L.C. Underwood may get new trial

By Jessie Burchette - SalisburyPost.com

Friday, January 15, 2010

A federal court has vacated the 13-year-old murder conviction of a former Salisbury policeman.

The Fourth Circuit Court of Appeals, based in Richmond, Va., has ordered L.C. Underwood be granted a new trial or be released from jail in 180 days.

The Fourth Circuit Court ruled that Underwood had ineffective counsel, questioned the defense's trial strategy and concluded it was unsound.

Lamont Claxton Underwood, known as "L.C.," was convicted in 1997 in Watauga County Superior Court for the 1993 kidnapping and murder of Viktor Gunnarsson, a 40-year-old Swedish citizen who was a resident of Lakewood Apartments off Statesville Boulevard.

The trial drew international attention since Gunnersson 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 58, 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, eventual kidnapping Gunnarsson from his home and taking him to a secluded area along the Blue Ridge Parkway in Watauga County before shooting and killing him.

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.

The Fourth Circuit Court opinion rendered on Dec. 23, 2009, cited mishandling of several issues, noting that "the defense (attorneys) essentially inflicted a fatal wound to the credibility of their own case."

Underwood was represented by Boone attorneys Bruce Kaplan and Chester Whittle.

In the 27-page opinion, the court repeatedly cited the defense attorney's opening remarks to the jury promising:

- that they had a confession from someone else who claimed to have killed Gunnersson;

- that another witness (Terry Osborne, then Rowan County Clerk of Court) saw someone else outside of Miller's house at the time of the murder and a composite sketch had been made that didn't look like Underwood;

- that an eyewitness saw someone near where Gunnarsson's body was found in Deep Gap, and that when the witness saw Underwood in a lineup with six other men, he told investigators the person he saw was not in the lineup.

When the state rested its case, the defense declined to put on any evidence.

The court noted the initial closing argument "quite interestingly, included a monologue on the origins and development of our Nation's jury system."

A prosecutor then went through the list of promises made by the defense, asking where were the promised witnesses and the evidence.

The court wrote, "It could not have been sound trial strategy for defense counsel to have created such high, unattainable expectations in the jury by promising to present exculpating evidence. To be sure, defense counsel gained no tactical advantages by making the promise.

"Thus, counsel's whetting of the jury's appetite with the promise of a confession with eye witness testimony which counsel knew or should have known was not exculpating, at the very least was irresponsible. By taking the approach which they used here, defense counsel actually enabled the state to strengthen its circumstantial case É."

The court continues over several pages to cite the defense's failures, concluding, the court "would find it quite difficult to imagine a more illogical, unreasonable strategy than to promise a jury exculpatory evidence of this nature and then fail both to present it and to effectively explain its omission. É Defense counsels' conduct was deficient and prejudicial É"

The state Supreme Court upheld Underwood's conviction in October of 2000.

In 2001, Underwood filed a motion in Watauga County Superior Court seeking appropriate relief, contending he was subjected to ineffective assistance by shortcomings of his counsel, which included failing to call key witnesses.

On Aug. 30, 2004, the state Court of Appeals denied the petition. Underwood then appealed the decision to the Fourth Circuit.

L.C. Underwood's conviction upheld

Gunnarsson had been accused and later cleared in the 1986 assassination
of the Swedish prime minister.