The State v. Winkler
| Decision Date | 16 August 2010 |
| Docket Number | No. 26857.,26857. |
| Parties | The STATE, Respondent,v.Louis Michael WINKLER, Jr., Appellant. |
| Court | South Carolina Supreme Court |
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Chief Appellate Defender Robert M. Dudek and Appellate Defender Elizabeth A. Franklin-Best, both of Columbia, for Appellant.
Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, and Assistant Attorney General Alphonso Simon, Jr., all of Columbia, and Solicitor J. Gregory Hembree, of Conway, for Respondent.
In this capital murder case, Louis Michael Winkler, Jr. (Appellant) appeals his sentence of death.1
Appellant kidnapped and sexually assaulted Rebekah Grainger Winkler (Victim) on October 10, 2005, five months before Victim was murdered.2 That evening, Appellant's car was spotted behind the Seacoast Medical Center (Seacoast). Victim's car was found off the road in some trees and appeared to have been wrecked. There was blood on both of Victim's car seats, around the center console, and on the interior panel of the passenger's side door. The Horry County Police Department activated its dog team in an attempt to locate two missing persons. Victim was later found next to Stephen's Crossroads, which is where the magistrate's complex and library is located.
Phyllis Richardson (Richardson) arrived at the parking lot at Stephen's Crossroads around 7:30 a.m. on October 11, 2005, and saw a woman walking in the parking lot being followed by a man. Richardson noted the woman looked distraught and was acting confused, and that the man's hands were in the air as if he were raging and irritated. Shortly after Richardson entered her office, she saw the woman from the parking lot on the phone in her office building. The woman's hair was matted and tangled with some bald spots. Richardson later learned the woman making the call was Victim. Curtis Thompson was the first officer to arrive at the building, and noticed some of Victim's hair looked like it had been ripped out, and she had black eyes, abrasions, and other scratches.
Victim was transported to Seacoast by EMS where Lisa Gore (Gore), a nurse at Seacoast, tended to Victim and noted her injuries to the left eye, some swelling in the jaw area, bruising around the neck, a fractured nose, an upper lip injury, redness under her right eye, corneal abrasions, multiple bruises and contusions, a bite mark to the face, and a large amount of hair removed from her head. A sexual assault kit was collected from Victim. The DNA found in the rectal and vaginal swabs from the sexual assault kit matched Appellant's DNA.
On October 11, 2005, Appellant was arrested for criminal sexual conduct, first degree, assault and battery with intent to kill, and kidnapping. Bond was initially denied; however, at a second bond hearing, Appellant's bond was set at $150,000 and he was required to wear an electronic monitor while out on bond. At a third bond hearing, Appellant's bond was amended to allow him to remove his electronic monitor for two hours so he could seek employment between the hours of 4 p.m. and 6 p.m. Appellant was out of jail on bond on the day Victim was murdered.
At around 5:30 p.m. March 6, 2006, Appellant kicked in the door to Victim's condominium. Appellant knocked Victim's son, Jonathan G. (Jonathan), onto the ground and then shot Victim once in the face at point blank range. According to the forensic pathologist who conducted Victim's autopsy, death occurred instantly. Appellant then walked over and pointed the gun at Jonathan. Shortly thereafter, Appellant left the condominium.
Appellant hid in the woods for two weeks. When police apprehended Appellant,3 they recovered a Jennings .380 pistol from his right front pants pocket. Five live rounds were found in the pistol, but there was not a live round in the port. During a full search of Appellant, police recovered eighteen rounds of .380 ammunition, a guard lock blade knife, and a wallet. In the wallet, there was a newspaper clipping about the shooting and murder.
Appellant was tried and found guilty of murder, first-degree burglary, and assault and battery of a high and aggravated nature. At trial, the State sought to establish two statutory aggravating circumstances: (1) the murder was committed during the commission of a burglary; and (2) the murder was of a witness or potential witness committed at any time during the criminal process for the purpose of impeding or deterring prosecution of any crime. S.C.Code Ann. § 16-3-20(C)(a)(1)(c), (C)(a)(11) (2003 & Supp.2009). The jury recommended that Appellant be sentenced to death.
During the guilt phase of Appellant's trial, Mary Elizabeth C. (Mary), Jonathan's friend, testified that on the evening of the murder she was on the phone with Jonathan when she heard a loud pop noise, and a voice that was not Jonathan's say, Mary then heard a hit and the phone went to static. Andrew Cooper (Cooper), a former crime scene technician for the Horry County Police Department, testified that it appeared there had been a forced entry because the door jamb, door frame, lock mechanism, and other parts of the door had been broken. Cooper also testified that a reddish colored liquid was collected from the kitchen countertop. Kimberly Hahn, a former State Law Enforcement Division (SLED) scientist, testified that she compared the blood swabs recovered from the counter of Victim's residence to Appellant's blood standard, and the blood from the counter matched Appellant's blood profile. Cooper testified that a projectile was recovered from the baseboard of the wall behind Victim. A firearms and toolmark examiner for SLED testified that the Jennings pistol found on Appellant when apprehended fired the bullet recovered from Victim's baseboard.
During the sentencing phase of Appellant's trial, Jill Shelley (Shelley), Victim's older daughter, testified that in September 2005, six months before the murder, she could not contact Victim on the phone so she drove to Victim's home. When she arrived at Victim's residence she saw that Victim was beat up and her arms were covered in bruises. Appellant later arrived, started kicking the door, and was screaming for Victim to let him in. Shelley threatened to call the police. Appellant responded that Victim knew what would happen if they called the police. Shelley testified that Victim moved out of Appellant's home as a result of that confrontation. One piece of evidence presented by the State was a letter sent by Appellant to Shelley while Appellant was incarcerated. In the letter Appellant asserted that had Shelley not gotten involved, Victim would still be alive.
I. Did the trial court err in admitting an audio tape recording as a prior consistent statement under Rule 801(d)(1)(B), SCRE?
II. Did the trial court err in allowing the jury to review the transcript of the 911 tape?
State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (citations omitted). “This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence.” Id. at 6, 545 S.E.2d at 829. “The admission or exclusion of evidence is left to the sound discretion of the trial judge, whose decision will not be reversed on appeal absent an abuse of discretion.” State v. Saltz, 346 S.C. 114, 121, 551 S.E.2d 240, 244 (2001). “An abuse of discretion occurs when the conclusions of the trial court either lack evidentiary support or are controlled by an error of law.” State v. Pittman, 373 S.C. 527, 577, 647 S.E.2d 144, 170 (2007) (citation omitted).
Appellant argues the trial court erred in admitting as a prior consistent statement under Rule 801(d)(1)(B), SCRE an audio tape recording of Jonathan's interview with police on the evening of the murder. We disagree.
Prior consistent statements are not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose.
Rule 801(d)(1)(B), SCRE. In order for a prior consistent statement to be admissible pursuant to Rule 801(d)(1)(B), the following elements must be present:
(1) the declarant must testify and be subject to cross-examination, (2) the opposing party must have explicitly or implicitly accused the declarant of recently fabricating the statement or of acting under an improper influence or motive, (3) the statement must be consistent with the declarant's testimony, and (4) the statement must have been made prior to the alleged fabrication, or prior to the existence of the alleged improper influence or motive.
Saltz, 346 S.C. at 121-22, 551 S.E.2d at 244.
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