Jason Horne, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Jason Horne appeals his convictions for murder and unlawful possession of a firearm by a serious violent felon. He argues that his right not to be placed twice in jeopardy was violated when the trial court declared a mistrial in his first trial, and that the court further erred by giving a jury instruction on voluntary intoxication. Because the record shows Horne consented to the mistrial and the jury instruction was appropriate, we affirm.

Facts and Procedural History

[2] Horne and Jennifer Gorecki were in a romantic relationship and lived together with their nine-year-old son, D.H. On the evening of March 14, 2024, a neighbor observed Horne summon D.H., who was playing outside. When the boy came to him, Horne told him Gorecki was dead and D.H. needed to get his paternal grandmother, Pamela Dorsey, who lived nearby. The boy retrieved Dorsey and told her that Gorecki had shot herself. When they got to Horne's house, Horne told her the same.

[3] D.H. called 911 and reported that his mother might be dead. During the call, Dorsey said Gorecki had “shot herself[,]” which led first responders to approach the incident as a potential suicide. Transcript Vol. 2 at 38. When the first responders arrived, they found Gorecki unresponsive on the bedroom floor and Dorsey performing CPR on her. She'd suffered a gunshot wound to the chest, and there was a black handgun on the bed. Gorecki died after she was transported to the hospital.

[4] Later, the forensic pathologist who performed Gorecki's autopsy observed that the lethal gunshot wound didn't have the typical indications of a self-inflicted or contact gunshot wound. Gorecki's DNA was not identified on the handgun found at the scene, but Horne's was discovered on its grip and slide. Gorecki's DNA was found on Horne's pants where blood was present.

[5] The police located Horne at Dorsey's residence shortly after the shooting. He appeared to be intoxicated and said he didn't know what had happened or why the police were there. State's Exhibit 5 at 8:00-8:21; Tr. Vol. 2 at 67 (responding officer testifying Horne “appeared to be intoxicated”). At the start of a recorded interview later that evening, see generally State's Exhibit 29, Horne told a detective that he had been drinking alcohol at home and didn't know what had happened. Tr. Vol. 4 at 108. When the detective informed him that Gorecki had been shot, Horne acted surprised and denied any knowledge of or involvement in the shooting. Id. at 110. Over the course of the one-hour interview, Horne acknowledged they kept a gun in the house, admitted he and Gorecki argued regularly and were arguing before the shooting, and repeatedly claimed he had been drunk and had no idea what had happened to her. See id. at 108-47.

[6] The State charged Horne with murder, a felony,¹ and unlawful possession of a firearm by a serous violent felon, a Level 4 felony.² It also sought a sentence enhancement on grounds that Horne had committed the murder with a firearm. Horne's first jury trial began on April 7, 2025.

[7] After the jury was empaneled and the State was presenting its case-in-chief, the defense alleged various discovery violations. This spurred a multi-day, multi-issue hearing outside the presence of the jury regarding the State's compliance with discovery. At one point in the hearing, defense counsel “request[ed] a continuance to ․ determine whether [the defense was] capable to continue ․” Supplemental Tr. Vol. 3 at 39. When Horne's attorney could not produce an anticipated timeframe for a continuance, the trial court indicated it might need “to discharge [the jury] and declare a mistrial if [the defense] need[ed] ․ an extended period of time[.]” Id. at 40. Defense counsel responded, “No, no, no, ․ I don't want a mistrial at this point[.]” Id. Around this time in the proceedings, defense counsel took testimony from Horne. He stated he did not want a mistrial or give defense counsel authority to seek one. Id. at 45-47. Later, when the issues still hadn't resolved, the trial court said it was “going to unilaterally declare a mistrial.” Id. at 66. But after defense counsel objected, the court allowed the parties to continue debating the issues.

[8] At another point in the discovery hearing, the defense requested the court stay the proceedings and certify the discovery issues for interlocutory appeal.³ The court denied their request. After it did, the defense strategized during a recess. When the hearing resumed, Horne testified and acknowledged that defense counsel was “going to make some motions and ․ that [counsel was] making those after a lengthy conversation with [Horne] and ․ [counsel was] representing [Horne's] interest[.]” Id. at 155-56. Then, defense counsel asked the court to “stay the proceeding for a period of two weeks, discharge the jury, freeze where we are.” Id. at 156. In response, the court stated:

Let me make sure I'm clear on what you're asking.

[DEFENSE COUNSEL]: Yes.

THE COURT: Discharge the jury as in thank you[,] go on your way[,] we're picking a new jury?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Okay.

Id. Defense counsel explained that when he used the word “freeze[,]” he meant that the State should not be permitted to build a new case—for example, by amending the witness or exhibit list without good cause—during the stay. Id. The court responded that it was struggling to craft such an order since the defense had agreed to discharge the jury. Defense counsel suggested the court could “pol[l] the jury to see if they're available in two weeks[,]” but the court said it was not “comfortable keeping the jurors[,]” adding, “I understand the want and what you're indicating but I think my concern would be too great.” Id. at 159-60. The court explained it was worried about losing jurors to life conflicts given there was only one alternate juror remaining. The court reasoned that “from a functional standpoint ․ [it] ha[d] to declare a mistrial to get rid of the jurors ․” Id. at 162. Defense counsel responded that he “ha[d] no objection to discharging this jury as a part of that order.” Id. at 163. Ultimately, with input from the defense, the court “declare[d] a mistrial for the purposes of discharging this jury” and granted the defense's motion to continue, which included a “stay of amending the witness and exhibit list ․ without prior approval of the [c]ourt.” Id. Then, the court reiterated that it “ha[d] to functionally declare a mistrial to get a new jury[,]” and defense counsel replied, “Yes, sir.” Id. at 167.

[9] Horne's second jury trial was held in May 2025. After the presentation of evidence, the State requested a jury “instruction regarding voluntary intoxication not being a defense.” Tr. Vol. 4 at 188. Horne initially objected, but after a recess he acknowledged he “d[idn't] have a basis to object to it being given based on [his] research ․” Id. at 191. Accordingly, the court said it would give the instruction, noting that “there [was] at least some evidence regarding intoxication to where the jurors need[ed] to be informed of the law for their determination on whether or not Mr. Horne did something knowingly or intentionally[.]” Id. at 191-92. The court instructed the jury as follows:

Voluntary intoxication is not a defense to a charge of Murder. You ma[y] not take voluntary intoxication into consideration in determining whether the Defendant acted intentionally or knowingly as alleged in the information.

Appellant's Appendix Vol. 2 at 154.

[10] After deliberating, the jury found Horne guilty of murder and knowingly or intentionally possessing a firearm. Horne then admitted he was a serious violent felon and agreed to the firearm sentence enhancement. The trial court sentenced him to fifty-five years for murder, enhanced by five years for the firearm enhancement. It also sentenced him to a concurrent eight-year sentence for possessing a firearm as a serious violent felon. Horne appeals.

Discussion and Decision

1. Double Jeopardy

[11] Horne argues that his right not to be placed twice in jeopardy was violated when he was retried after the trial court “declared a mistrial without request from the parties ․” Appellant's Brief at 15. The Fifth Amendment's Double Jeopardy Clause provides that “[n]o person shall ․ be subject for the same offen[s]e to be twice put in jeopardy of life or limb[.]”⁴ U.S. Const. amend. V. In this context, we review the fact-sensitive considerations that went into the trial court's decision to grant a mistrial for an abuse of discretion, and we use de novo review in determining whether the defendant's subsequent retrial violated double jeopardy. Garnes v. State, 231 N.E.3d 239, 242 (Ind. Ct. App. 2024) (citing Brock v. State, 955 N.E.2d 195, 207 (Ind. 2011), cert. denied), trans. denied; United States v. Faulkner, 793 F.3d 752, 755 (7th Cir. 2015).

[12] “[J]eopardy ‘attache[s]’ when the first jury [is] impaneled and sworn,” which undisputedly occurred in this case. Brock, 955 N.E.2d at 199. A defendant has a constitutional right to have that initial tribunal complete his trial, but in some instances that right must “be subordinated to the public's interest in fair trials designed to end in just judgments.” Id. at 200 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949), reh'g denied); see also Ind. Code § 35-41-4-3 (outlining when a subsequent prosecution for the same offense is barred by statute). For example, if the defendant consented to a mistrial, then retrial is typically “permitted as a matter of course[.]”⁵ Brock, 955 N.E.2d at 200. A defendant may consent to a mistrial by “successfully request[ing] termination of the proceedings on grounds unrelated to guilt or innocence” or “by expressly agreeing to be tried again.” Id. He may also “tacitly or implicitly consent to be retried through certain conduct, including failing to raise a timely objection to a mistrial declaration.” Id. at 201. If the defendant did not consent to the mistrial, he may be retried only if the State shows the mistrial “was justified by a ‘manifest necessity.’ ” Id. at 200.

[13] Horne contends that he preserved the double jeopardy issue for appeal by sufficiently objecting, but his opening and reply briefs do not address the concept of consent and the State's arguments in that regard. Nevertheless, the record before us clearly demonstrates that Horne not only consented to a mistrial but failed to preserve the issue for review.

[14] Horne initially relayed his objection to a potential mistrial, but his position shifted during the protracted, mid-trial hearing. Ultimately, Horne suggested the trial court “discharge the jury” and “freeze” the parties’ positions for two weeks. Supp. Tr. Vol. 3 at 156. The court confirmed that Horne meant “[d]ischarge the jury as in thank you[,] go on your way[,] and we're picking a new jury[.]” Id. Although Horne then proposed polling the jurors to see if they'd be available in two weeks, he ultimately expressed that he had “no objection to discharging th[e] jury as a part of” the unique order he helped the court craft. Id. at 163. The circumstances here reflect a negotiated resolution and an express agreement between Horne and the court to declare a mistrial, which is a far cry from a hasty sua sponte mistrial declaration that presented no opportunity for the defendant to object. And likely because he expressly consented to a mistrial, Horne did not object to the final mistrial declaration or move to dismiss the charges against him before he was retried. See Sells v. State, 130 N.E.3d 1158, 1163 (Ind. Ct. App. 2019) (finding the defendant waived her double jeopardy claim for appellate review for similar reasons, among others), trans. denied. Therefore, Horne waived his double jeopardy claim, and it likewise fails on the merits because he expressly consented to the mistrial.⁶

2. Voluntary Intoxication Instruction

[15] Horne further argues the trial court erred in giving the voluntary intoxication instruction because “the evidence did not support giving the instruction.” Appellant's Br. at 23. He notes that the defense did not request that his conduct “be excused based upon his intoxication[,]” his trial “strategy was that [he] was not guilty because he did not commit the shooting[,]” and the testimony elicited by the State regarding his intoxication did not prove his intoxication factored into the shooting. Id. at 22-23. Horne's arguments fail.

[16] “We review a trial court's decision to give or refuse a jury instruction for an abuse of discretion.” Perry v. State, 267 N.E.3d 20, 37 (Ind. Ct. App. 2025), trans. denied. We look to whether (1) the instruction is a correct statement of the law, (2) there is record evidence to support giving the instruction, and (3) other instructions accounted for the substance of the disputed instruction. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). Jury instructions are intended “to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)), reh'g denied, cert. denied. Consequently, “[a]n improper instruction will merit reversal only if it ‘so affects the entire charge that the jury was misled as to the law in the case.’ ” Perry, 267 N.E.3d at 37 (quoting Thomas v. State, 61 N.E.3d 1198, 1201 (Ind. Ct. App. 2016), trans. denied).

[17] First, we observe that Horne retracted his objection to the voluntary intoxication instruction and therefore failed to preserve this issue for appeal. See Thomas, 61 N.E.3d at 1201 (finding waiver due to failure to object). And while he argues he was prejudiced by the erroneous instruction, he does not contend the alleged error rose to the level of fundamental error. See id. (reviewing waived instruction when fundamental error was raised on appeal).

[18] Waiver notwithstanding, a panel of this court squarely rejected the logic of Horne's arguments in Perry. There, this Court held that a defendant's chosen defense does not control the analysis of whether the evidence supported a voluntary intoxication instruction. Perry, 267 N.E.3d at 37-38. Instead, where the record contains evidence of voluntary intoxication, the instruction is properly given even if the defendant did not present such evidence or claim intoxication as a defense. Id. at 38; see also Phillips v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (finding sufficient evidence supporting a voluntary intoxication instruction where the evidence of intoxication, “[i]f believed, ․ could create a reasonable doubt in the minds of the jury about the requisite specific intent”), trans. denied. The Perry court also observed, as the trial court did in this case, that a voluntary intoxication instruction prevents jurors from improperly speculating about whether a defendant's intoxication implicated his ability to act with the requisite mens rea. 267 N.E.3d at 38. Accordingly, we conclude that the trial court did not abuse its discretion by giving the voluntary intoxication instruction.

Conclusion

[19] For the above reasons, we affirm Horne's convictions.

[20] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1(1).

2.   I.C. § 35-47-4-5(c).

3.   In his argument to certify the matter for interlocutory appeal, Horne made clear he was aware that “jeopardy ha[d] attached ․” Supp. Tr. Vol. 3 at 125.

4.   In Benton v. Maryland, the U.S. Supreme Court recognized that this clause applies to the states through the Fourteenth Amendment. 395 U.S. 784, 794-96 (1969).

5.   A defendant may find relief from his consent if he “can prove that the government intentionally goaded him ․ into consenting to the mistrial ‘to subvert the protections afforded by the Double Jeopardy Clause[,]’ ” but Horne makes no such argument on appeal. Brock, 955 N.E.2d at 200 (quoting Oregon v. Kennedy, 456 U.S. 667, 676 (1982)).

6.   In his reply brief, Horne argues that the record shows he “expressly oppos[ed] a mistrial but ․ negotiat[ed] the terms of the proceedings in the event that a mistrial was declared.” Appellant's Reply Br. at 10. Citing case law concerning a defendant's right to appellate recourse after he responds to evidence erroneously admitted over his objection, see Thomas v. Thomas, 577 N.E.2d 216, 218-19 (Ind. 1991), Horne claims “[i]t is well-settled that a defendant does not waive an issue by attempting to mitigate the effect of an error once it is clear he cannot prevent it.” Appellant's Reply Br. at 10-11. But Horne fails to explain or cite any authority showing this concept applies in the double jeopardy context generally, much less where the defendant actively changed his position and agreed to a mistrial.

DeBoer, Judge.

Mathias J., and Kenworthy, J., concur.