Winkler v. State, Appellate Case No. 2014-000904

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJUSTICE FEW
Decision Date23 November 2016
PartiesLouis Michael Winkler, Jr., Respondent, v. State of South Carolina, Petitioner.
Docket NumberAppellate Case No. 2014-000904,Opinion No. 27685

Louis Michael Winkler, Jr., Respondent,
v.
State of South Carolina, Petitioner.

Appellate Case No. 2014-000904
Opinion No. 27685

STATE OF SOUTH CAROLINA In The Supreme Court

Heard April 13, 2016
November 23, 2016


ON WRIT OF CERTIORARI

Appeal From Horry County
James E. Lockemy, Trial Court Judge Benjamin H. Culbertson, Post-Conviction Relief Judge

REVERSED AND REMANDED

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General J. Anthony Mabry and Assistant Attorney General Alphonso Simon, Jr., all of Columbia, for Petitioner.

Emily C. Paavola, of Justice 360, of Columbia, and John R. Mills, of San Francisco, California, for Respondent.

JUSTICE FEW: This is a post-conviction relief (PCR) action arising out of Louis Michael Winkler, Jr.'s murder conviction and death sentence. We reverse the PCR court's ruling that trial counsel was ineffective in the sentencing phase of

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Winkler's trial for not objecting when the trial court did not answer the jury's questions about the consequences of a failure to reach a unanimous verdict. We also reverse the PCR court's denial of Winkler's pretrial motions in the PCR action in which he requested additional time to obtain and analyze evidence related to his alleged brain damage. Because the denial of additional time deprived Winkler of the opportunity to adequately develop his PCR claim that trial counsel was ineffective for failing to investigate brain damage, we vacate the PCR court's ruling denying that claim. We remand to the PCR court for further proceedings.

I. Procedural History

On the evening of the murder, Winkler kicked in the door to his estranged wife's home, knocked her son to the ground, and shot her in the face, killing her instantly. In addition to murder, Winkler was convicted of first-degree burglary and assault and battery of a high and aggravated nature. We described the specific facts of the crimes in our opinion affirming the convictions and death sentence on direct appeal. State v. Winkler, 388 S.C. 574, 579-82, 698 S.E.2d 596, 599-600 (2010), cert. denied, 563 U.S. 963 (2011).

After Winkler filed an application for PCR, the PCR court entered a scheduling order that it later amended to set a specific trial date. Winkler twice moved to amend the scheduling order so PCR counsel could have more time to obtain and analyze MRI and PET scans of his brain to investigate the possibility of brain damage. On the first motion, the PCR court extended the deadline for filing an amended application, but refused to extend any other deadlines, including the trial date. The PCR court denied the second motion.

At the close of Winkler's presentation of evidence at the PCR trial, the court granted the State a directed verdict on Winkler's claim that his trial counsel—Ralph Wilson and Paul Rathbun—were ineffective in failing to investigate and present evidence of Winkler's brain damage. In its final order, the court found Winkler "did not present any evidence that he suffered from neurological and cognitive impairments or dysfunction."

However, the court granted Winkler PCR on the ground that trial counsel were ineffective in the sentencing phase of the criminal trial when they did not object to the trial court's refusal to answer the jury's questions as to what would happen if the jury could not reach a unanimous verdict on Winkler's sentence. Instead of ordering a new sentencing proceeding, the PCR court "sentenced" Winkler to life in prison.

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In the sentencing phase, after deliberating for more than six and a half hours, the jury sent a note to the trial court asking, "Could you please explain what happens if we're not able to reach a unanimous decision?" The trial court, the State, and Winkler's trial counsel agreed the note was not a communication the jury was deadlocked. The trial court sent a written response to the jury's note stating, "I cannot answer the question the way you phrased it. Please let me know if you have any other questions." Trial counsel did not object.

After the jury deliberated for approximately two more hours, the trial court sent another written note to the jury asking, "do you have any questions or messages for the court?" The jury replied "[W]hat [does] the law state when a jury does not reach any unanimous decision at this stage of the trial?" The trial court then sent a note to the jury stating, "I cannot answer hypothetical questions. Do you have any specific questions to ask or comments that you would like to make about your jury?" Trial counsel did not object.

Sometime later, the jury sent a note indicating it was having difficulty reaching a verdict. The trial court then decided to give the jury a version of an Allen1 charge. At 12:26 a.m., the trial court gave the jury a modified Allen charge. In the charge, it informed the jury two times "the decision of the jury must be unanimous." After giving the charge, the trial court allowed the jury to choose whether to continue deliberating that night or come back the next day. The jury chose to return the next morning.

The following morning, before the jury resumed deliberations, the trial court told the jury to let it know if the jury needed to re-hear the Allen charge. One juror requested to re-hear the charge. Wilson initially objected, arguing it was inappropriate to give the charge again. After a discussion with the solicitor and the trial court, however, Wilson withdrew his objection. The trial court then re-read the modified Allen charge. Less than an hour later, the jury returned a verdict recommending the death penalty.

After the PCR court granted Winkler PCR, the State and Winkler each filed a petition for a writ of certiorari. We granted certiorari on three questions: (1) whether the PCR court erred "in finding trial counsel were ineffective in failing to object when the trial judge declined to answer the jury's questions regarding the

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consequences of a failure to reach a unanimous verdict in a capital murder sentencing proceeding in light of the trial judge's instruction to the jury that a recommendation of either death or life imprisonment must be unanimous;" (2) whether the PCR court "abuse[d its] discretion in denying [Winkler's] motion to alter the PCR scheduling order and therefore err[ed] in finding [Winkler] failed to carry his burden of proving trial counsel were ineffective in failing to investigate mitigating evidence of brain damage;" and (3) whether "the PCR court err[ed] in failing to remand for a new sentencing proceeding." We denied certiorari on all other issues, including the State's argument the PCR court erred in finding trial counsel was ineffective for not objecting to the Allen charge.

II. Allen Charge

Before we reach the merits of the questions as to which we granted the writ of certiorari, we address Winkler's argument we should dismiss the writ because of an issue as to which we denied certiorari. Winkler argues the PCR court granted relief on the independent basis that trial counsel was ineffective for not objecting to an unconstitutionally coercive Allen charge and that ruling renders his PCR final, regardless of the outcome of this appeal. See Dawson v. State, 352 S.C. 15, 20, 572 S.E.2d 445, 447 (2002) (stating an Allen charge cannot be unconstitutionally coercive, "but must instead be even-handed, directing both the majority and the minority to consider the other's views"). Thus, Winkler argues, we do not need to consider the question of whether trial counsel was ineffective for not objecting to the trial court's decision not to answer the jury's questions.

The PCR court's final order is confusing on this point. The issue is further confused by the fact the State petitioned for certiorari claiming "the PCR court erred in finding trial counsel was ineffective for not objecting to the Allen charge." However, we find the PCR court did not rule trial counsel was ineffective for not objecting to the Allen charge. Rather, the PCR court granted Winkler relief based only on trial counsel's decision not to object to the trial court not answering the jury's questions regarding a failure to reach a unanimous verdict. In doing so, the PCR court relied in part on its conclusion that the modified Allen charge contained an incorrect statement of law because the charge stated the decision of the jury must be unanimous. Because the PCR court did not grant Winkler relief on the independent ground that trial counsel was ineffective in not objecting to the modified Allen charge, we deny Winkler's request that we dismiss the writ of certiorari, and we proceed to address the merits of the questions on which we granted certiorari.

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III. The Failure to Reach a Verdict Issue

We consider claims for ineffective assistance of counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To obtain PCR under the Strickland test, the applicant must show "(1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's error, there is a reasonable probability that the outcome of the proceeding would have been different." Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. E. 2d at 693).

Winkler contends his counsel's performance fell below an objective standard of reasonableness because they should have objected to the trial court's decision not to answer the jury's questions. Winkler bases his argument initially on South Carolina Code subsection 16-3-20(C) (2015), which provides,

If members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant found guilty of murder, the trial judge shall dismiss such jury and shall sentence the defendant to life imprisonment as provided in subsection (A).

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