Ineffective Assistance of Counsel

McWhorter v. State (Ind. Ct. App. July 9, 2012)

In this case, the defendant was convicted of voluntary manslaughter after being charged with murder. The defendant admitted that he had killed the victim, but claimed he had accidentally killed him. The jury was instructed on murder, voluntary manslaughter, and reckless homicide. The Court of Appeals agreed that the defendant’s trial counsel was ineffective for failing to object to the voluntary manslaughter instruction because it was not warranted by the evidence and invited a compromise or unreliable verdict. The Court then held that the defendant was prejudiced by the voluntary manslaughter instruction and vacated the manslaughter conviction. Finally, the Court held that principles of double jeopardy barred a re-trial for murder. The State is free to re-try the defendant only for reckless homicide. Reckless homicide is only a Class C felony, the punishment for which is a far cry from that for Murder or the Class A felony of voluntary manslaughter.

Any appellate practitioner who has a post-conviction relief case based on ineffective assistance of counsel should study this case carefully, even if the practitioner’s case does not involve murder or voluntary manslaughter convictions. The Court’s analysis of error, prejudicial error, and double jeopardy should apply in a variety of situations.

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