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McWhorter v. State

Court of Appeals of Indiana

December 26, 2018

Andrew McWhorter, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Henry Circuit Court The Honorable Bob Witham, Judge Trial Court Cause No. 33C01-0512-MR-1

          ATTORNEY FOR APPELLANT Michael K. Ausbrook Bloomington, Indiana Maurer School of Law Federal Habeas Project Sarah Brown, Law Student Ashley Moore, Law Student Davin Shaw, Law Student Michael Smyth, Law Student Elmer Thoreson, Law Student

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Andrew A. Kobe Section Chief, Criminal Appeals Indianapolis, Indiana

          BRADFORD, JUDGE.

         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 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 ...

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