No new trial for L.C. Underwood

Published 12:00 am Wednesday, January 12, 2011

Staff report
A former Salisbury police officer serving life in prison for murder will not get a new trial, a federal appeals court has ruled.
In a ruling filed Wednesday, the Fourth Circuit Court of Appeals overturned a year-old order by a federal judge to vacate the conviction of Lamont Claxton “L.C.” Underwood in the 1993 kidnapping and murder of Viktor Gunnarsson.
An opinion written to accompany the order, Fourth Circuit judges said the state had “overwhelming evidence” against Underwood and that even if his defense attorneys were ineffective as he argued, that would not have changed the outcome of the case.
The trial drew international attention since Gunnarsson had been accused and cleared in the 1986 assassination of Swedish Prime Minister Olof Palme. The Discovery Channel aired a documentary on the investigation after Underwood was convicted.
Underwood, now 59, is serving a life sentence plus 40 years. He is currently in the Marion Correctional Center.
Prosecutors contended that Underwood was jealous of Gunnarsson, seeing him as a romantic rival for Kay Weden, Underwood’s former fiance. Prosecutors contended that Underwood stalked, spied on and harassed Weden before kidnapping Gunnarsson from his home, locking him in the trunk of his 1979 Chevrolet Monte Carlo and driving him to a secluded area 109 miles away along the Blue Ridge Parkway in Watauga County before shooting and killing him with a .22-caliber rifle.
The state also contended that three days later, Underwood shot and killed Weden’s mother, Catherine Miller, at her Westcliffe home off U.S. 70. Underwood was never tried for Miller’s death.
In January 2010, the federal court for the Western District of North Carolina agreed with Underwood’s claim of ineffective counsel in the case and ordered he be given a new trial or released from prison.
Senior Judge Graham Mullen wrote in his opinion that Underwood’s defense employed an “unreasonable strategy” in the 1997 trial.
In opening arguments, defense attorneys told jurors they would present a confession from someone else who claimed to have killed Gunnarsson, as well as witnesses and other evidence that would clear Underwood. The defense put on no evidence.
Graham said it “would be quite difficult to imagine a more illogical, unreasonable strategy” than to promise a jury evidence of a defendant’s innocence then fail to present that evidence or explain why it was not presented.
That “at the very least was irresponsible,” Graham wrote. He went on to say the defense “conduct was deficient and prejudicial” and actually helped prosecutors strengthened a case built on circumstantial evidence.
In a 28-page opinion accompanying the ruling reversing the district court order, the Fourth Circuit Court said Underwood not only had to prove his attorneys were ineffective, but had they not been, the outcome of the trial would have been different.
The state presented “an abundance of evidence” that Underwood had motive for the killing, the court said, namely that he “was a man who would not take ‘no’ for an answer when Weden made crystal clear to him that she no longer desired to continue their relationship.”
The opinion says the state’s evidence showed clear examples of Underwood’s “raging jealousy” of Weden and threats against her and at least one other man she dated after breaking up with Underwood.
The Fourth Circuit court opinion said also that “physical evidence obtained by law enforcement overwhelmingly tied Underwood to Gunnarsson’s murder.” That evidence included an expert’s testimony that electrical tape used to bind Gunnarsson matched tape found at Underwood’s home; that ballistics tests showed the bullets used to kill Gunnarsson could have been fired from a gun Underwood owned; that despite a cleaning of the Monte Carlo, including shampooing the carpet in the trunk, investigators found scratches and a mark resembling a footprint inside the trunk lid; and that hair found in the trunk of Underwood’s car had the same DNA sequencing as a sample of Gunnarsson’s blood.
The Fourth Circuit opinion says Underwood’s attorneys had intended to question investigators about, among other things, another man who had told friends and relatives while drunk that he killed Gunnarsson but later recanted. But the trial judge agreed with prosecutors that defense could not raise those issues during cross examination, but had to bring it up during presentation of their case.
“…Underwood cannot overcome the fact that, when all was said and done, the state’s case against him was iron-clad and overwhelming,” the Fourth Circuit opinion says, “and it is clear to us that there is no reasonable probability that, but for defense counsel’s assumed unprofessional error, the outcome of Underwood’s trial would have been different.”