Murder conviction reversed over failure to allow evidence that twin committed the crime

A trial court erred in excluding evidence that the defendant’s twin brother committed the murder and other crimes for which he was convicted, the Western District Court of Appeals ruled on June 18, reversing his conviction and life sentence.

JaHuan Whirley was indicted on one count of murder in the second degree, one count of assault in the first degree, two counts of armed criminal action, two counts of attempted robbery in the first degree and unlawful use of a weapon.

The state — which initiated the case under the juvenile code and later moved to certify Whirley as an adult — alleged that Whirley attempted to rob A.M. and J.R.K., and in the process caused serious physical injury to A.M. and murdered J.R.K.

Whirley filed a motion to dismiss the charges, arguing in part that his certification counsel was ineffective.

The trial court denied the motion, as well as a subsequent motion to suppress evidence seized from his home.

During the trial, evidence was presented that Whirley approached the victims in December 2018 while they were smoking outside their Jefferson City apartments.

Whirley pulled out a black Glock 9-mm semiautomatic handgun with an extended magazine and said, “Give me your shit.” He wore a gray or silver hooded sweatshirt and black ski mask.

The victims and Whirley exchanged words, and Whirley shot A.M. three times and J.R.K. four times.

Whirley denied involvement in the shooting but matched the description that A.M. had provided to the police. His mother consented to a search of her home, where Whirley lived, and officers found a bag with the murder weapon, 9-mm ammunition matching that found at the crime scene and a gray hooded sweatshirt and black ski mask with Whirley’s DNA and gunshot residue on it.

The jury found Whirley guilty, and the trial court sentenced him to life in prison for murder with 15-year sentences for the other crimes, all sentences to run concurrently.

Whirley appealed.

In a decision authored by Judge Anthony Rex Gabbert, the court reversed, finding it error that Whirley was precluded from presenting evidence that his twin brother was the shooter.

“Whirley presented evidence that Brother had possession of a gun that was arguably the same gun used in the shooting at issue in the current case, that Brother possessed a bag that was arguably the same bag that the murder weapon in the current case was found in, that Brother had clothes consistent with the clothes the shooter in the current case wore, that the same type of ammunition used in the current shooting was used in an unrelated shooting Brother pleaded guilty to; that Brother was in the area when and where the current shooting occurred, and that Brother was in Whirley’s house when police found the murder weapon there,” the court said.

These things all occurred close in time to the shooting at issue.

“This evidence establishes a clear link between Brother and key evidence from the shooting in the current case,” the court wrote. “The trial court abused its discretion in excluding evidence that Brother was an alternative perpetrator. The exclusion of this evidence was prejudicial.”

The court also addressed Whirley’s contention that the trial court abused its discretion in denying his motion to dismiss the criminal cause of action and remand the cause for a new certification hearing in juvenile court, which offered potentially broader relief than being granted a new trial in the circuit court.

However, the court was faced with an insufficient record, lacking the record from the juvenile proceedings or a record of what occurred during the certification hearing.

“This is significant because Whirley has to demonstrate that, had Certification Counsel been effective, Whirley would not have been certified to be prosecuted as an adult,” the court wrote. “We cannot make this determination without the full record of the certification hearing.”

Having found the alternative perpetrator argument dispositive, the court declined to address Whirley’s other arguments on appeal, reversing and remanding for further proceedings.

St. Louis attorney Jeffrey C. Esparza of the Public Defender Office, who represented Whirley, said he was pleased for his client, but expects the state to appeal the decision to the Missouri Supreme Court.

“We are talking about someone who was 16 years old when he was alleged to have committed these crimes who was sentenced to life in prison,” he said. “The Court of Appeals did the right thing here — the consequences are so dire that we have to make sure that we get it right.”

Gregory L. Barnes of the Office of the Attorney General represented the governor. The AG’s Office did not respond to a request for comment.

The case is State v. Whirley, WD85439.