Underwood v. Harkleroad , 411 F. App'x 569 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6077
LAMONT CLAXTON UNDERWOOD,
Petitioner - Appellee,
v.
SID HARKLEROAD,
Respondent - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:04-cv-00193-GCM)
Argued: September 21, 2010 Decided: January 12, 2011
Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge, and
Mark S. DAVIS, United States District Judge for the Eastern
District of Virginia, sitting by designation.
Reversed by unpublished per curiam opinion.
ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellant. Milton Gordon
Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel Hill, North
Carolina, for Appellee. ON BRIEF: Roy Cooper, Attorney General
of the State of North Carolina, Raleigh, North Carolina, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Lamont Claxton Underwood
(Underwood) of Salisbury, North Carolina was convicted in the
Superior Court, Watauga County, North Carolina of the
first-degree murder and first-degree kidnapping of a man who
dated his former fiancée. Underwood was sentenced to a term of
life imprisonment on the first-degree murder conviction and a
consecutive sentence of forty years on the first-degree
kidnapping conviction. After unsuccessfully challenging his
convictions on direct appeal and in state habeas proceedings,
Underwood filed an application for a writ of habeas corpus in
the United States District Court for the Western District of
North Carolina, pursuant to 28 U.S.C. § 2254. 1 On December 23,
2009, the district court granted Underwood a conditional writ of
habeas corpus, such that if the state court did not grant
Underwood a new trial within 180 days, Underwood had to be set
free. The State noted a timely appeal and moved for a stay of
the district court’s judgment in its entirety pending resolution
of this appeal. The district court granted the State’s motion
for a stay.
1
Underwood named Sidney Harkleroad, Administrator of the
Marion Correctional Institution in Marion, North Carolina, as
Respondent. For ease of reference, we refer to Respondent as
“the State” throughout this opinion.
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For reasons that follow, we reverse the judgment of the
district court.
I
On January 30, 1996, a Watauga County, North Carolina grand
jury indicted Underwood for the first-degree kidnapping and
first-degree murder of Viktor Gunnarsson. Underwood pled not
guilty and proceeded to a jury trial, where he was represented
by attorneys Bruce Kaplan (Defense Counsel Kaplan) and Chester
Whittle, Jr. (Defense Counsel Whittle). 2
The State’s theory of the case was that Underwood, a former
law enforcement officer, was a jealous, jilted lover, who killed
Gunnarsson because he saw him as a romantic rival for the
affections of Kay Weden (Weden), Underwood’s former fiancée.
Underwood, Weden, and Gunnarsson all lived in Salisbury, North
Carolina. 3 The State theorized that Underwood had refused to
accept Weden’s decision to break up with him; that he had
stalked, spied on, and harassed Weden and her teenage son Jason
Weden; that Gunnarsson had begun to date Weden shortly before
his murder; and that, upon learning that Weden was dating
2
At times, for ease of reference, when referring to Defense
Counsel Kaplan and Defense Counsel Whittle collectively, we will
refer to them as “Defense Counsel.”
3
Salisbury is in Rowan County.
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Gunnarsson, Underwood kidnapped Gunnarsson from his apartment,
took him in the trunk of his 1979 Monte Carlo to a secluded area
approximately 109 miles away along the Blue Ridge Parkway in
Watauga County, where Underwood shot and killed Gunnarsson with
a .22 caliber rifle. In addition, the State theorized that
approximately three days later, Underwood also shot and killed
Weden’s mother, Catherine Miller (Miller), also of Salisbury,
because Miller had not been supportive of Weden’s relationship
with him. The indictment, however, only pertained to the first-
degree kidnapping and first-degree murder of Gunnarsson.
The North Carolina Court of Appeals summarized the evidence
from Underwood’s jury trial as follows:
The State’s evidence at trial tended to show that
on 7 January 1994, the body of Viktor Gunnarsson
(“Gunnarsson”) was found near Deep Gap, North Carolina
by a North Carolina Department of Transportation
employee. The body was located about 300 feet from a
ramp to the Blue Ridge Parkway in Watauga County.
Gunnarsson had been dead for weeks and the cause of
death, as determined by the Chief Medical Examiner,
was a gunshot wound to the head. Two .22 caliber
bullets were removed from Gunnarsson’s head and the
contents of his stomach revealed partially digested
potatoes, suggesting that he died within [four to
five] hours of eating. Gunnarsson had not been seen
since 3 December 1993, when he had dinner with Kay
Weden (“Weden”), a former girlfriend of defendant. As
a part of Gunnarsson’s dinner he had eaten potatoes.
Weden had ended a relationship with defendant in
December of 1993. During her relationship with
defendant, she received several anonymous threatening
letters. One such letter stated that a .22 caliber
bullet had been fired into her house. A deputy
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sheriff later found a .22 caliber bullet lodged in the
exterior of her home near her son’s bedroom.
Defendant was employed in December of 1993 at
Salisbury High School as a Salisbury police officer.
An examination of the typewriters at the school
revealed that the same typewriter ribbon had been used
to type Weden’s address and a letter that had been
sent to her.
Defendant possessed a .22 caliber pistol and
rifle, and was issued a Colt .38 revolver while
serving as deputy sheriff in Lincoln County. The
inventory records at the Lincoln Police Department
showed that the gun had been turned in but the actual
weapon was never located. Several witnesses testified
that they had seen defendant in possession of a .38
caliber weapon just prior to the December murders.
On the night of 3 December 1993, Gunnarsson’s car
was parked at the Weden residence. Defendant drove by
Weden’s house and saw Gunnarsson’s car. Shirley
Scott, a woman in the car with defendant, testified
that they drove by Weden’s house twice that night.
Jason Weden, Weden’s son, testified that he saw
defendant drive by the house around 11:00 p.m.
Defendant called his friend, Rick Hillard, at 11:30
p.m. and gave him a license plate number and asked him
to perform a check on the license plate number.
Defendant received a call shortly thereafter during
which Scott heard Hillard say, “Viktor Gunnarsson.”
The license plate number was for a vehicle registered
to Gunnarsson. His address was listed in the
Salisbury phone directory.
In December 1993 or January 1994, defendant took
his 1979 Monte Carlo to a car wash and had it
thoroughly cleaned, including having the trunk carpet
shampooed. When police searched the car on 1 February
1994, scratches were observed inside the trunk
compartment and a mark that resembled a footprint was
seen on the underside of the trunk lid. The trunk mat
was removed from the car. Mitochondrial DNA and
microscopic sequences were taken from hairs found on
the trunk mat of defendant’s car.
On 6 December 1993, defendant visited a
restaurant where he knew that Weden would be dining
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with her mother, Catherine Miller (“Miller”), and
friends. Defendant stated to Weden that Miller had
ruined their relationship and that he wished something
would happen to Miller so Weden would know how he
felt.
On 9 December 1993, the body of Miller was found
in her home. She had been shot twice in the head with
.38 caliber bullets. The .38 caliber bullets that
were taken from Miller’s body were consistent with
having been fired by a Colt .38 Detective Special.
Troy Hamlin (“Agent Hamlin”) and Dr. Joseph A.
DiZinno (“Dr. DiZinno”) were two of the witnesses
qualified by the court as experts. Agent Hamlin,
special agent with the North Carolina State Bureau of
Investigation, testified as an expert in the field of
hair examination and comparison. After conducting a
microscopic examination and comparison of the known
hair samples of Gunnarsson and the hairs found on
defendant’s trunk mat, Agent Hamlin testified that the
hairs were microscopically consistent and could have
originated from Gunnarsson.
Dr. DiZinno, an employee of the Federal Bureau of
Investigation, was qualified as an expert in the field
of hair examination and mtDNA analysis. Dr. DiZinno
has training in microscopic hair examination and has
performed mtDNA research and analysis. He is the
chief of DNA analysis unit number 2 where mtDNA tests
are conducted. He performed a DNA sequencing from one
of the hairs located on defendant’s trunk mat and
compared it to the mtDNA sequence obtained from a
known blood sample of Gunnarsson. Dr. DiZinno opined
that the DNA sequence from the hair and the DNA
sequence from the blood sample were identical. He
concluded that Gunnarsson could not be excluded as a
source of the hairs from defendant’s trunk mat.
State v. Underwood, 518 S.E.2d 231, 234-36 (N.C. Ct. App. 1999),
cert. denied as improvidently granted, 535 S.E.2d 33 (N.C.
2000).
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Of relevance to the issues on appeal, early in his opening
statement for the defense, Defense Counsel Whittle told the
jury:
Now, as has been said to y’all while you were
getting picked as jurors, this is a totally
circumstantial case. There aren’t any eyewitnesses to
any event. But there is an eyewitness who supposedly
saw someone after Mr. Gunnarsson’s body was found out
there in Deep Gap. Mr. LC Underwood was put in a
line-up and the individual sat there and looked at him
with six other guys: No, he isn’t the person I saw.
We have a confession by someone else who said he
killed Mr. Underwood [sic]. We have someone who saw
someone outside of Ms. Miller’s house at the time of
her murder, the Clerk of Court down there in Rowan
County, and a composite sketch was made. It was not
Mr. Underwood.
(J.A. 563). Next, in thirteen sentences, Defense Counsel
Whittle briefly recounted Underwood’s law enforcement career.
At the conclusion of such recounting, Defense Counsel Whittle
told the jury: “This is all stuff you’ll hear from the witness
stand.” (J.A. 564). The following court day, the State filed
motions in limine seeking (among other things) to bar defense
counsel from eliciting testimony about a purported confession by
a third party (Brandon Shelton) through the investigating
officers. The State represented that Shelton “got drunk” and
confessed to killing Gunnarsson, but later recanted the
confession, and argued that defense counsel could only introduce
evidence of the confession through Shelton during the
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presentation of the defense’s case. The trial court granted the
State’s motion.
The State took approximately three weeks to present its
case. During the State’s case, the defense drew out the
substance of the promised line-up and composite drawing evidence
during cross-examination of various witnesses, but was prevented
by the judge’s order from drawing out any evidence regarding the
alleged third-party confession to Gunnarsson’s murder. After
the State rested, the defense rested without presenting any
evidence which, under the North Carolina rules of criminal
procedure, entitled the defense to make the final closing
argument to the jury. The order of closing statements went
defense-State-defense. During the defense’s initial closing
statement, no mention was made of: (1) the “eyewitness who
supposedly saw someone after Mr. Gunnarsson’s body was found out
there in Deep Gap,” and failed to pick Underwood out of a
line-up; (2) the “confession by someone else who said he killed
Mr. [Gunnarsson]”; or (3) the composite sketch of a person who
did not resemble Underwood created from a description by the
Clerk of Court for Rowan County of the person he saw “outside of
Ms. Miller’s house at the time of her murder . . . .” (J.A.
563).
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At the beginning of the State’s closing statement, over
defense counsel’s objection, the State highlighted the defense’s
failure to present any evidence regarding these three matters.
In closing rebuttal statement, Defense Counsel Kaplan and
Defense Counsel Whittle each specifically addressed the line-up
and composite drawing evidence referred to during the defense’s
opening statement by pointing out to the jury that the defense
had drawn out the substance of such evidence during the
defense’s cross-examination of various State witnesses. And,
although Defense Counsel never specifically addressed the
confession issue during closing rebuttal statement, each
reminded the jury during such statement that the defense need
not present any evidence in the case, and Defense Counsel Kaplan
explained that the defense decided not to present any evidence
“because the State has not proven its case beyond a reasonable
doubt.” (J.A. 2767).
On July 21, 1997, the jury returned a unanimous verdict of
guilty as to the first-degree kidnapping and the first-degree
murder charges. Underwood was sentenced to life imprisonment
plus forty years. Underwood filed a direct appeal making
numerous claims of reversible error. In a published opinion,
the North Carolina Court of Appeals rejected all such claims,
holding that Underwood “received a fair trial, free from
prejudicial error.” State v. Underwood, 518 S.E.2d 231, 241
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(N.C. Ct. App. 1999). The North Carolina Supreme Court
ultimately denied Underwood’s request for certiorari review.
State v. Underwood, 535 S.E.2d 33 (N.C. 2000).
On October 4, 2001, Underwood filed a Motion for
Appropriate Relief (MAR) in state court, pursuant to North
Carolina General Statute § 15A-1415, arguing that he was
subjected to ineffective assistance of counsel by virtue of
numerous shortcomings of Defense Counsel, including “fail[ing]
to call key witnesses regarding prior statements they had given
and facts that were known about them that would have aided in
[his] defense.” (J.A. 255). Underwood complained in his MAR
that, “During opening arguments, defense counsel, Chester
Whittle told the jury we intended to call a person who was an
eyewitness who had observed a person coming out of the wooded
area at the approximate time the State claimed the victim was
killed. Unfortunately, this critical witness was not called on
Defendant’s behalf.” (J.A. 257). Underwood also complained
that Defense Counsel was ineffective for failing to call various
named witnesses, each of whom, according to Underwood, would
have testified in support of his theory that a man named Brandon
Shelton had truthfully confessed to Gunnarsson’s murder.
Notably, although Underwood alleged the content of the testimony
these potential witnesses might have given at his trial had they
been called by the defense, he failed to submit any evidence
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whatsoever to the MAR court in support of this claim as required
by North Carolina law. See N.C. Gen. Stat. § 15A-1420(b)(1) (“A
motion for appropriate relief made after the entry of judgment
must be supported by affidavit or other documentary evidence if
based upon the existence or occurrence of facts which are not
ascertainable from the records and any transcript of the case or
which are not within the knowledge of the judge who hears the
motion.”).
To prevail on a claim of ineffective assistance of counsel,
a defendant must show both that “counsel’s representation fell
below an objective standard of reasonableness,” Strickland v.
Washington, 466 U.S. 668, 688 (1984), and that there is a
“reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
id. at 694. The MAR court addressed and denied as without merit
all of Underwood’s claims of ineffective assistance of counsel
in summary fashion and without a hearing. Ultimately, the MAR
court denied Underwood’s MAR in toto, and the North Carolina
Court of Appeals denied Underwood’s petition for certiorari.
Underwood then filed his application for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254. Notably, subsection (d)
of § 2254 provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
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any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim--
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). 4
Of relevance to the present appeal, Underwood claimed in
his federal habeas petition that he was subjected to ineffective
assistance of counsel solely by virtue of Defense Counsel
Whittle having “promised” the jury in opening statement for the
defense to present, but then Defense Counsel never presenting,
exculpatory evidence regarding: (1) a line-up in which an
eyewitness did not identify him as the man she saw coming out of
the wooded area near where Gunnarsson’s body was found; (2) a
composite drawing of a man seen outside Miller’s house at the
time of her murder whom did not resemble him; and (3) a
third-party confession to Gunnarsson’s murder. 5 (J.A. 563).
4
Although § 2254 refers to a habeas “application,” we use
the word “petition” interchangeably with the word “application.”
5
Underwood attached to his supporting brief in favor of his
federal habeas petition statements taken by law enforcement
officers indicating that a man named Brandon Shelton told his
wife, Heather Shelton, and his friend Robbie Smith that he
killed Gunnarsson, because Gunnarsson had had an affair with his
(Continued)
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The State filed a combined answer and motion for summary
judgment. Because the MAR court rejected Underwood’s
ineffective assistance of counsel claims in summary fashion, the
district court was obliged to conduct an independent examination
of the record, but nonetheless apply § 2254(d)(1)’s deferential
standard of review in deciding whether to grant Underwood a writ
of habeas corpus. Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.
2000) (en banc). The district court acknowledged that Underwood
did not present to the MAR court a sworn statement by Shannon
Tedders, Robbie Smith, Brandon Shelton, nor Heather Shelton
regarding the substance of any potential testimony they could
have offered. The district court nonetheless held that it did
not need to consider the content of any statements by these
individuals “in order to determine whether defense counsel were
ineffective in failing to fulfill their promise to present
exculpatory evidence.” (J.A. 3023).
Ultimately, the district court granted Underwood a
conditional writ of habeas corpus, such that if the State did
wife, that Shannon Tedders could not identify Underwood as the
man she saw leaving the woods near her home on the alleged date
of Gunnarsson’s murder, and that Terry Osborne saw a man near
Catherine Miller’s home on the day she was murdered who was not
Underwood.
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not retry Underwood in 180 days, Underwood had to be set free. 6
Although acknowledging that the evidence mentioned in opening
statements may not have been actually exculpatory, and that
Underwood had failed to present such evidence to the state MAR
court, the district court held that defense counsels’ mere
“promise to present” such evidence and then failing to do so
amounted to constitutionally deficient performance which
prejudiced the defendant. J.A. 3023.
The State thereafter noted this timely appeal.
II
“A district court’s decision to grant habeas relief is
reviewed de novo.” Frazer v. South Carolina, 430 F.3d 696, 703
(4th Cir. 2005). Thus, we are, as was the district court,
obliged to conduct an independent examination of the record, but
nonetheless apply § 2254(d)’s deferential standard of review in
deciding whether Underwood is entitled to habeas relief. Bell,
236 F.3d at 158. Underwood’s current ineffective assistance of
counsel claim is based upon representations made during the
defense’s opening statement to the jury that the jury would hear
certain allegedly exculpating evidence, but then resting without
calling any witnesses in such regard and not addressing the
6
The district court stayed this order pending appeal.
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omissions in its initial closing statement. On appeal, the
State concedes that Underwood fairly presented the substance of
this claim in his MAR, and thus, we are not faced with
considering the merits of a procedural default defense. Thus,
the overarching issue in the present appeal is whether the MAR
court’s denial of Underwood’s current ineffective assistance of
counsel claim constitutes a decision that was contrary to, or
involved an unreasonable application of Strickland, 466 U.S. at
668, 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding,” 28 U.S.C § 2254(d)(2). See Sharpe
v. Bell, 593 F.3d 372, 382-84 (4th Cir. 2010) (analyzing
ineffective assistance of counsel claim under § 2254’s
deferential standard).
As previously stated, to prevail on a claim of ineffective
assistance of counsel under Strickland, a defendant must show
both that “counsel’s representation fell below an objective
standard of reasonableness,” id., 466 U.S. at 688, and that
there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different,” id. at 694. The first requirement is commonly
known in the relevant jurisprudence as Strickland’s deficient
performance prong, while the second is commonly known in the
relevant jurisprudence as Strickland’s prejudice prong. See,
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e.g., Wong v. Belmontes, 130 S. Ct. 383, 384 (2009). Having
independently examined the record, we hold the MAR court’s
denial of Underwood’s current ineffective assistance of counsel
claim did not constitute a decision that was contrary to, or
involved an unreasonable application of Strickland, nor was
“based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” 28 U.S.C
§ 2254(d)(2).
A
With respect to the line-up evidence referred to during the
defense’s opening statement, Underwood cannot establish
Strickland’s deficient performance prong. First, Defense
Counsel Kaplan elicited the substance of this evidence during
his cross-examination of Watauga County Deputy Sheriff Paula
Townsend, who was the lead investigator in the Watauga County
case concerning the murder of Gunnarsson. During such
cross-examination, Deputy Sheriff Townsend either admitted or
directly stated that: (1) on or about January 11, 1994, she
interviewed a person who lived in the vicinity of where
Gunnarsson’s body was found; (2) as a result of such interview,
an order was obtained to have Underwood be part of a line-up;
(3) the line-up included Underwood and five other men with
similar physical characteristics to Underwood and who were
identically dressed in slacks and a military green colored
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jacket; (4) the men in the line-up were asked to wear a military
green colored jacket, because the line-up witness had told her
and other investigators that “the person she saw had a jacket
that same color” and investigators “had seized jackets that same
color from the defendant’s residence,” (J.A. 1571); (5) she was
present during the line-up; (6) the men in the line-up were
asked to look one way and then the other way for the witness’s
viewing; (7) the witness was given all the time she needed to
look at the men in the line-up; and (8) the witness did not
identify anyone in the line-up. The elicitation of this
testimony on cross-examination was consistent with Defense
Counsel Whittle’s reference to the eyewitness near Deep Gap who
failed to identify Underwood and one-hundred percent fulfilled
Defense Counsel Whittle’s promise during opening statement that
the jury would “hear” about “all [this] stuff . . . from the
witness stand.” (J.A. 564). Second, during closing rebuttal
statement, Defense Counsel Kaplan and Defense Counsel Whittle
each specifically addressed the line-up evidence by pointing out
to the jury that the defense had drawn out the substance of such
evidence on cross-examination. Third, Defense Counsel Whittle
and Defense Counsel Kaplan each reminded the jury during such
statement that the defense need not present any evidence in the
case, and Defense Counsel Kaplan explained that the defense
decided not to present any evidence “because the State has not
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proven its case beyond a reasonable doubt.” (J.A. 2767). In
light of all these circumstances, Defense Counsel’s handling of
the promised line-up evidence did not fall outside the wide
range of professionally competent assistance, and thus,
Strickland’s deficient performance prong is not met. 466 U.S.
at 690.
B
With respect to the composite drawing evidence promised
during the defense’s opening statement, Underwood cannot
establish Strickland’s deficient performance prong. First,
Defense Counsel Whittle elicited the substance of such evidence
during his cross-examination of North Carolina State Bureau of
Investigation Special Agent Don Gale and Rowan County Deputy
Sheriff Terry Anger. Special Agent Gale assisted the Rowan
County Sheriff’s Department with its investigation into the
murders of Miller and Gunnarsson. During cross-examination,
Special Agent Gale either admitted or directly stated that: (1)
a composite drawing was made in connection with the Miller case;
(2) Terry Osborne provided the information for the composite
drawing; (3) at the time Terry Osborne provided such
information, he was a high school teacher; (4) by the time of
Underwood’s trial, Terry Osborne was the Clerk of Court for
Rowan County; (5) the composite drawing was determined by the
investigators to be someone who they “were considering a witness
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at that time or a potential witness at that time,”; and (6) to
his knowledge, Terry Osborne never identified Underwood as the
person in the composite drawing. (J.A. 2107). Deputy Sheriff
Anger was the lead investigator for the Rowan County Sheriff’s
Department concerning the murders of Miller and Gunnarsson.
During cross-examination, Deputy Sheriff Anger either admitted
or stated that a composite drawing was made to locate a
potential witness in connection with Miller’s murder and the
person in the composite was never identified. As was the case
with the line-up evidence, these elicitations on cross-
examination one-hundred percent fulfilled Defense Counsel
Whittle’s promise during opening statement that the jury would
“hear” about “all [this] stuff . . . from the witness stand.”
(J.A. 564). Second, Defense Counsel Kaplan and Defense Counsel
Whittle each specifically addressed the composite drawing
evidence during the defense’s closing rebuttal statement by
pointing out to the jury that the defense had drawn out the
substance of such evidence on cross-examination. Third, Defense
Counsel Whittle and Defense Counsel Kaplan each reminded the
jury during such statement that the defense need not present any
evidence in the case, and Defense Counsel Kaplan explained that
the defense decided not to present any evidence “because the
State has not proven its case beyond a reasonable doubt.” (J.A.
2767). As was the case with the line-up evidence, in light of
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all these circumstances, Defense Counsel’s handling of the
composite drawing evidence did not fall outside the wide range
of professionally competent assistance, and thus, Strickland’s
deficient performance prong is not met. 466 U.S. at 690.
C
Lastly, we consider Underwood’s ineffective assistance of
counsel claim with respect to the evidence of a third-party
confession. At the outset, we emphasize this claim’s narrow
scope on federal habeas review, given the state of the
evidentiary record before the MAR court. Underwood presented no
evidence to the MAR court regarding a third-party confession,
and, thus, we are precluded from considering the potential
evidence that Underwood presented on the subject in support of
his federal habeas petition. See Bell, 236 F.3d at 171 n.13
(affidavit not presented to state habeas court cannot be
considered on federal habeas review); N.C. Gen. State. § 15A-
1420(b)(1) (“A motion for appropriate relief made after the
entry of judgment must be supported by affidavit or other
documentary evidence if based upon the existence or occurrence
of facts which are not ascertainable from the records and any
transcript of the case or which are not within the knowledge of
the judge who hears the motion.”). Accordingly, on federal
habeas review, we focus solely upon Defense Counsel Whittle’s
act of telling the jury that someone else had confessed to
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killing Gunnarsson (although he mistakenly referred to the
victim as Underwood) and then resting the case without
presenting any such evidence or mentioning it in their closing
statement.
For purposes of our analysis, we will assume, without
deciding, that deficient performance occurred. Rather, after
independently reviewing the record, we hold that Strickland’s
prejudice prong is not satisfied, because there is no reasonable
probability that, had defense counsel not brought up the
confession to the jury during opening statements, the outcome of
Underwood’s trial would have been different. 466 U.S. at 694.
In other words, there is not a reasonable probability that,
absent the assumed unprofessional error, “the [jury] would have
had a reasonable doubt respecting [Underwood’s] guilt.” Id. at
695. A review of how the trial unfolded makes this conclusion
inescapable.
Over the course of approximately three weeks, the State
methodically built its case against Underwood by placing before
the jury abundant motive and physical evidence supporting its
theory that Underwood murdered both Gunnarson and Miller. With
respect to motive, the State presented an abundance of evidence
establishing that Underwood 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. In addition to
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evidence establishing that Underwood sent Weden letters
threatening her physical safety during their tumultuous
on-again, off-again relationship, the evidence established that
Underwood harbored raging jealousy against anyone whom he
believed stood in the way of his ability to have a romantic
relationship with Weden, including Gunnarsson and Weden’s
mother, Catherine Miller.
For example, late at night on the same night that
Gunnarsson had last been seen alive, Underwood, while on his own
date with a different woman, stalked Weden and Gunnarsson in
order to learn of Gunnarsson’s identity. Underwood indeed
learned of Gunnarsson’s identity that very night via a license
plate check that he had performed on Gunnarsson’s vehicle by a
law enforcement buddy. And although Underwood had learned of
Gunnarsson’s identity on the night of December 3, 1993, he
falsely told Rowan County Deputy Sheriff Terry Anger twelve days
later that he had never heard of Gunnarsson. The evidence also
showed that Underwood had ready access to Gunnarsson’s address
in Underwood’s own copy of the Salisbury phonebook.
For a second example of Underwood’s raging jealousy,
approximately two weeks prior to Gunnarsson’s murder, Underwood
had confronted Weden and her date for the evening, David Sumner,
at a local restaurant. Underwood put his hands on the table and
started asking Weden why she had been lying to him. Weden
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denied lying about anything and told Underwood that he needed to
leave. At that point, Underwood threatened to kill David Sumner
if he did not sit still. Weden again asked Underwood to leave.
At that point, Underwood picked up a glass of tea off of the
table, dumped it in Weden’s lap, and walked outside. Once
outside, Underwood told the male friend who had accompanied him
to the restaurant that he wanted to wait for Weden and her date
to exit the restaurant so that he could “hurt [the date] some
way or beat him up on the ground or pavement out there.” (J.A.
1743). The manager of the restaurant called the police. Once
the police officers arrived, they escorted Weden and her date to
Weden’s car. Despite knowing that he had caused such a scene
that the police had been called, Underwood (with his friend in
the car) surreptitiously followed Weden and her date back to
Weden’s house. After parking nearby in view of Weden’s house,
Underwood remained very agitated and angry for approximately
thirty minutes, after which time, Underwood’s friend who was in
the car was able to talk Underwood into driving back to
Underwood’s residence.
For a third example of Underwood’s raging jealousy,
Underwood told his buddy Rex Allen Keller on two separate
occasions that Weden’s mother was “a bitch,” because she had
interfered with his relationship with Weden to the extent that
Miller “was the reason they couldn’t get along.” (J.A. 1862).
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During the entire summer of 1993, Underwood also successfully
persuaded Keller to make between eight and ten anonymous
threatening telephone calls to Weden falsely telling her that
her son owed him money for drugs, simply for the purpose of
harassing her.
The physical evidence obtained by law enforcement
overwhelmingly tied Underwood to Gunnarsson’s murder. This
evidence showed that Gunnarsson had been shot twice in the head
with .22 caliber bullets and that Miller had been shot twice in
the head with .38 caliber bullets. Underwood possessed a .22
caliber rifle, which a ballistics expert testified could have
fired the bullets recovered from Gunnarsson. Moreover, he was
issued a .38 caliber Colt Detective Special while formerly
serving as a deputy sheriff for Lincoln County. While the
inventory records for the Lincoln County Sheriff’s Office showed
that Underwood had turned in the .38 caliber weapon, the actual
weapon could not be located. Also, several witnesses testified
that they had seen Underwood in possession of a .38 caliber
weapon just prior to the December 1993 murders of Gunnarsson and
Miller. The .38 caliber bullets taken from Miller’s body were
consistent with having been fired by a .38 caliber Colt
Detective Special.
An expert in the field of fiber and textile identification
testified that his comparison of electrical tape found near
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Gunnarsson’s body with electrical tape removed from a water line
behind Underwood’s washing machine at his home revealed the two
pieces were consistent in width, thickness, surface texture, and
composition of the adhesive. The expert opined that both pieces
of tape could have originated from the same roll.
In December 1993 or January 1994, around the same time as
the murders, Underwood took his Monte Carlo to a car wash and
had it thoroughly cleaned, including having the carpet in the
trunk shampooed. The timing and extent of the requested
cleaning, especially shampooing the trunk, strongly suggested
that Underwood was attempting to eliminate evidence of
Gunnarsson’s murder. Even with such thorough cleaning, when
investigators searched the Monte Carlo on February 1, 1994,
“scratches were observed inside the trunk compartment and a mark
that resembled a footprint was seen on the underside of the
trunk lid.” Underwood, 518 S.E.2d at 235. This evidence
strongly suggested that a person had been closed in the trunk
against his will. And, by far, the most damaging evidence
against Underwood consisted of the following: (1) expert
witness testimony establishing that the hairs found in the trunk
of Underwood’s Monte Carlo had the identical microscopic
characteristics as a known sample of Gunnarsson’s hair and had
the same mitochondrial DNA sequencing as a known blood sample of
Gunnarsson; and (2) expert witness testimony establishing that
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although it is possible for two people to “have the same
microscopic characteristics in their hair and the same
mitochondrial DNA sequence,” such combination “would be highly
unlikely,” (J.A. 2540).
Notwithstanding this overwhelming evidence, gleaned from
numerous and varied sources, that Underwood stalked, kidnapped,
and murdered Gunnarsson because he was dating Weden, Underwood
now asserts that defense counsel’s single reference during
opening arguments to a confession by someone else was so
prejudicial that there is a reasonable probability that the
omission of the remark would have resulted in a different
verdict in this case. We are unpersuaded.
Because the State’s case against Underwood was so
overwhelming, Defense Counsel had little choice but to attempt
to chip away at it, which they attempted to do, in particular,
by developing and emphasizing the line-up and composite evidence
through the State’s witnesses. The reference to the third-party
confession was made in conjunction with similar references to
the line-up and composite sketch evidence during opening
statements, and it appears that defense counsel’s likely
intention at the time was to elicit from the investigating
officers, during cross-examination, the fact that Shelton had
confessed to various family members and friends that he had
killed Gunnarsson. Full realization of this strategy was
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thwarted by the State’s subsequent motion in limine, granted by
the trial judge. Nevertheless, Underwood cannot overcome the
fact that, when all was said and done, the State’s case against
him was iron-clad and overwhelming, 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. Strickland, 466
U.S. at 694.
Accordingly, we hold the MAR court’s rejection of
Underwood’s ineffective-assistance-of-counsel claim as it
pertained to the unfulfilled promise in opening statement for
the defense of a third-party confession was not contrary to or
an unreasonable application of the law clearly established in
Strickland. See Smith v. Spisak, 130 S. Ct. 676, 685-86 (2010)
(assuming without deciding that habeas petitioner was correct
that Strickland’s deficient performance prong was satisfied, but
holding Ohio Supreme Court’s rejection of his ineffective-
assistance-of-counsel claim was not contrary to or an
unreasonable application of the law clearly established in
Strickland, because Strickland’s prejudice prong not satisfied).
Nor was it “based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding,” 28 U.S.C § 2254(d)(2).
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III
Because the MAR court’s denial of Underwood’s current
ineffective assistance of counsel claim as outlined in this
opinion survives the deferential review that we owe such denial
under 28 U.S.C. § 2254(d), we reverse the district court’s grant
of habeas relief in this case.
REVERSED
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