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 postconviction 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 postverdict 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.