Split COA affirms admission of dead eyewitness’ video testimony

A split Indiana Court of Appeals affirmed a man’s conviction for voluntary manslaughter after he fatally shot his fiancé, finding, among other things, no abuse of discretion in the admission of video testimony from a since-deceased eyewitness.

After accusing his fiancé of unfaithfulness, an intoxicated Andrew McWhorter shot Amanda Deweese in the head with a shotgun in December 2005, killing her. His grandmother, Barbara Gibbs, witnessed the shooting.

McWhorter was charged with murder but convicted of Class A felony voluntary manslaughter, enhanced as a habitual offender, and initially received an aggregate 75-year sentence. He was later granted post-conviction relief by the Indiana Court of Appeals and Supreme Court upon a reversal of his denied petition, but ultimately received the same conviction and sentence following a second jury trial.  

During the second trial in January 2017 – when the charging information was amended to include Class A felony voluntary manslaughter – the videotape of Gibbs’ previous trial testimony was played for the jury, as she had died prior to the second trial. In his second appeal, McWhorter contended the Henry Circuit Court abused its discretion in admitting Gibbs’ testimony from the first trial.

Though he conceded that Gibbs was unavailable at his second trial due to her death and that he had the opportunity to cross-examine her during his first trial, McWhorter argued he lacked a similar motive to develop Gibbs’ testimony during the first trial because his defense was one of accident and he did not interject the issue of sudden heat. But a majority of the Indiana Court of Appeals panel found that despite his contention, McWhorter was highly incentivized at his first trial to highlight any problem with Gibbs’ perception and recollection and to elicit from her any evidence that tended to negate or lessen his criminal culpability.

“The plain language of Rule 804(b)(1) requires only that the opponent have had a ‘similar’ motive to develop the former testimony,” Judge Cale Bradford wrote for the majority. “…(W)e 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’ former testimony.”

The majority further found that McWhorter’s due process rights were not violated and the the prohibition against double jeopardy did not barr his retrial for voluntary manslaughter in light of his previously acquitted murder conviction.

Citing to decisions issued in McWhorter’s previous appeal, the appellate court noted that the Indiana Supreme Court expressly directed that “neither the prohibition of double jeopardy nor the doctrine of collateral estoppel preclude[d] retrial for reckless homicide or voluntary manslaughter.” The majority, therefore, denied all three of McWhorter’s claims in Andrew McWhorter v. State of Indiana, 33A01-1710-CR-2415.

But in a separate dissenting opinion, Judge Mark L. Bailey, relying on Brantley v. State, 91 N.E.3d 566 (Ind. 2018), said voluntary manslaughter, as a standalone charge, is not a lesser included offense of murder. He also noted that Brantley held that “(t)he crime to be alleged and prove in a standalone charge of voluntary manslaughter is murder, albeit a mitigated murder… .”

“When the State pursued its standalone charge, McWhorter was again required to defend against the elements of murder,” Bailey wrote. “This is a classic example of double jeopardy.”  

Bailey further noted that the Brantley framework makes “sudden heat” not an element of murder, but “something in addition to murder.” In this case, the record was devoid of “sudden heat” based on DeWeese’s silence leading up to McWhorter’s act of shooting her, Bailey said.

“Here, the conduct which Deweese apparently admitted was long past. Too, sudden heat is not shown by anger alone or by mere words,” Bailey wrote. “…In my view, Deweese’s mere silence cannot conceivably be considered provocation.”

The dissenting judge thus argued that the conviction should be reversed and remanded for entry of judgment for criminal recklessness and for a new sentencing hearing.