Winkler v. State

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Louis Michael Winkler, Jr., Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2014-000904

ON WRIT OF CERTIORARI

Appeal From Horry County

James E. Lockemy, Trial Court Judge

Benjamin H. Culbertson, Post-Conviction Relief Judge

Opinion No. 27685

Heard April 13, 2016 – Filed November 23, 2016

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
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 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

1
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
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 Amendment3 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.

2
See U.S. CONST. amend. XIV, § 1 ("No state shall . . . deprive any person of life
. . . without due process of law; . . . ."); S.C. CONST. art. I, § 3 ("nor shall any
person be deprived of life . . . without due process of law").
3
See U.S. CONST. amend. VIII ("nor cruel and unusual punishments inflicted");
Romano v. Oklahoma, 512 U.S. 1, 8-10, 114 S. Ct. 2004, 2010, 129 L. Ed. 2d 1,
10-11 (1994) (summarizing prior case law to recognize the Eighth Amendment
prevents misleading the jury regarding its role in the sentencing process).
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

4
Overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315
(1991).
5
The language of the applicable sentence in subsection 16-3-20(C) has been
amended slightly since we decided Adams. See Act No. 83, 1995 S.C. Acts 560-61
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

(enacting the current language for the sentence). The sentence as it read in 1981 is
quoted in Adams. 277 S.C. at 124, 283 S.E.2d at 587.
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, 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 at 144 (explaining that
without an answer to the jury's question, "[t]he jury was left to speculate about
petitioner's parole eligibility when evaluating petitioner's future dangerousness").
In Simmons, therefore, the answer to the jury's question was directly applicable to
the jury's deliberations.

Here, on the other hand, we see little possibility that answering the jury's question
could assist the jury in deliberations. A juror's knowledge that if the jury does not
reach a verdict the court will impose a sentence of life in prison will not help the
juror understand the evidence, or assist the jury in reaching a verdict. Rather, we
are concerned that informing the jury what the sentence will be if they do not reach
a verdict creates a risk that some juror's attention may be diverted away from the
duty to deliberate, and perhaps even alert a juror that he or she can control the
sentence by refusing to deliberate.

The Supreme Court of the United States addressed this concern in Jones. The
petitioner requested the jury be charged, "In the event . . . the jury is unable to
agree on a unanimous decision as to the sentence to be imposed, you should so
advise me and I will impose a sentence of life imprisonment without possibility of
release." 527 U.S. at 379, 119 S. Ct. at 2097-98, 144 L. Ed. 2d at 381. Addressing
the Eighth Amendment argument that the jury could be "misled regarding its role
in the sentencing process" by the trial court's refusal to give the instruction, 527
U.S. at 381-82, 119 S. Ct. at 2099, 144 L. Ed. 2d at 382 (quoting Romano, 512
U.S. at 9, 114 S. Ct. at 2010, 129 L. Ed. 2d at 11), the Court explained:

The truth of the matter is that the proposed instruction
has no bearing on the jury's role in the sentencing
process. Rather, it speaks to what happens in the event
that the jury is unable to fulfill its role—when
deliberations break down and the jury is unable to
produce a unanimous sentence recommendation. . . . We
have never suggested . . . that the Eighth Amendment
requires a jury be instructed as to the consequences of a
breakdown in the deliberative process. On the contrary,
we have long been of the view that "[t]he very object of
the jury system is to secure unanimity by a comparison of
views, and by arguments among the jurors themselves."
We further have recognized that in a capital sentencing
proceeding, the Government has "a strong interest in
having the jury express the conscience of the community
on the ultimate question of life or death." We are of the
view that a charge to the jury of the sort proposed by
petitioner might well have the effect of undermining this
strong governmental interest.

527 U.S. at 382, 119 S. Ct. at 2099, 144 L. Ed. 2d at 382-83 (footnotes omitted)
(first quoting Allen, 164 U.S. at 501, 17 S. Ct. at 157, 41 L. Ed. at 531; and then
quoting Lowenfield v. Phelps, 484 U.S. 231, 238, 108 S. Ct. 546, 551, 98 L. Ed. 2d
568, 578 (1988)); see also State v. McCarver, 462 S.E.2d 25, 42 (N.C. 1995)
(stating "to inform the jury that its failure to agree on determinative issues will
result in a sentence of life imprisonment would be an open invitation to the jury—
or a single juror—to avoid its responsibility to fully deliberate and to force a
recommendation of life by the simple expedient of disagreeing").

Winkler's reliance on Simmons is misplaced because in that case the answer to the
jury's question was necessary to enable the jury to understand and fully deliberate
one of the key factual issues in the case. In this case, the consequence of not
reaching a verdict was not applicable to the jury's deliberations, and informing the
jury of that consequence could have created a risk of undermining the
deliberations.
Winkler also argues the decision not to object was unreasonable in light of the trial
court's instruction on two occasions during the modified Allen charge "the decision
of the jury must be unanimous."6 The trial court's instruction was correct in this
respect, however, because a verdict must, under law, be unanimous.7 See S.C.
CONST. art. V, § 22 ("All jurors in any trial court must agree to a verdict in order to
render the same."); see also Copeland, 278 S.C. at 584, 300 S.E.2d at 70 (holding
the trial court "correctly stated the applicable law" when it charged the jury in the
sentencing phase of a capital trial "your verdict or recommendation . . . must be
unanimous on each count, that is, your verdict or recommendation must be the
verdict or recommendation of all twelve of you"). Because a verdict must be
unanimous, the jury may not recommend life unless it reaches a unanimous
verdict. The fact that subsection 16-3-20(C) requires the trial court to impose a life
sentence if the jury is not unanimous does not change the correctness of the
statement "the decision of the jury must be unanimous." We find trial counsel's
decision not to object to the trial court's refusal to answer the jury's questions is not
rendered unreasonable by the trial court's instruction "the decision of the jury must
be unanimous" because the trial court's charge in this respect was a correct
statement of South Carolina law.

As we have explained, there was no legal support on which trial counsel could
have relied to make an objection when the trial court refused to instruct the jury as
to the consequences of not reaching a verdict in the sentencing phase of Winkler's
trial. Therefore, the PCR court's finding that the jury was "entitled" to the
instruction was an error of law that controlled its decision to grant PCR. See

6
On several other occasions during the modified Allen charge, the trial court
encouraged the jury to reach a unanimous verdict, or otherwise used the word
unanimous. Only twice, however, did the trial judge instruct the jury its verdict
"must" be unanimous.
7
We do not intend in making this statement to comment on the propriety of
including such an instruction in an Allen charge. See Tucker v. Catoe, 346 S.C.
483, 493, 552 S.E.2d 712, 717 (2001) (analyzing the circumstance that the "jury
was told of the importance of a unanimous verdict" as a relevant factor in the
analysis of whether an Allen charge was coercive). As we explained in section II
of this opinion, whether the Allen charge here was coercive is not currently before
us. We simply observe that the instruction "the decision of the jury must be
unanimous" is a correct statement of law.
Jordan, 406 S.C. at 448, 752 S.E.2d at 540; Edwards, 392 S.C. at 455, 710 S.E.2d
at 64. We reverse the PCR court's ruling.

We are not prepared to hold that no situation will ever arise in which it is
appropriate for the trial court to consider answering such a question. If that
situation does arise, however, the trial court should be careful to keep the jury
focused on its duty to deliberate and not empower one juror to control the sentence
by refusing to participate in deliberations. See Jones, 527 U.S. at 382, 119 S. Ct. at
2099, 144 L. Ed. 2d at 382-83.

IV. The Brain Damage Issue

Winkler contends the PCR court abused its discretion when the court refused to
grant his PCR counsel additional time in which to obtain and analyze MRI and
PET scans of his brain. Without this evidence, Winkler argues, "the PCR court's
decision denying relief on this claim was not the product of a full and fair hearing."
We agree the PCR court abused its discretion in not granting Winkler additional
time.

A. Relevant Facts

Winkler filed his initial application for PCR on May 2, 2011 with the assistance of
the appellate defender who represented him on direct appeal. On June 24, 2011, as
required by subsection 17-27-160(B) of the South Carolina Code (2014), the PCR
court appointed new counsel—Emily Paavola and John R. Mills—who had not
previously represented Winkler. Winkler's initial application did not include a
claim for ineffective assistance of counsel for failing to properly investigate brain
damage.

Subsection 17-27-160(C) of the South Carolina Code (2014) provides, "Not later
than thirty days after the filing of the state's return, the judge shall convene a status
conference to schedule a hearing on the merits of the application for post-
conviction relief." In compliance with this requirement, the PCR court held a
status conference on July 7, 2011. Subsection 17-27-160(C) also requires the PCR
trial "must be scheduled within one hundred eighty days from the date of the status
conference, unless good cause is shown to justify a continuance." At the July 7
status conference, the PCR court entered a scheduling order setting several
deadlines, including (1) December 1, 2011 for filing an initial amended PCR
application; (2) May 1, 2012 for filing a final amended PCR application; and (3)
June 1, 2012 for completing discovery. The July 7 order also provided the PCR
trial would be held on or before July 1, 2012. On September 21, 2011, the court
amended the scheduling order to set the PCR trial for June 18, 2012.8

According to Winkler's brief in this appeal, "[a]pproximately two months into their
investigation, counsel noted potential indicators of brain damage, . . . [and] asked
the PCR court to grant funding for consultation with a neuropsychologist."9 The
PCR court granted the funding request on September 9, 2011. September 9 order
stated, "Present counsel's preliminary investigation has uncovered potential
neuropsychological impairments, and the record suggests that trial counsel failed to
obtain the services of a neuropsychologist." PCR counsel promptly retained a
neuropsychologist, who on November 2 recommended to counsel they "consider
consulting with a neurologist or neuropsychiatrist" for further information about
Winkler's brain damage. The neuropsychologist also informed counsel "it would
be very helpful to have neuroimaging." On November 3, counsel requested
funding to obtain the neuroimaging—MRI and PET scans of Winkler's brain—and
to analyze the images. The PCR court entered an order on November 21 finding,
"The record reflects that a neuropsychologist has recommended such imaging, and
that it may uncover neurologic impairment or dysfuntion that trial counsel failed to
discover." The PCR court found the request "appropriate," the neuroimaging and
analysis "reasonable and necessary," and ordered funding.

On November 30, Winkler filed a motion to extend the deadlines in the scheduling
order by ninety days. In the motion, counsel represented to the PCR court that they
had "begun the process of having these tests ordered by the local expert," but they
were "advised that it will take approximately 4 to 6 weeks before the initial testing
can be completed, and approximately 6 weeks after that before additional analysis
can be conducted by the out-of-state expert." Thus, PCR counsel could not obtain
the test results and determine whether they supported amending Winkler's PCR
application for at least ten weeks, or approximately mid-February—long after the
December 1 deadline for the initial amendment. On December 8, the PCR court
amended the scheduling order to extend the deadline for filing an initial amended
PCR application to February 2, 2012 and a final amended application by May 1,

8
The July 7 and September 21 orders are in not the Appendix. While we have no
doubt that good cause existed for extending the trial date beyond the 180 day
provision in subsection 17-27-160(C), it does not appear that either order contained
a specific finding of good cause.
9
The appendix does not reflect the precise date of the funding request.
2012. The PCR court denied counsel's request to extend the discovery deadline
and the PCR trial date.

On January 26, 2012, Winkler was sent to the Medical University of South
Carolina (MUSC) for the MRI and PET scans. Winkler obtained the MRI scan,
but he was unable to have a PET scan because his blood glucose level was 272
mg/dl—almost three times the normal level. On February 7, a physician from
MUSC wrote a letter to PCR counsel explaining, "If the patient has an abnormal
blood glucose concentration, then the imaging will not produce a reliable result"
and "Mr. Winkler's glucose concentration strongly suggests that he has untreated
diabetes."

On February 14, PCR counsel wrote the Department of Corrections to confirm a
phone conversation from the week before. In the letter, counsel informed the
Department of Corrections Winkler's testing indicated he likely had untreated
diabetes and counsel requested "Mr. Winkler receive testing and treatment for his
blood sugar . . . as soon as possible." On April 4, the physician from MUSC wrote
PCR counsel: "Based on my review of Mr. Winkler's medical summary . . . , it
appears that Mr. Winkler has finally begun treatment for his diabetes. However,
his blood sugar appears to remain far enough outside of the normal range that we
cannot perform an accurate study." The physician predicted it would take "six to
eight weeks of attentive treatment for glucose concentration to return to the normal
range." On April 5, the physician who was to analyze the scans wrote to counsel
and indicated "Conducting the analyses normally takes approximately six to eight
weeks from the time the images are received."

On April 10, 2012, Winkler filed a second motion to extend the deadlines in the
scheduling order. He asked specifically for "a continuance of 180 days to file his
final amended PCR application, and adjustments to the other scheduled dates
accordingly." In the motion, counsel represented, "Despite efforts to diligently
investigate this case, for unforeseen circumstances beyond their control, counsel
are not in a position to formulate, in good faith, all claims for post-conviction relief
by the May 1st deadline." The PCR court denied the motion "without oral
arguments or responsive brief."

B. Preservation

The State argues this issue is not properly before the Court because Winkler did
not petition for certiorari from the PCR court's ruling denying the motions to
extend the deadlines in the scheduling order. Instead, Winkler raised the issue in
his return to the State's petition. We find the issue is properly before us because
the issue was presented to the PCR court, ruled on by the PCR court, presented to
this Court, and the State responded. See Herron v. Century BMW, 395 S.C. 461,
465, 719 S.E.2d 640, 642 (2011) (stating issue preservation rules are "meant to
enable the lower court to rule properly after it has considered all relevant facts,
laws, and arguments" (quoting I'On, L.L.C. v. Mt. Pleasant, 338 S.C. 406, 422, 526
S.E.2d 716, 724 (2000))); In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729,
732 (2004) ("In order to preserve an issue for appeal, it must be raised to and ruled
upon by the trial court. In other words, the trial court must be given an opportunity
to resolve the issue before it is presented to the appellate court." (citing Wilder
Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998))).

C. Abuse of Discretion

We applaud the PCR court in its effort to comply with section 17-27-160's goal of
expediting PCR trials in death penalty cases. See S.C. Code Ann. § 17-27-160(E)
(2014) (referring to "expedited capital post-conviction relief hearings" (emphasis
added)). However, subsection 17-27-160(C) provides the PCR court should grant
additional time if "good cause is shown to justify a continuance." When Winkler's
PCR counsel filed the second motion to extend the deadlines in the scheduling
order, the PCR court found Winkler had "ample opportunity to investigate matters
pertaining to the applicant's 'potential brain damage' and 'mental health disorder.'"
We disagree with that finding.

PCR counsel was appointed on June 24, 2011 with no prior familiarity with the
case. The trial transcript alone is 2955 pages. Within two months of their
appointment, counsel discovered "potential indicators of brain damage" and
evidence that trial counsel did not investigate it. Counsel promptly sought funding
for a neuropsychologist, who in turn recommended neuroimaging. Counsel
promptly sought funding for the neuroimaging. When counsel discovered it could
take three months to get the results of the neuroimaging, they promptly filed a
motion seeking more time. Winkler's doctors then discovered he had a previously
undiagnosed medical condition that would prevent accurate results from the
neuroimaging. Counsel promptly attempted to get Winkler the medical treatment
he needed to enable reliable neuroimaging. From our review of these exchanges
between PCR counsel and Winkler's doctors, counsel acted efficiently in
attempting to obtain the neuroimaging the PCR court had previously ruled was
necessary. Nevertheless, in early April 2012—two months before the scheduled
trial date—Winkler's doctors informed PCR counsel it would take three to four
months to obtain the results of the neuroimaging. Under these circumstances, we
find no evidence to support a finding that PCR counsel had "ample opportunity" to
develop the case related to brain damage. Rather, based on the detailed
documentation of their investigation on the brain damage issue, we find it would
have been impossible for PCR counsel to obtain PET scans in time to have an
expert review them and be prepared to testify at the PCR trial. Therefore, "good
cause [was] shown to justify a continuance." § 17-27-160(C).

We find the PCR court abused its discretion in denying Winkler's second motion
for additional time. This ruling left PCR counsel in a position from which they
could not present evidence to support the claim that trial counsel was ineffective
for failing to investigate Winkler's brain damage. We find, therefore, the PCR
court's ruling on the brain damage claim should be vacated.

V. Conclusion

We granted certiorari on three questions. As to the first question, we REVERSE
the PCR court's ruling that Winkler's trial counsel was ineffective for not objecting
to the trial court's decision not to answer the jury's questions about the result of not
reaching a unanimous verdict. As to the second question, we REVERSE the PCR
court's denial of Winkler's second motion for additional time in which to obtain
and analyze MRI and PET scans of his brain. Based on our ruling, the PCR court's
subsequent denial of PCR as to trial counsel's alleged failure to investigate and
present evidence of his brain damage was also in error and is VACATED.
Because of our ruling on the first question, we need not reach the third question—
the propriety of the PCR court's attempt to sentence Winkler to life in prison
instead of remanding to the court of general sessions for a new sentencing
proceeding.

We REMAND to the PCR court for further proceedings.

KITTREDGE, J., concurs. HEARN, J., concurring in a separate
opinion. PLEICONES, C.J., concurring in part and dissenting in
part in a separate opinion in which BEATTY, J., concurs.
JUSTICE HEARN: Although I concur fully with the majority, I write

separately to address an additional error of law committed by the PCR court that I
believe requires reversal. Specifically, the PCR court allowed two jurors to testify
as to the jury's deliberative process in contravention of Rule 606(b) of the South
Carolina Rules of Evidence.10 For this reason, I would reverse and remand for a
new PCR hearing and thus concur fully but write separately.

In his PCR application, Winkler alleged members of the jury physically
intimidated the only African American juror to change his vote from life to death
during sentencing deliberations. Before the PCR hearing began, the State made a
motion to exclude any testimony by the jurors pursuant to Rule 606(b), but the
court denied the motion and allowed PCR counsel to call two jurors, Juror
Wallingford and Juror Roughton, to testify as to this issue.

Prior to the jurors being called, the State renewed its objection to their
testimony based on Rule 606 grounds. In both instances, the PCR court allowed
the testimony, stating that as the factfinder at the PCR hearing, it could discern the
portions of admissible testimony from the portions of inadmissible testimony. The
two jurors then testified—without further objection from the State—as to specifics
that occurred during the jury's deliberations during the sentencing phase, including
the way they initially voted and the reasons they changed their votes from life to
death.11

10
See Rule 606(b), SCRE (prohibiting post-verdict juror testimony regarding the
jury's internal workings); Shumpert v. State, 378 S.C. 62, 66–67, 661 S.E.2d 369,
371 (2008) (explaining Rule 606, SCRE, allows evidence regarding external
influences on the jury's deliberations to be introduced, but prohibits introducing
evidence of internal influences affecting the jury's verdict—such as comments
made during deliberations, or the effects of those comments—unless such evidence
is necessary to ensure the trial's fundamental fairness).
11
Winkler argues because the State did not object during the jurors' testimony, this
issue is unpreserved. See generally State v. Johnson, 324 S.C. 38, 41, 476 S.E.2d
681, 682 (1996) (holding that a contemporaneous objection to allegedly
inadmissible testimony is required to properly preserve the error for appellate
review (citation omitted)). I disagree and would find the issue preserved because
when the PCR court overruled the State's Rule 606(b) objection and stated it would
determine the admissibility of the testimony received, it relieved the State of its
burden to contemporaneously object to the inadmissible portions of the testimony.
See State v. Bryant, 316 S.C. 216, 220, 447 S.E.2d 852, 855 (1994) (finding to
preserve an issue for appellate review, a party need not move to strike testimony
 In particular, Juror Wallingford (the African American juror) testified that
contrary to PCR counsel's assertions, he was not physically coerced or racially
threatened into changing his vote from life to death. Moreover, although Juror
Roughton's testimony briefly touched on Juror Wallingford's treatment at the hands
of the other jurors, PCR counsel primarily elicited testimony about Juror
Roughton's reasons for changing her vote from life to death. Juror Roughton
testified she suffered extreme regret over changing her mind and voting for death,
and in retrospect, she did not believe Winkler deserved the death penalty. Further,
Juror Roughton testified she—and possibly several other jurors—were extremely
confused over the trial court's jury instructions, particularly as they related to
whether the sentence (death or life) had to be unanimous. Juror Roughton stated
she believed if the jury did not unanimously choose death, Winkler would be
acquitted and "be out."

At the close of Winkler's case-in-chief, the State moved for a directed
verdict on the claim that the lone African American juror was physically
threatened to change his vote from life to death. PCR counsel conceded there was
no evidence of physical coercion and withdrew the claim.12

Later, in the initial order granting relief, the PCR court found trial counsel
was deficient during the sentencing phase for failing to object to the trial court's
"refusal to answer the jury's questions on what would happen if the jury could not
reach a unanimous verdict on Winkler's sentence." The PCR court found that
deficiency prejudiced Winkler, although it did not cite any specific facts in support
of its finding. Rather, the PCR court stated only, "Had the jury's questions been
answered by the judge, a reasonable probability exists that the jury would not have
reached a unanimous verdict and the [trial] court would have imposed a sentence
of life in prison."13 Upon the State's motion to alter or amend the judgment, the

which the trial court had already ruled was proper, as such a motion would have
been futile); State v. Ross, 272 S.C. 56, 60–61, 249 S.E.2d 159, 162 (1978)
(holding that once the judge rules on an objection, counsel need not repeat the
objection after each question).
12
The State also moved for a directed verdict on Winkler's claim that the trial
court's Allen charge was unduly coercive. See Allen v. United States, 164 U.S. 492
(1896). The State argued, inter alia, PCR counsel was attempting to support its
claim by using Juror Roughton's testimony about what caused her to change her
mind and vote for death instead of life in violation of Rule 606(b), SCRE. The
PCR court denied the State's motion for a directed verdict as to that issue.
13
Generally, a defendant's direct appeal centers on the trial judge's errors, whereas
PCR court further explicated its prejudice finding, citing exclusively to Juror
Roughton's testimony regarding the jury's confusion and her regret.14

Rule 606(b), SCRE, states:

Upon an inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything upon that
or any other juror's mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or concerning the
juror's mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial
information was improperly brought to the jury's attention or whether
any outside influence was improperly brought to bear upon any juror.
Nor may a juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from
testifying be received for these purposes.

PCR focuses on trial counsel's mistakes. Thus, given the procedural posture of this
case, I find it significant that the PCR court appeared to find error in the trial
judge's failure to answer the questions, rather than trial counsel's failure to object
to the judge's actions. Regardless, as outlined by the majority, it is at best unclear
whether an objection would have prompted the trial court to answer the jury's
questions.
14
In discussing the prejudice resulting from counsel's failure to object, the PCR
court merely stated:

[T]he testimony presented at this [PCR] trial clearly indicates that at
least one juror who opposed the death sentence and desired a life
sentence incorrectly thought that the applicant would be free from any
sentence unless the jury reached a unanimous decision on sentencing.
That juror was led to believe that the applicant would be free to go or,
at a minimum, would receive a new trial on his guilt or innocence
unless the jury reached a unanimous decision of death or life in
prison. The evidence indicates that the jury's unanimous decision to
impose the death sentence in this case was not based upon a correct
understanding of the law but, rather, on the incorrect thought that the
applicant would go free or get a new trial.
(Emphasis added). Nonetheless, the Court has previously held that "juror
testimony involving internal misconduct may be received [] when necessary to
ensure fundamental fairness." Shumpert, 378 S.C. at 67, 661 S.E.2d at 371.

Fundamental fairness is an extremely high bar that essentially requires a
defendant to demonstrate the jury's verdict amounted to a denial of his right to due
process. Id. at 68, 661 S.E.2d at 372; State v. Galbreath, 359 S.C. 398, 406, 597
S.E.2d 845, 849 (Ct. App. 2004) (citing State v. Hunter, 320 S.C. 85, 88, 463
S.E.2d 314, 316 (1995)). In fact, the Court has thus far only recognized two types
of allegations serious enough to implicate a trial's fundamental fairness: either (1)
the jury's verdict was a result of racial or gender intimidation of a particular juror;
or (2) the jury began its deliberations prior to the close of all of the evidence. See
Shumpert, 378 S.C. at 67–68, 661 S.E.2d at 371–72 (discussing State v. Aldret, 333
S.C. 307, 314, 509 S.E.2d 811, 814 (1999); Hunter, 320 S.C. at 85, 463 S.E.2d at
314).

In numerous other cases the Court found, absent coercion, a juror's post-
verdict testimony was inadmissible. See, e.g., State v. Pittman, 373 S.C. 527, 554–
55, 647 S.E.2d 144, 158 (2008); Galbreath, 359 S.C. at 405–07, 597 S.E.2d at 849.
Often, such testimony contains merely a "generic assertion that a juror would vote
the opposite way if given another opportunity," which the Court has previously
found "too closely resembles a case of buyer's remorse from a guilty verdict to be
given much credence." Shumpert, 378 S.C. at 68, 661 S.E.2d at 372. Moreover,
even allegations that a juror misunderstood the law do not implicate fundamental
fairness or due process. Pittman, 373 S.C. at 554, 647 S.E.2d at 158 (finding
jurors' misunderstanding of the law and other "internal influences," such as
incorrect information coming from other jurors, did not implicate fundamental
fairness, and thus testimony to that effect was inadmissible); Shumpert, 378 S.C. at
68, 661 S.E.2d at 372 (same); Galbreath, 359 S.C. at 405, 406, 597 S.E.2d at 848,
849 (collecting out-of-state cases).

Here, Winkler's allegations of coercion—particularly involving the lone
African American juror on the jury—raised a fundamental fairness issue and
warranted the PCR court's admission of the jurors' testimony over the State's Rule
606(b) objection. See Hunter, 320 S.C. at 88, 463 S.E.2d at 316 ("We find
allegations of racial prejudice [or intimidation] involve principles of fundamental
fairness. Accordingly, the trial judge was proper in considering [the juror's]
testimony."). However, critically, the PCR court should have granted the State's
motion in part and limited the testimony to the allegations of coercion. In failing to
do so, I believe the PCR court committed an error of law.

Specifically, after the State's objection to each juror's testimony, the PCR
court informed the State it would hear all of the testimony and later decide which
portions were admissible and which were inadmissible. Thus, the PCR court erred
in its interpretation of Rule 606(b), SCRE, by allowing PCR counsel to elicit a
significant amount of testimony as to the jury's deliberative process. Moreover, the
PCR court compounded this error by allowing the inadmissible portion of Juror
Roughton's testimony to pervade its prejudice analysis in its final order, citing
exclusively to Juror Roughton's confusion and regret over her decision to vote for
death in support of its prejudice finding.15 As such, there is no admissible evidence
in the record to support the PCR court's findings, particularly with respect to
prejudice, and I would reverse and remand for a new PCR hearing in which the
jurors' testimony is excluded.16 See Dempsey v. State, 363 S.C. 365, 368, 610
S.E.2d 812, 814 (2005) (stating the Court will reverse the PCR court if no
probative evidence exists to support the PCR court's findings).

15
Notably, much of Juror Roughton's testimony is precisely the type of testimony
Rule 606(b) is designed to prohibit. See Shumpert, 378 S.C. at 68, 661 S.E.2d at
372 (stating courts should give little credence to testimony amounting to mere
buyer's remorse). Indeed, she plainly stated she suffered (and continues to suffer)
debilitating regret over her decision to vote in favor of the death penalty. Further,
a portion of Juror Roughton's testimony revealed the jury may have been laboring
under a misapprehension that Winkler might "be out" if it did not unanimously
vote for death. At best, that testimony revealed the jury may have misunderstood
the law, which the Court has repeatedly found does not implicate fundamental
fairness. See, e.g., Pittman, 373 S.C. at 554, 647 S.E.2d at 158; Shumpert, 378
S.C. at 68, 661 S.E.2d at 372.
16
Because Winkler withdrew his claim that Juror Wallingford was coerced into
voting for death, there are no remaining allegations implicating the fundamental
fairness of the trial, and thus no additional allegations that would warrant admitting
any of the jurors' testimony.
 For the foregoing reasons, I concur fully with the majority.17

17
The majority rightly declines to address a second, moot error of law committed
by the PCR court. Specifically, after finding counsel ineffective during the
sentencing phase, the PCR court vacated Winkler's death sentence and sua sponte
imposed a sentence of life imprisonment without the possibility of parole. As the
State argues, and Winkler concedes in his brief, should the PCR court vacate a
death sentence, the appropriate remedy is not to itself impose a life sentence on the
PCR applicant, but rather to remand the case back to the court of general sessions
for a new sentencing proceeding. Tucker v. Catoe, 346 S.C. 483, 495, 552 S.E.2d
712, 718 (2001); see also Singleton v. State, 313 S.C. 75, 86, 437 S.E.2d 53, 59
(1993) (finding the appropriate relief to grant upon vacating a death sentence is
remanding for a new sentencing hearing, and holding that imposing an automatic
life sentence without a new sentencing hearing "appears to be beyond the scope of
an appropriate remedy on PCR" (citations omitted)).
CHIEF JUSTICE PLEICONES: I agree that we must reverse and remand the
Post-Conviction Relief (PCR) order because the PCR judge abused his discretion
in denying respondent-petitioner's (Winkler's) request for a continuance. I write
separately because I would uphold the PCR judge's finding that trial counsel were
ineffective in failing to ask the trial judge to respond to the jury's inquires relating
to the effect of a non-unanimous verdict. Thus, I would hold that Winkler is
entitled to a new sentencing proceeding18 even if on remand he is unable to
establish reversible error on the mental health issue.

I begin by noting that the majority approaches this case as if the burden were on
Winkler, rather than on the State, to persuade the Court of reversible error in the
PCR judge's ineffective assistance of counsel ruling and that this error pervades its
analysis. Even where the State is the petitioner, our standard of review requires
that we affirm the PCR judge's factual findings if they are supported by any
evidence of probative evidence in the record. E.g., Roberts v. State, 361 S.C. 1,
602 S.E.2d 768 (2004). Further, as explained below, I believe the majority errs
when it converts the PCR judge's factual conclusions into an error of law.

The PCR judge found that a reasonable attorney would have objected to the trial
court's refusal to answer questions raised by the jury's notes asking what would
happen if they could not reach a unanimous verdict. The majority holds that the
PCR judge's ruling was affected by an error of law because there was no state or
federal precedent which would have supported a request by trial counsel that the
jury be instructed that a deadlocked jury would result in a life sentence. I believe
that the PCR judge's order is more nuanced than the majority acknowledges. In
finding counsel's performance deficient, the PCR judge held:

Even if the jury is not entitled to an instruction that the
defendant will receive a life sentence if they cannot reach a
unanimous verdict of death, 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.
During the Allen19 charge by the judge in this case, the jury was
informed that the verdict must be unanimous. However, S.C.
Code Ann. § 16-3-20 does not require the jury to reach a

18
I agree with the majority that the appropriate relief here is a new sentencing

proceeding, and that the PCR judge erred in sentencing Winkler to life. See

Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993).

19
Allen v. United States, 164 U.S. 492 (1896).

 unanimous verdict. It only requires a unanimous jury verdict if
the death penalty is to be imposed.

As I read the order, the PCR judge held that this jury should have been instructed
that the result of their inability to reach a unanimous verdict would be to make the
sentence a legal issue to be decided by the judge.

In finding legal error here, the majority relies on State v. Adams, 277 S.C. 115, 283
S.E.2d 582 (1987) overruled on other grounds by State v. Torrence, 305 S.C. 45,
406 S.E.2d 315 (1991), and State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1982)
as the state precedents. Both of these older cases stand (if they continue to stand at
all) for the proposition that a capital sentencing jury need not be instructed before
beginning deliberations on the effect of a non-unanimous verdict. The federal
precedent relied upon by the majority is a United States Supreme Court decision
deciding the same pre-deliberation issue under the Eighth Amendment. See Jones
v. United States, 527 U.S. 373 (1999). Here, of course, we are not dealing with a
pre-deliberation instruction request nor with an Eighth Amendment claim, but
rather with the question whether due process required this jury's mid-deliberation
questions be answered truthfully. The majority acknowledges these three cases are
distinguishable, but states there are three reasons why "that difference does not
change our decision." In my opinion, none of these three reasons creates an error
of law in the PCR judge's finding that trial counsel were deficient.

The first reason given by the majority is that in 1989, the Fourth Circuit
(interpreting Virginia law), held that "no obligation exists for the trial judge to
inform the jury of the ultimate result should they fail to reach a verdict." Evans v.
Thompson, 881 F.2d 117 (4th Cir. 1989). The Evans jury asked whether a life
sentence must be unanimous, and Evans asserted that his due process rights were
violated when the jury was instructed that their "verdict must be unanimous as to
either life imprisonment or death" rather than being instructed that "a split decision
. . . automatically becomes life . . . ." Id. at 123. Winkler's jury, however, did not
ask whether a life sentence must be unanimous but instead sent two notes. The
first, sent after six hours of deliberation, read:

Could you please explain what happens if we're not able to
reach a unanimous decision?

The trial judge interpreted the question, without objection, "to be one of academic
interest" and answered with a note stating "I cannot answer the question the way
you have phrased it; if you have any questions let me know." Two hours later, the
trial judge sent a note to the jury asking "do you have any questions or messages
for the court?" The jury responded asking "What [does] the law state when a jury
does not reach any unanimous decision at this stage of the trial?" The judge
responded with this note: "I cannot answer hypothetical questions. Do you have
any specific questions to ask or comments that you would like to make about your
jury?"20

In my opinion, it is a stretch to equate the question asked by Evan's jury, whether a
life sentence must be unanimous, with the questions asked by Winkler's jury,
which was obviously struggling with the consequences if they are unable to return
a unanimous verdict. In any case, it is even more of a stretch to say that Winkler's
trial counsel were reasonable to rely on a Fourth Circuit case - of which there is no
evidence they were aware - in deciding not to ask the trial judge to answer the
jury's questions. Moreover, the PCR judge did not hold that trial counsel were
deficient for failing to ask for an "automatic life" charge as in Evans, but rather
held that a charge to the effect that the sentence would become a matter for the
court should have been given. The issue before us is whether there is any evidence
to support the PCR judge's finding that reasonable counsel would have asked for an
instruction, not whether we can find a twenty-five year old federal case interpreting
the law of a different jurisdiction that would arguably support their decision not to
make such a request. Roberts, supra.

In my opinion, none of the cases relied upon by the majority are precedents that
excuse a reasonable advocate operating under prevailing professional norms from
requesting that this jury's repeated questions be answered. Wiggins v. Smith, 539
U.S. 510 (2003) (ineffectiveness standard in death penalty sentencing PCRs).
Instead, Winkler's trial attorneys allowed his jury to be told their questions were
merely "hypothetical," non-specific, and not capable of being answered.

The majority's second reason why this case is different is, to me, the most
concerning. The majority holds the difference here is that unlike the three cases
which it cites, the present case is not a direct appeal. Were it in this procedural
posture, we would answer the question whether, under the facts and circumstances
of this case, the jury's inquiries should have been answered. Instead, since this is

20
The jury subsequently sent a note saying they were struggling to reach a
unanimous decision, and were given their first Allen charge at 12:26 am, more than
twelve hours after they began deliberations. The jury left without continuing
deliberations and returned at 9:15 am the next day, requested they rehear the Allen
charge, and following that exited the courtroom, returning a verdict at 10:14 am.
"only" a PCR, the question is not whether the capital defendant's due process rights
were violated, but instead merely whether his trial counsel acted reasonably. As
explained below, I cannot countenance what I see as the Court's continued
devaluation of the constitutional rights of capital defendants. In 1991, a majority
of the Court abolished the doctrine of in favorem vitae which had required the
Court to search the record in a capital appeal for legal error. State v. Torrence,
supra. The majority of the Court justified the abolition of this common law
doctrine in large part because of the protections afforded capital defendants by the
Uniform Post-Conviction Procedure Act. That PCR is a poor substitute for in
favorem review, however, was made explicit in Franklin v. Catoe, 346 S.C. 563,
552 S.E.2d 718 (2001). In Franklin, the capital PCR applicant contended trial
counsel were ineffective in failing to inform him of his statutory right to argue to
the jury in the guilt phase of his trial. The Franklin majority acknowledged that
the applicant had been denied this statutory right, and that prior to the abolition of
in favorem, this error would have warranted a new trial. The Franklin majority
held, however, that with PCR "replacing" in favorem review, a capital defendant
now bore the burden of proving not only error, but also constitutional prejudice.
Today, with its second reason, the majority highlights the unfulfilled promise of
Torrence. I cannot agree that we should afford less protection to capital
defendants who are forced to litigate claims of constitutional deprivation in PCR
than to those whose trial counsel preserve these issues for direct appeal.

The third reason advanced why the PCR judge's ruling must be reversed is that
"there is little possibility that answering [this] jury's question[s] could assist the
jury in deliberations." I cannot agree that this jury would not have been aided in its
deliberations had it been told that the law would resolve the sentencing issue if it
were unable to reach a unanimous decision. Further, this third reason seems to me
a "difference" directed not at the question whether counsel were deficient, but
rather whether Winkler was prejudiced by the non-answers given to his jury.
Finally, I find unpersuasive the majority's stated concerns that answering this jury's
questions might have diverted a juror from her duty to deliberate, or caused her to
realize her ability to control the situation by refusing to do so. The issue before us
is not whether jury's should be given a pre-deliberation charge on the effect of their
failure to reach a sentencing verdict but whether jurors who repeatedly raise
questions should be told the truth. In my opinion, the majority's concerns reflect a
lack of faith in our jurors, and in the jury system as a whole.

Turning back to the question of deficient performance, in Simmons v. South
Carolina, 512 U.S. 154 (1994), the United States Supreme Court held the capital
defendant's due process rights were violated when his jury's question regarding
parole eligibility was not answered, leaving them to reasonably believe he would
be released on parole if not executed. Here, the failure to answer this jury's
questions reasonably led them to believe either (1) that they had no option but to
return a unanimous verdict of life or death, thereby coercing them, or (2) that the
consequence of a failure to agree on one of these two choices would result in an
entirely different sentence, that is, a term of years or probation, leaving Winkler in
a similar situation to Simmons. What other conclusions could the jury draw from
being told that their inquiries as to what would happen should they not reach a
unanimous verdict was merely "hypothetical," and not capable of being answered?
While Simmons may not decide the exact due process issue raised by the facts of
this case, I find a reasonable death-qualified attorney operating under prevailing
professional norms would have seen the analogy, and used Simmons to argue for
the judge to truthfully answer this jury's questions. Therefore, in my opinion, there
is evidence to support the PCR judge's factual finding that counsel were deficient
here. Roberts, supra.

It troubles me greatly that the majority uses cases that, by its own candid
admission, are "different" to excuse counsels' failure to ask that the jury's questions
be answered. This is especially so in a capital case where both the legislature and
this Court have recognized the need for specially qualified trial counsel for
indigent defendants such as Winkler.21 The prevailing professional norms of these
specialized practitioners require they recognize, litigate, and preserve for appeal
novel issues, be aware of current capital jurisprudence, and challenge precedents
either directly or through analogy.22

In my opinion, we must uphold the PCR judge's factual findings that trial counsel
were deficient in failing to ask for jury instructions that addressed the jury's
questions, that as a result Winkler's due process rights were violated, and his legal
conclusion that Winkler was prejudiced. Roberts, supra.

Winkler's jury's recommendation of death was not the result of measured
deliberation, but rather the product of significant jury preoccupation and confusion

21
See S.C. Code Ann. § 16-3-26(B)(1); (F) (2016); Rule 421, SCACR; see also
Guideline 8.1, ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases (2003); State v. Barnes, 407 S.C. 27, 753 S.E.2d
545 (2014) (dissent discusses need for specially qualified capital trial attorneys to
help address the "heightened reliability" requirement of capital sentencing).
22
Cf., "[T]he law is not always clear and never is static." Commt. 1 to Rule 3.1,
Rule 407, SCACR.
with what would occur should they not reach a unanimous verdict, compounded by
the court's refusal to treat its questions as valid. Accordingly, in my opinion,
Winkler is entitled to a new sentencing hearing even if he does not otherwise
establish his entitlement to this relief on remand on his claim of ineffective
assistance for failing to present evidence of neurological and cognitive impairment.

BEATTY, J., concurs.