                                                                               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.




Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018                      Page 1 of 13
                                           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
      Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 2 of 13
        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).

Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 3 of 13
      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


      Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 4 of 13
      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


      Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 5 of 13
              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.




      Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 6 of 13
                                             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

       Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 7 of 13
       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.

       Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018                     Page 8 of 13
                                                   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.”

       Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018                   Page 9 of 13
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).

Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018                     Page 10 of 13
[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

       Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 11 of 13
       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



       Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018   Page 12 of 13
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.


Court of Appeals of Indiana | Opinion 33A01-1710-CR-2415 | December 26, 2018              Page 13 of 13
