Justices deny transfer to 2 cases that split COA

Il for www.theindianalawyer.com

The Indiana Supreme Court considered and denied 18 petitions for transfer last week, including two cases that drew concerns from members of the Indiana Court of Appeals.

Among the cases denied transfer last week was Andrew McWhorter v. State of Indiana, 33A01-1710-CR-2415. In that case, Andrew McWhorter was charged with murder and convicted of voluntary manslaughter after shooting and killing his fiancé, with his grandmother as an eyewitness to the crime. McWhorter was sentenced to an aggregate of 75 years, with the majority of an Indiana Court of Appeals panel ruling in Decemberthat the trial court did not err in admitting at his second trial the video testimony of his grandmother, who had died since the first trial.

The majority also saw no double jeopardy violation in amending the charging information at McWhorter’s second trial to include Class A felony voluntary manslaughter. But Judge L. Mark Bailey dissented on that point, believing voluntary manslaughter, as a standalone charge, is not a lesser included offense of murder.

The high court also declined to hear Ronald Richardson v. State of Indiana, 18A-CR-2263, which drew hesitation from an appellate judge regarding the dismissal of the only African-American from the pool of potential jurors in Ronald Richardson’s trial.

Richardson was convicted of Level 4 felony dealing in a narcotic drug following a police chase, and the appellate panel found a Batson challenge to the juror’s dismissal was not improper. The Fayette Circuit Court had determined the state had presented a race-neutral reason for striking the lone black potential juror.

But Judge Terry Crone, concurring in part and in result, wrote separately to express his concerns regarding the Batson analysis, finding the prosecutor’s reasons for striking the potential juror from the pool to be “race neutral on their face,” but contradictory and lacking in evidence.