Shirley Scott & the 404(b) Hearing

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Shirley Scott & the 404(b) Hearing

The state called a witness named Shirley Scott to testify concerning the events she claimed took place on the evening of December 3, 1993. Ms. Scott also was called to testify by the state at a 404(b) hearing that was held on November 25 and 26, 1996, seven months before I went on trial for my life in the death of Viktor Gunnarsson.

Scott testified at the 404(b) hearing in November 1996 that on the evening of December 3, 1993, she drove to my residence in Salisbury, North Carolina because we had a date and had planned to go to the movies [404(b) hearing, TP. 253].

Scott testified at this hearing that she asked me where my ex-girlfriend Kay Weden lived and asked me to show her Weden’s residence. I gave her directions to Weden’s home [404(b) hearing, TP. 253]. Scott testified that she drove to Weden’s home and pulled into the driveway. She never observed or saw me write down a tag number off any of the cars parked in the driveway at Weden’s residence [404(b) hearing, TP. 255]. She also testified that after leaving Weden’s residence she drove me back to my residence where I made a telephone call to a man named Mike. Scott said she did not hear the conversation and never heard me mention the name Viktor Gunnarsson while talking on the telephone, nor did I mention the name Viktor Gunnarsson to her that night [404(b) hearing, TPP. 256-257]. She also stated that I did not write his name down that night [404(b) hearing, TPP. 257-258].

Finally, at the 404(b) hearing, Scott testified that after arriving back at my residence at approximately 11:00 p.m. on December 3, 1993, she stayed a short time, leaving my residence at 11:20 p.m. and arriving home at 11:40 p.m. She was positive of the times because she looked at her watch before leaving my residence and again when she arrived home [404(b) hearing, TPP. 257-258].

Ms. Scott had been previously interviewed on February 16, 1994 by Special Agent D. S. Wilson of the S.B.I. and Detective Paula Townsend of the Watauga County Sheriff’s Office, which was over two and one half years before she testified at the 404(b) hearing in November 1996. During this interview she confirmed her later sworn testimony at the 404(b) hearing concerning the events of December 3, 1993. Scott also told investigators that she was positive that she had left my residence on the evening of December 3, 1993 at 11:20 p.m. and that she arrived home at 11:40 p.m. (Scott’s statement dated February 16, 1994, page 6, paragraph 2).

Rick Hillard testified under oath at the 404(b) hearing and at trial that he did in fact receive a telephone call from me at 11:30 p.m. on December 3, 1993 and he returned my call at 11:40 p.m. [404(b) hearing, TP. 18-19] (Volume I, TP. 56).

There was a fatal error in Ms. Scott’s testimony at the 404(b) hearing that defense counsel failed to point out to the court. Based on her own sworn testimony, it would have been impossible for Scott to have known anything about the call I made to Rick Hillard of the evening of December 3, 1993.

Rick Hillard had testified at the 404(b) hearing that I did call him at 11:30 p.m. on the night of December 3, 1993 and he returned my call at 11:40 p.m. [404(b) hearing, TP. 18-19].

If Ms. Scott left my residence at 11:20 p.m. on December 3, 1993 and she arrived home at 11:40 p.m., she was not at my home when I placed the call to Mr. Hillard at 11:30 p.m. and she was already at her home when Hillard returned my call at 11:40 p.m. [404(b) Hearing, TPP. 257-258].

Shirley Scott Changes her Testimony at Trial

Seven months after the 404(b) hearing was held in November 1996, Shirley Scott was called to testify at my trial by District Attorney Tom Rusher. This was concerning the events that had taken place involving myself and Scott on the evening of December 3, 1993.

At trial, Scott now testified that on the evening of December 3, 1993 she drove to my residence in Salisbury, North Carolina because we had a date to go out to eat (Volume I, TP 10-11). She had previously testified seven months earlier that on the night of December 3, 1993, we had planned to go and had gone to the movies [404(b) hearing, TP 253].

At trial, Scott now testified that after dinner at Irvins Restaurant in Salisbury, North Carolina, I asked her to drive me by my ex-girlfriend, Kay Weden’s residence and gave her directions. She now told the jury that upon arriving at Weden’s residence, she pulled into the driveway and that I had written down a tag number off one of the cars parked in Weden’s driveway (Volume I, TP. 18-19).

At trial, Scott now testified that after arriving back at my residence at approximately 11:00 p.m. on December 3, 1993, I placed a telephone call to a man named Rick. She further testified that while I was speaking on the telephone, I wrote down the name Viktor Gunnarsson. She said she also heard me repeat the name Gunnarsson during my telephone conversation (Volume I, TPP. 20-21).

At trial, Scott now testified that she did not leave my residence until forty-five minutes to an hour after I received a call back from a man named Rick (Volume I, TP. 45).

My defense counsel never pointed out the major discrepancy to the jury at trial, nor did they cross examine Scott about her prior sworn testimony at the November 1996 404(b) hearing. They also did not show that she had completely changed her sworn testimony about the events of December 3, 1993 in just seven months.

Questions Left Unanswered

	Why did Kay Weden lie under oath when she testified that I had called her “prior to December 3, 1993” to tell her I had observed her, her mother and Gunnarsson out eating at the Blue Bay Restaurant on December 3, 1993, an even that had not yet taken place?
	Why did Shirley Scott completely change her sworn testimony from the 404(b) hearing to what she testified to just seven months later at trial concerning the evening we spent together on December 3, 1993?
	Did the District Attorney have Shirley Scott change her sworn testimony from the 404(b) hearing to what she testified to just seven months later at trial?

I truly wonder if I will ever get another chance to get these answers. Based only on circumstantial evidence which was never challenged by my defense attorneys, prosecutors claimed I kidnapped Gunnarsson in the early morning hours of December 4, 1993, forced him nude into the trunk of my 1979 Monte Carlo, drove him more than 109 miles away to Watauga County and marched him or carried him into the woods off the Blue Ridge Parkway, shot him twice in the head and neck and left his nude body in the hollow of a fallen tree.

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