Andrew McWhorter v. State of Indiana, 2013 Ind. LEXIS 691

Background

Andrew McWhorter shot and killed his pregnant girlfriend, Amanda Deweese, at close range; McWhorter admitted firing but claimed the shooting was accidental.
Trial court instructed the jury on murder, voluntary manslaughter (sudden heat), and reckless homicide; defense counsel did not object to the voluntary manslaughter instruction.
Jury acquitted McWhorter of murder but convicted him of voluntary manslaughter; he was sentenced to 45 years plus habitual-offender enhancement.
On direct appeal the convictions were affirmed. McWhorter later filed a post-conviction petition alleging ineffective assistance of counsel for failing to object to a flawed voluntary manslaughter instruction.
The Court of Appeals agreed counsel was ineffective, vacated the manslaughter conviction, and held McWhorter could be retried for reckless homicide but not voluntary manslaughter.
Indiana Supreme Court granted transfer, reversed the post-conviction court, vacated the conviction, and held retrial on both voluntary manslaughter and reckless homicide is not barred.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not objecting to the voluntary manslaughter instruction	Instruction was structurally flawed, misstated law, and allowed jury to acquit murder yet convict of voluntary manslaughter; failure to object was ineffective assistance	State did not contest Court of Appeals’ finding of ineffective assistance	Court summarily affirmed Court of Appeals that counsel was ineffective (issue conceded on transfer)
Whether the flawed instruction and resulting verdict preclude retrial on voluntary manslaughter under double jeopardy	McWhorter: acquittal of murder on the verdict necessarily decided lack of intent, so retrial on voluntary manslaughter is barred	State: traditional double jeopardy principles allow retrial of lesser-included offenses when a conviction is reversed (unless reversed for insufficient evidence)	Retrial on voluntary manslaughter is not barred by double jeopardy; conviction vacated and remanded for retrial
Whether collateral estoppel/issue preclusion bars retrial on voluntary manslaughter	McWhorter: jury’s acquittal of murder necessarily decided the knowing-killing element, so issue preclusion applies	State: other issues (sudden heat) were reasonably in dispute and could explain acquittal; jury could have found knowing killing mitigated by sudden heat	Collateral estoppel does not bar retrial because a rational jury could have grounded acquittal on an issue other than lack of intent (e.g., sudden heat)
Whether the Court of Appeals’ reliance on Demontiney requires barring retrial for voluntary manslaughter	McWhorter relied on Demontiney to argue retrial barred due to logical inconsistency	State argued Indiana does not follow Demontiney and tolerates inconsistent jury verdicts; retrial permissible	Indiana Supreme Court declined to follow Demontiney; inconsistent verdicts are not reviewable and do not preclude retrial

Key Cases Cited

Demontiney v. Montana, 51 P.3d 476 (Mont. 2002) (state court reversed conviction and, under supervisory authority, barred retrial on lesser offense after acquittal on greater offense)
Beattie v. State, 924 N.E.2d 643 (Ind. 2010) (inconsistent jury verdicts in criminal cases are tolerated and not subject to appellate reversal)
Ashe v. Swenson, 397 U.S. 436 (U.S. 1970) (collateral estoppel prevents relitigation of an issue necessarily decided by prior acquittal)
Brown v. Ohio, 432 U.S. 161 (U.S. 1977) (conviction of greater offense precludes conviction of lesser-included offense in same prosecution)
Price v. Georgia, 398 U.S. 323 (U.S. 1970) (retrial for lesser offense allowed after reversal of conviction on appeal unless overturned for insufficient evidence)
Yeager v. United States, 557 U.S. 110 (U.S. 2009) (framework for determining what a jury’s verdict necessarily decided for collateral estoppel purposes)