FOR PUBLICATION



ATTORNEYS FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                       GREGORY F. ZOELLER
Public Defender of Indiana                             Attorney General of Indiana

JAMES T. ACKLIN                                        JODI KATHRYN STEIN
Chief Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                                  Indianapolis, Indiana


                                                                              FILED
                                                                           Jul 12 2012, 9:20 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




ANDREW MCWHORTER,                              )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )      No. 33A01-1202-PC-72
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                      APPEAL FROM THE HENRY CIRCUIT COURT
                        The Honorable E. Edward Dunsmore, Judge
                              Cause No. 33C02-0806-PC-1



                                      July 12, 2012

                               OPINION - FOR PUBLICATION

BAILEY, Judge
                                      Case Summary

       Andrew McWhorter (“McWhorter”) appeals the denial of his petition for post-

conviction relief, wherein he challenged his conviction for Voluntary Manslaughter. He

presents the sole issue of whether he was denied the effective assistance of trial counsel. We

reverse and remand for retrial on Reckless Homicide.

                              Facts and Procedural History

       On direct appeal, the Court recited 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 Gibbs’ 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 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.



                                              2
        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).

McWhorter v. State, 33A01-0701-CR-2, slip op. at 2-4 (Ind. Ct. App. Aug. 9, 2007), trans.

denied.

        The State charged McWhorter with Murder. At trial, McWhorter conceded that he

had killed Deweese; the only contested issue was McWhorter’s intent. McWhorter’s defense

was that he had accidently killed Deweese; however, at the close of the evidence the jury was

instructed, without objection from defense counsel, on Voluntary Manslaughter and Reckless

Homicide.1

        On August 3, 2006, the jury returned the following verdict: “We, the jury, find the

Defendant, Andrew W. McWhorter, not guilty of murder, but guilty of voluntary

manslaughter, a Class A felony, as a lesser included offense of murder, a felony.” (App. 20.)


1
 It is not clear from the post-conviction and trial record as to whether the State proffered instructions on lesser
offenses or the trial court sua sponte drafted the combined instruction given. It is clear, however, that the jury
did not receive such instruction upon McWhorter’s initiative.

                                                        3
The following day, McWhorter was adjudicated a habitual offender. He was sentenced to

forty-five years imprisonment, enhanced by thirty years due to his status as a habitual

offender. His conviction was affirmed on direct appeal. See id.

       On June 12, 2008, McWhorter filed a pro-se petition for post-conviction relief; his

petition was amended on September 21, 2011. On November 18, 2011, the post-conviction

court conducted an evidentiary hearing upon the allegation of ineffectiveness of trial counsel.

On January 24, 2012, the post-conviction court entered its Findings of Fact, Conclusions of

Law, and order denying McWhorter post-conviction relief. He now appeals.

                                  Discussion and Decision

                            Post-Conviction Standard of Review

       The petitioner in a post-conviction proceeding bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-

conviction relief, the petitioner stands in the position of one appealing from a negative

judgment. Id. On review, we will not reverse the judgment of the post-conviction court

unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite

that reached by the post-conviction court. Id. A post-conviction court’s findings and

judgment will be reversed only upon a showing of clear error, that which leaves us with a

definite and firm conviction that a mistake has been made. Id. In this review, findings of

fact are accepted unless they are clearly erroneous and no deference is accorded to

conclusions of law. Id. The post-conviction court is the sole judge of the weight of the


                                              4
evidence and the credibility of witnesses. Id.

                    Effectiveness of Trial Counsel Standard of Review

       To establish a post-conviction claim alleging a violation of the Sixth Amendment right

to effective assistance of counsel, a defendant must establish the two components set forth in

Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that counsel’s

performance was deficient.”        Id. at 687.     This requires a showing that counsel’s

representation fell below an objective standard of reasonableness and that “counsel made

errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by

the Sixth Amendment.” Id. “Second, a defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial,” that is, a trial where the result is reliable. Id. To

establish prejudice, a “defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. A reasonable probability is one that is sufficient to undermine confidence in the

outcome. Id. Further, we “strongly presume” that counsel provided adequate assistance and

exercised reasonable professional judgment in all significant decisions. McCary v. State, 761

N.E.2d 389, 392 (Ind. 2002).

                                           Analysis

       McWhorter claims that his trial attorney was ineffective for failing to object to the

Voluntary Manslaughter instruction given to the jury. We agree, as defense counsel




                                               5
acquiesced to the giving of an instruction that (1) was not warranted by the evidence and (2)

invited a compromise or unreliable verdict.

       A defendant is entitled to have a jury properly instructed on an essential rule of law.

Palmer v. State, 573 N.E.2d 880, 880 (Ind. 1991).               In evaluating allegations of

ineffectiveness in this regard, we look to the law available at the time of counsel’s

representation to determine whether a proper objection would have been sustained. Walker

v. State, 843 N.E.2d 50, 59 (Ind. Ct. App. 2006), trans. denied.

       Indiana’s voluntary manslaughter statute provides:

       (a)    A person who knowingly or intentionally:
              (1)    kills another human being; or
              (2)    kills a fetus that has attained viability (as defined in IC 16-18-2-
                  365);
       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.

       (b)       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.

Ind. Code § 35-42-1-3. “Sudden heat” is characterized as “anger, rage, resentment, or terror

sufficient to obscure the reason of an ordinary person, preventing deliberation and

premeditation, excluding malice, and rendering a person incapable of cool reflection.”

Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). It is not an element of Voluntary

Manslaughter. Boesch v. State, 778 N.E.2d 1276, 1279 (Ind. 2002). Rather, it is that which

distinguishes Voluntary Manslaughter from Murder. Id. Although Voluntary Manslaughter

is a lesser-included offense of Murder, it is an atypical example of a lesser-included offense.


                                               6
Watts v. State, 885 N.E.2d 1228, 1231 (Ind. 2008). “In the case of voluntary manslaughter

… sudden heat is a mitigating factor, not an element, that the State must prove in addition to

the elements of murder. . . . [I]f there is no serious evidentiary dispute over sudden heat, it is

error for a trial court to instruct a jury on voluntary manslaughter in addition to murder.” 2 Id.

at 1232 (emphasis in original).

         The theory of McWhorter’s defense was that an accidental shooting had occurred;

defense counsel employed an “all or nothing” strategy seeking acquittal while realizing that

the jury might instead convict McWhorter of Murder. The State did not initially charge

McWhorter with Voluntary Manslaughter, and the trial court could properly have given a

Voluntary Manslaughter instruction over McWhorter’s objection only in the face of a serious

evidentiary dispute as to whether the lesser offense was committed but the greater was not.

See id. An unsupported Voluntary Manslaughter instruction deprives the defendant of the

opportunity to pursue a legitimate trial strategy. Id. at 1233.

        Here, any testimony that might have arguably approached evidence of “sudden heat”

was elicited by the State from McWhorter’s grandmother. She testified that McWhorter and

Deweese had argued about Deweese having a sexual encounter with someone other than

McWhorter while she was pregnant with McWhorter’s child. McWhorter had expressed

anger by stepping on and throwing Deweese’s engagement ring. Anger alone is not

sufficient to support an instruction on sudden heat; nor will words alone constitute sufficient
2
 Where a defendant has produced evidence of sudden heat, the State may not obtain a conviction for Murder,
as opposed to Voluntary Manslaughter, unless the State has negated the evidence of sudden heat. “It bears
repeating that only when evidence of sudden heat is presented does the State assume the burden of proving the
absence of sudden heat to obtain a murder conviction.” Massey v. State, 955 N.E.2d 247, 255 n.4 (2011)
(emphasis in original).

                                                     7
provocation to warrant the instruction, particularly when the words at issue are not

intentionally designed to provoke the defendant. Suprenant v. State, 925 N.E.2d 1280, 1282

(Ind. Ct. App. 2010), trans. denied. In Suprenant, a panel of this Court concluded that

alleged provocation “comprised of words ending a relationship accompanied by preparations

to leave” did not constitute “sudden heat” justifying a Voluntary Manslaughter instruction.

925 N.E.2d at 1284. In this case, there was merely a verbal admission. Although Deweese

had admitted to being with a man other than McWhorter at some time in the past, there is no

evidence that she offered any provocation whatsoever beyond “mere words.” The Voluntary

Manslaughter instruction lacked evidentiary support.

       Moreover, the instruction prescribed sequential error for jury deliberation. Final

Instruction No. 3 provided in relevant part:

       The Defendant is charged with murder. Voluntary manslaughter and reckless
       homicide are lesser included offenses in the charge of murder. If the State
       proves the Defendant guilty of murder, you need not consider the included
       crimes. However, if the State fails to prove the Defendant committed murder,
       you may consider whether the Defendant committed voluntary manslaughter or
       reckless homicide, which the Court will define for you.

       You must not find the Defendant guilty of more than one crime.

       The statute defining the offense of Murder which was in force at the time of
       the offense charged reads as follows:

             35-42-1-1. Murder A person who: knowingly … kills another human
       being … commits murder, a felony.

       To convict the Defendant, the State must have proved each of the following
       elements:
             1.     The Defendant
             2.     knowingly
             3.     killed

                                               8
       4.     Amanda L. Deweese

        If the State failed to prove each of these elements beyond a reasonable
doubt, you must find the Defendant not guilty of murder, a felony, as charged
in the Information.

You may then consider any included crime. The crime of voluntary
manslaughter is included in the charged crime of murder. Voluntary
manslaughter is defined by statute as follows:

A person who knowingly … kills another human being while acting under
sudden heat commits voluntary manslaughter, a Class B felony. The offense is
a Class A felony if it is committed by means of a deadly weapon.

Sudden heat is a mitigating factor that reduces what otherwise would be
murder to voluntary manslaughter. The State has the burden of proving
beyond a reasonable doubt that the Defendant was not acting under sudden
heat.

Before you may convict the Defendant, the state must have proved each of the
following beyond a reasonable doubt:

1.     The Defendant
2.     knowingly
3.     killed
4.     Amanda Deweese
5.     and the Defendant was not acting under sudden heat
6.     and the Defendant killed by means of a deadly weapon.

If the State failed to prove each of elements 1 through 4 of the crime of murder
beyond a reasonable doubt, you must find the Defendant not guilty of murder
as charged.

If the State did prove each of elements 1 through 4 and element 6 beyond a
reasonable doubt, but the State failed to prove beyond a reasonable doubt
element 5, you may find the Defendant guilty of voluntary manslaughter, a
Class A felony, a lesser included offense of murder. If this is your finding but
that the Defendant did not do so by means of a deadly weapon, you may find
the Defendant guilty of voluntary manslaughter, a Class B felony, a lesser
included offense of murder. If the State proves the Defendant guilty of
voluntary manslaughter, you need not consider the next included crime.


                                       9
       If the State did prove each of elements 1 through 5 beyond a reasonable doubt,
       you may find the Defendant guilty of murder, a felony.

(App. 25-26.) (emphasis added.)

       As such, the inartfully drafted instruction directed the jury to proceed, upon a failure

of proof of one or more of the elements of Murder, to consider the lesser charge of Voluntary

Manslaughter. However, the only element in dispute was intent. 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.

       We then must consider whether McWhorter was prejudiced such that the result of the

trial was unreliable. The State asserts that a jury can acquit a defendant of Murder while

convicting of Voluntary Manslaughter and has historically done so in many cases. We do not

disagree. However, that result should ensue only upon proper instruction. The purpose of

jury instruction is to inform the jury of the law applicable to the facts of a particular case.

Williams v. State, 782 N.E.2d 1039, 1047 (Ind. Ct. App. 2003), trans. denied. Presumably, a

jury acts in obedience to the trial court’s instructions. See Chandler v. State, 581 N.E.2d

1233, 1237 (Ind. 1991).

       Here, with intent the only element in dispute, the jury was advised that McWhorter

could be convicted of Voluntary Manslaughter if less than all the elements of Murder were

proven. Indeed, the jury was directed to proceed with consideration of the Voluntary

Manslaughter charge only if there had been a failure of proof as to one or more of the

                                              10
elements of Murder, which are also elements of Voluntary Manslaughter. A finding that less

than all the elements of Murder were proven is, in these circumstances, necessarily a finding

that the requisite intent was not established. We find that the instruction to proceed to

consider Voluntary Manslaughter only upon a failure of proof of Murder invites

inconsistency and renders the result of the trial unreliable. McWhorter was prejudiced in that

he ultimately stood convicted of Voluntary Manslaughter, an offense not initially charged by

the State and one upon which McWhorter did not proffer evidence or request instruction.

The post-conviction court erred by not granting McWhorter relief upon his ineffectiveness of

counsel claim.

       McWhorter further argues that he may not be retried on the Voluntary Manslaughter

charge because retrial would violate the double jeopardy principles of the United States

Constitution. The Fifth Amendment guarantee against double jeopardy bars a defendant

from being prosecuted for an offense after being acquitted for the same offense. Griffin v.

State, 717 N.E.2d 73, 77 (Ind. 1999). The State responds that the jury is able to differentiate

between offenses and, in finding McWhorter not guilty of Murder, acquitted him only of an

“intentional killing” and did not intend to acquit him of Voluntary Manslaughter. State’s

Brief at 22.

       To ascribe this intent to the jury, as the State urges, would require that we disregard

the explanation of law given to the jury and render the instruction superfluous. The jury was

directed to convict McWhorter of Murder only upon proof that (1) McWhorter (2) knowingly

(3) killed (4) Amanda Deweese. (App. 25.) The jury was further instructed to proceed to


                                              11
consideration of Voluntary Manslaughter only if one or more elements of Murder were not

proven. However, the elements of Murder are also requisite elements of Voluntary

Manslaughter. Because intent was the only contested element, the failure of proof was as to

that element. The jury returned a joint verdict form, stating that McWhorter was not guilty of

Murder but guilty of Voluntary Manslaughter.3                   This contemporaneous verdict form

functioned as an acquittal of Voluntary Manslaughter, which requires the same intent as

Murder.

          McWhorter may not be retried on the charges of which he was acquitted. However, as

he concedes, he may be retried on Reckless Homicide, the offense upon which the jury

returned no verdict, and the elements of which differ from Murder and Voluntary

Manslaughter.4

                                                Conclusion

          McWhorter has established that he was denied the effective assistance of trial counsel.

    Accordingly, we reverse the denial of post-conviction relief. McWhorter may be retried on

the charge of Reckless Homicide.

          Reversed and remanded.

ROBB, C.J., and MATHIAS, J., concur.

3
  Thus, the deliberations had culminated in a verdict. We acknowledge that a jury is not prohibited by double
jeopardy principles from revisiting or reconsidering its initial conclusion on a given issue during its
deliberations but prior to rendering a verdict. Blueford v. Arkansas, 132 S. Ct. 2044, 2052 (2012). In
Blueford, the jury had been instructed to proceed to consider a lesser-included offense if it had reasonable
doubt of guilt of the greater charge, and the jury foreperson had reported to the court that the jury was
unanimous against a finding of guilt on the greater offense. Id. at 2051. A report, but no verdict, having been
rendered, the defendant could properly be retried after the declaration of a mistrial. Id.
4
    One commits Reckless Homicide when he recklessly kills another human being. Ind. Code § 35-42-1-5.

                                                     12
