v. State, 91 N.E.3d 566 (Ind. 2018). The Court addressed the availability of a
standalone charge of voluntary manslaughter and the burden of proof in such
an action. Our Supreme Court considered “whether voluntary manslaughter
may be brought as a standalone charge” by the State and found that it could.
Id. at 570-71. Turning to the merits, the Court made three specific observations:
One, sudden heat is a mitigating factor, not an element. … Two,
there must be some evidence that a defendant acted in sudden
heat before a jury may consider voluntary manslaughter. As
such, to the extent the State argues it can concede the existence
of sudden heat without evidence of such in the record, we
disagree. Three, even when voluntary manslaughter is the lead
charge, the State must prove the elements of murder: the
knowing or intentional killing of another human being.
Id. at 572. In sum, the crime of voluntary manslaughter does not include a
unique element of sudden heat.4 The crime to be alleged and proven in a
standalone charge of voluntary manslaughter is murder, albeit a mitigated
murder, i.e., a diminished mens rea. Yet because sudden heat is not an
element, voluntary manslaughter is lesser only in the degree of punishment not
proof.
Pursuant to Indiana Code Section 35-42-1-5, a person committed reckless homicide when he recklessly killed
another human being.
4
I acknowledge that our supreme court has previously described voluntary manslaughter as an inherently
included lesser offense of murder, with a distinguishing element of sudden heat. See Washington v. State, 808
N.E.2d 617, 625 (Ind. 2004).
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[15] As an intermediate appellate court, we are bound to follow Indiana Supreme
Court precedent and will not declare its decision to be invalid. Gill v. Gill, 72
N.E.3d 945, 949 (Ind. Ct. App. 2017). The Brantley Court clarified that, “even
when voluntary manslaughter is the lead charge, the State must prove the
elements of murder.” 91 N.E.3d at 572. But when McWhorter was tried on
the standalone charge of voluntary manslaughter, he had already been tried for
murder. See McWhorter I, McWhorter II, and McWhorter III. Upon that charge,
“McWhorter was acquitted of murder[.]” McWhorter III, 993 N.E.2d at 1146.
When the State pursued its standalone charge, McWhorter was again required
to defend against the elements of murder. This is a classic example of double
jeopardy. An explicit acquittal terminates jeopardy on the acquitted charge and
does so “notwithstanding any legal error.” Evans v. Michigan, 568 U.S. 313, 328
(2013). To the extent that McWhorter III and Brantley may be seen as
conflicting, we should follow the latter guidance of our supreme court specific
to a standalone charge.
[16] Effectively, these decisions suggest that there is a lesser or diminished capacity
below knowing and intentional because of the emotional response to a sudden
event, i.e., sudden heat. This “sudden heat” arises from provocation which is
absent in this case. Yet, given the framework presented to us, “sudden heat” is
not an element of murder, rather it is something in addition to murder.
[17] Finally, I observe that the record here is devoid of evidence of “sudden heat” as
that has been defined by our Indiana Supreme Court. Sudden heat exists
“when a defendant is ‘provoked by anger, rage, resentment, or terror, to a
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degree sufficient to obscure the reason of an ordinary person, prevent
deliberation and premeditation, and render the defendant incapable of cool
reflection.’” Brantley, 91 N.E.3d at 572 (quoting Isom v. State, 31 N.E.3d 469,
486 (Ind. 2015)). Here, McWhorter was simply not “provoked.” See id.[18] The prosecutor urged the jury to consider McWhorter’s likely perception that
the relationship was ending from Deweese’s silence in the face of McWhorter’s
accusations and his stomping of the engagement ring. Clearly, the record
indicates that McWhorter was agitated after dwelling upon events that had
apparently happened many months earlier, and he may well have been facing
the prospect of a breakup. But even if Deweese’s affair constituted “sudden
heat,” the existence of “sudden heat” can be negated by a showing that a
sufficient “cooling off period” elapsed between provocation and homicide.
Morrison v. State, 588 N.E.2d 527, 531-32 (Ind. Ct. App. 1992). Here, the
conduct which Deweese apparently admitted was long past. Too, sudden heat
is not shown by anger alone or by mere words. Suprenaut v. State, 925 N.E.2d
1280, 1282 (Ind. Ct. App. 2010), trans. denied. In my view, Deweese’s mere
silence cannot conceivably be considered provocation.
[19] McWhorter admits that he killed a person and that he acted recklessly. For an
act of voluntary manslaughter, coupled with enhancements for past conduct, he
received a prison sentence of seventy-five years. I would reverse and remand
with instructions to enter judgment on criminal recklessness and conduct a new
sentencing hearing. On remand, while McWhorter is subject to a lesser
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sentence for criminal recklessness, this sentence is nevertheless subject to
enhancement.5
5
McWhorter does not contest the jury’s determination that he is a habitual offender.
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