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Thursday, July 12, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Andrew McWhorter v. State of Indiana , a 12-page opinion, Judge Bailey writes:

Andrew 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. * * *

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 acquiesced to the giving of an instruction that (1) was not warranted by the evidence and (2) invited a compromise or unreliable verdict. * * *

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. * * *

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. * * *

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.

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.

NFP civil opinions today (3):

In the Matter of Child Alleged to be a Child in Need of Services: D.L. (Minor Child), and K.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of T.A.B.; T.B. (Father) v. The Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

Norrene Sullivan v. Kindred Nursing Center (NFP)

NFP criminal opinions today (7):

Robert L. Jackson v. State of Indiana (NFP)

Anthony K. McCullough v. State of Indiana (NFP)

Jocelyn Allen v. State of Indiana (NFP)

Jeffrey A. Booth v. State of Indiana (NFP)

Alexandro Prado v. State of Indiana (NFP)

Anthony Ray Ewing v. State of Indiana (NFP)

Kevin Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on July 12, 2012 10:36 AM
Posted to Ind. App.Ct. Decisions