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Winkler v. State

Supreme Court of South Carolina

November 23, 2016

Louis Michael Winkler, Jr., Respondent,
v.
State of South Carolina, Petitioner. Appellate Case No. 2014-000904

          Heard April 13, 2016

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

          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.

          ON WRIT OF CERTIORARI

          FEW, JUSTICE

         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 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.

          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 Allen[1] 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 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.

          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).

         Winkler argues that when the jury asked what would happen if it did not reach a unanimous sentencing verdict, the trial court was required under subsection 16-3-20(C), due process, [2] and the Eighth Amendment[3] to inform the jury the defendant would be sentenced to life in prison, which "means until the death of the defendant without the possibility of parole." S.C. Code Ann. § 16-3-20(A) (2015). When the trial court refused to inform the jury of this, Winkler argues, his trial counsel should have objected.

          The PCR court agreed. The court concluded "the jury is entitled to an instruction that the defendant's sentence becomes a matter of law to be imposed by the court if they cannot reach a unanimous verdict." Based on that conclusion, the PCR court found trial counsel was unreasonable in not objecting to the trial court's refusal to answer the jury's questions, and thus counsel's performance was deficient and Winkler satisfied the first prong of Strickland. We disagree.

         At the PCR trial, Winkler's PCR counsel gave trial counsel Ralph Wilson a chance to explain why he didn't object. Wilson testified "my understanding is . . . if a jury asks a question about what happens if they're deadlocked then the Judge can't then tell them . . . that this defendant is going to get a life sentence." As we will explain, trial counsel's understanding was consistent with applicable precedent. In fact, we can find no South Carolina or federal precedent on which Winkler's trial counsel could have relied to support making an objection. The PCR court's conclusion, on the other hand, had no support in South Carolina or federal precedent. Thus, we find the PCR court's conclusion was an error of law, and the error controlled its finding as to trial counsel's performance. See Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) (stating we "will reverse the decision of the PCR court when it is controlled by an error of law"); Edwards v. State, 392 S.C. 449, 455, 710 S.E.2d 60, 64 (2011) ("The appellate court will reverse the PCR court only where there is either no probative evidence to support the decision or the decision was controlled by an error of law."). Because no applicable precedent supported making an objection, we find trial counsel's decision not to object was reasonable. See Harden v. State, 360 S.C. 405, 408, 602 S.E.2d 48, 49 (2004) (stating trial counsel was not deficient in not objecting when there was "no statutory law or judicial precedent in this State" on which to base an objection).

         In State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981), [4] the appellant argued "the trial judge erred by failing to instruct the jury initially that if they failed to agree to the verdict, then the court would be required to sentence him to life imprisonment." 277 S.C. at 124, 283 S.E.2d at 587. We found no error, and held-referring to subsection 16-3-20(C)[5]-"[t]hat portion of the statute addressing the legal effect given to the existence of an unalterably divided jury is addressed to the trial judge only and need not be divulged to the jury." Id.

         In State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982), we again addressed the question of whether the trial court "erred in denying [the defendant's] request to instruct the jury of the actual effect of failure to reach a unanimous agreement as to punishment." 278 S.C. at 584, 300 S.E.2d at 70. The appellant in Copeland also claimed-like here-the trial court erred "in instructing the jury that unanimity is required before a life sentence can be imposed." Id. Quoting Adams, we affirmed the trial court's refusal to charge the substance of subsection 16-3-20(C) and its instruction that the "verdict or recommendation" must be unanimous. Id. We held, "The trial judge correctly stated the applicable law." Id.

         Trial counsel's understanding was also consistent with federal precedent. In Evans v. Thompson, 881 F.2d 117 (4th Cir. 1989), the Fourth Circuit reviewed the denial of a habeas corpus petition that arose out of the petitioner's death sentence in Virginia. 881 F.2d at 119. Similar to the situation here, the jury "inquir[ed] of whether a life sentence must be unanimous, " and the petitioner argued "the trial judge improperly failed to instruct the jury that under Virginia law a split decision by a capital sentencing jury automatically becomes life." 881 F.2d at 123. Also similar to this case, the petitioner argued "he was denied his due process rights because the trial judge improperly instructed the jury that a sentence of life imprisonment could be imposed only by a unanimous verdict." Id. Alleging a due process violation, the petitioner made the same argument upon which Winkler now claims his trial counsel should have objected, and the Fourth Circuit found the argument "without merit." Id. The court held, "No obligation exists for the trial judge to inform the jury of the ultimate result should they fail to reach a verdict." Id. (citing Barfield v. Harris, 540 F.Supp. 451, 472 (E.D. N.C. 1982), aff'd, 719 F.2d 58 (4th Cir. 1983)).

         In Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the Supreme Court of the United States addressed the question "whether petitioner was entitled to an instruction as to the effect of jury deadlock" in the penalty phase of his federal capital trial. 527 U.S. at 375, 119 S.Ct. at 2096, 144 L.Ed.2d at 378. The Supreme Court held "the Eighth Amendment does not require that the jurors be instructed as to the consequences of their failure to agree." 527 U.S. at 381, 119 S.Ct. at 2098, 144 L.Ed.2d at 382. The Court also found applicable federal statutes do not require the instruction, and declined to exercise its "supervisory powers" to require the instruction. 527 U.S. at 381, 383, 119 S.Ct. at 2098, 2099, 144 L.Ed.2d at 382, 383.

         The first prong of the Strickland test requires a court to assess counsel's performance against an objective standard of reasonableness. Edwards, 392 S.C. at 456, 710 S.E.2d at 64. One of the key circumstances a court must consider in its examination of counsel's decision not to make a particular objection is whether there was any law to support the objection. In Harden, the issue before this Court was whether plea counsel's performance was deficient when he did not object on the grounds of double jeopardy to the petitioner being convicted of drug trafficking based on conspiracy and drug distribution. 360 S.C. at 408, 602 S.E.2d at 49. We upheld counsel's performance because we found "no statutory law or judicial precedent in this State . . . holds a conviction for both conspiracy and the substantive offense relating to the conspiracy . . . constitutes double jeopardy." Id. Because the law did not support the double jeopardy objection, we found counsel acted reasonably in not making it. Id. We stated, "An attorney is not required to anticipate potential changes in the law which are not in existence at the time of the conviction." Id.; see also Thornes v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993) (stating, "This Court has never required an attorney to anticipate or discover changes in the law, " and citing cases to illustrate the point).

         The situation here is comparable to Harden. At the time of Winkler's trial, South Carolina law applicable to whether the trial court should charge the jury the consequences of the jury's failure to reach a verdict was limited to subsection 16-3-20(C) as interpreted in Adams and Copeland. Neither opinion provides any support for trial counsel making an objection, nor for the PCR court's finding that the jury is "entitled" to the charge. In fact, we read Adams and Copeland to suggest the court should not have answered the jury's question. We stated in Adams that subsection 16-3-20(C) "is addressed to the trial judge only and need not be divulged to the jury, " 277 S.C. at 124, 283 S.E.2d at 587, and we quoted that statement in Copeland, 278 S.C. at 584, 300 S.E.2d at 70-71.

         Federal precedent also provided no support for an objection. In Evans-a situation almost identical to this one-the Fourth Circuit found "no obligation" to inform the jury of the consequences of not reaching a verdict, 881 F.2d at 123, and Jones leaves no argument that federal law would have supported an objection, 527 U.S. at 381, 383, 119 S.Ct. at 2098, 2099, 144 L.Ed.2d at 382, 383. All of those cases-Adams, Copeland, Evans, and Jones-were decided before Winkler's 2008 trial. The law, therefore, did not support trial counsel making an objection to the trial court's decision not to answer the jury's question.

         Winkler relies heavily on the fact that Adams, Copeland, and Jones dealt only with the trial court's initial jury charge, but in this case the jury specifically asked what would happen if it could not reach a verdict. Winkler argues that when a jury "makes explicit" a question it has about the law, the trial court must answer the question "even where the jury is initially given proper instructions." We agree this case is different because in those cases the jury did not ask the question this jury asked. For three reasons, however, that difference does not change our decision. First, while this case might be distinguishable from Adams, Copeland, and Jones on the basis Winkler argues, it cannot be distinguished from Evans-in which the jury also "inquir[ed] of whether a life sentence must be unanimous." 881 F.2d at 123. We do not know the precise question asked by the jury in Evans. However, the argument the petitioner made as to how the question should have been answered is the same argument Winkler makes here. Id. In that almost identical factual scenario, the court held, "No obligation exists for the trial judge to inform the jury of the ultimate result should they fail to reach a verdict." Id.

         Second, the significance of the difference between this case and Adams, Copeland, and Jones is limited by the fact that this is a PCR case. The issue in this PCR is not whether a trial court must answer the jury's question when trial counsel specifically requests it, but whether trial counsel should have objected to the trial court not giving an answer. Specifically, the issue before us is whether Winkler's trial counsel's decision not to make an objection was reasonable under the first prong of Strickland. Adams and Copeland are important to the resolution of this issue not because they are controlling-they are not-but because they were the only South Carolina precedent available to trial counsel when counsel made the decision not to object, and neither case provided any support for an objection. Similarly, Jones is not squarely on point with this case, but it does not support making an objection to the trial court's refusal to answer this jury's questions.

         Third, Winkler's argument that a trial court must accurately explain a point of law when a jury asks a specific question about it depends on whether the answer to the question is applicable to the jury's deliberations. Even if a jury asks a specific question about a point of law, when the point is not applicable to the jury's deliberations, the trial court should not answer the question. See generally State v. Weaver, 265 S.C. 130, 137, 217 S.E.2d 31, 34 (1975) ("There was no duty of the trial judge to instruct the jury as requested by the appellant because such charge was not applicable to any issue in the case."). Therefore, the mere fact the jury asked the specific question did not require the trial court to answer it. Rather, whether the trial court should have answered the question depended on whether the point of law about which the jury asked was applicable to the jury's deliberations.

         Winkler argues that Simmons v. South Carolina, 512 U.S. 154');">512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), demonstrates the answer to the jury's questions was applicable to the jury's deliberations. In Simmons, the Supreme Court of the United States held the petitioner's due process rights were violated when the State made his future dangerousness a factual issue and the trial court refused to answer the jury's question as to petitioner's parole eligibility. 512 U.S. at 156, 114 S.Ct. at 2190, 129 L.Ed.2d at 138; see also State v. Starnes, 340 S.C. 312, 326, 531 S.E.2d 907, 915 (2000) ("Due process is violated when the State 'raises[s] the specter of [the defendant's] future dangerousness generally, but then thwart[s] all efforts by [the defendant] to demonstrate that . . . he never would be released on parole and thus . . . would not pose a future danger to society.'" (alteration in original) (quoting Simmons, 512 U.S. at 165, 114 S.Ct. at 2194, 129 L.Ed.2d at 143)). Due process required the jury's question to be answered in Simmons because the jury needed to know the law related to petitioner's parole eligibility to properly deliberate over the factual question of future dangerousness. See, e.g., 512 U.S. at 165, 114 S.Ct. at 2194-95, 129 L.Ed.2d ...


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