A Suspect in the Miller Murder

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A Suspect in the Miller Murder

During the investigation into the death of Catherine Miller, investigators developed a witness who had observed a man near the residence just prior to the murder. A composite sketch of the suspect was distributed to the local newspaper.

Terry Osborne who was the Clerk of Court of Rowan County, North Carolina in December 1993 came forward with information concerning the death of Catherine Miller.

Osborne told investigators that at approximately 5:30 p.m. on the day Miller was killed, he was returning from work when he observed a white male subject walking briskly across the yard at a residence beside Miller’s house. Osborne told police the subject was a white male, 6’ to 6’2” tall, slender build with long hair, wearing a top coat with the collar turned up, no hat or cap and the subject was “baby faced”. He was late teens to early 20’s. He also told investigators that he observed a dark colored Monte Carlo parked on the left side of the roadway near Miller’s residence. Osborne observed the subject for approximately thirty seconds. He told police that the subject’s walk was brisk and “springy” like that of a young person.

Osborne said that he was shown photos of a number of persons but did not believe any of them was L.C. Underwood. Osborne later told police that since he saw photos of L. C. Underwood in the newspapers he was sure that the person he saw near Miller’s residence just prior to her death was not L.C. Underwood.

Osborne stated that he gave the information to the police that led to the composite sketch of the suspect that was published in the Salisbury Post on December 13, 1993 (Exhibit P, Interview of Terry Osborne).

One week after the murder, Osborne observed the same subject and the same car he had observed near Miller’s residence just prior to the murder. He was also able to get a tag number of the car he saw which was NC registration BLM-258. Osborne said he gave this information to police (Exhibit Q, Interview of Terry Osborne).

Investigators were well aware that the tag number on my burgundy Monte Carlo in December 1993 was NC registration ANN-5658. Osborne furnished this information to S.B.I. Agent Don Gale. However, Gale never followed up on the information. Gale never attempted to locate this person or interview him. Investigators never conducted a search of this suspect’s vehicle for evidence such as blood, hair or fibers. A line up was never conducted to see if Osborne could pick this suspect out as the person he had observed near Miller’s residence just prior to the murder. This suspect was never located or fingerprinted to see if his prints matched the unidentified prints found in Miller’s residence. Investigators never determined if this person was connected to Kay or Jason Weden in any way. This evidence was just ignored by investigators.

On January 5, 1994, Agent Don Gale of the S.B.I., along with lead Detective Terry Agner of the Rowan County Sheriff’s Office, served a Nontestimonial Identification Order on me. This was done so they could obtain fingerprints and hair samples from me for comparison purposes with possible hair and fingerprint evidence in the Gunnarsson and Miller homicide investigations.

In his sworn affidavit on January 5, 1994 which he used to obtain the Nontestimonial Identification Order, Don Gale stated the following: “A composite has been created of a person seen outside the home of the victim just prior to her death. It is the opinion of several of the investigators that Mr. Underwood resembles the composite of the “suspect” (Exhibit R, Nontestimonial Identification Order, Pg. 2, Paragraph 3) (Exhibit S, Composite sketch of suspect).

Agent Gale had known me for many years and so had Detective Agner, as a fellow law enforcement officer in Rowan County. Both absolutely knew that neither the composite drawing of the suspect nor the physical description matched me in any way.

At a hearing in my case in November 1996, evidence was presented that confirmed the composite drawing of the suspect did not match me and was in fact not me.

Detective Agner testified at the hearing that another officer was actually involved with the development of the composite drawing of the person who was seen in the vicinity of the Miller residence, at the approximate time he felt the murder was committed, and who he felt was involved in the crime (TP. 172, 404(b) hearing).

Agner testified that he had seen the composite and Terry Osborne had given the information for the composite drawing (TP. 172-173, 404(b) hearing). Agner was asked if he had seen the picture and he clearly testified that he had and that it was his opinion the composite drawing did not look like me (TP. 173, 404(b) hearing). Agner also testified under oath that he had known me for several years and he had never known me to have had long hair (TP. 173, 404(b) hearing). Agner was asked a second time if it was still his opinion from seeing the picture, did the picture resemble me. Agner testified the composite of the suspect did not look like me and was in fact not me (TP. 173, 404(b) hearing).

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Detective Agner Changes his Testimony at Trial

At trial, Agner was asked if at any time did anyone to his knowledge ever identify the composite drawing as being L.C. Underwood and he answered “no” (Volume IV, TP. 1537-1538). Agner is also asked again did he know if the composite was made to identify or attempt to identify a “suspect” (Volume IV, TP. 1538). Agner now testified that they were attempting to locate a “potential witness” (Volume IV, TP. 1538).

Testimony of Agent Don Gale

At trial, Agent Gale changed his sworn testimony under oath from the Nontestimonial Identification Order and lied under oath. Agent Gale was asked who had provided the information for the composite drawing in the case in connection with Catherine Miller’s murder and was he familiar with it (Volume III, TP. 1030). Gale testified that the Clerk of Court in Rowan County, Terry Osborne was the person who provided the information for the composite drawing (Volume III, TP. 1030). Gale was asked if the composite drawing was of a “suspect”. He testified “the composite was determined by us to be someone who we were considering a witness at the time, or a potential witness at the time” (Volume III, TP. 1030). Gale clearly testified under oath the composite was never depicted as a “suspect”, no sir (Volume III, TP. 1030). The affidavit that Agent Gale swore to and signed to obtain the Nontestimonial Identification Order for my fingerprints and hair samples in the Miller case clearly showed he lied under oath.

On cross examination by defense counsel Chester Whittle, Gale was asked did he not apply for a Nontestimonial Identification Order for my hair and fingerprint samples in the Miller case and he said he did (Volume III, TP. 1032). Gale was then asked if he did not swear and attest to the wording that was in the court order affidavit and again he said, yes (Volume III, TP. 1032). Gale then testified that he had not seen the court order, yet he did admit that his name D.A. Gale was signed on the affidavit and the signature was in fact his (Volume III, TP. 1033) (Exhibit R, Nontestimonial Identification Order, Pg. 2).

Defense attorney Chester Whittle told the jury during opening arguments that we had an eyewitness who saw someone near Miller’s home at the time of the murder. Osborne would testify that the person he observed that investigators felt was involved in the murder was not me (TP. 1117). Unfortunately, defense counsel never called Osborne to testify in my defense as to what he had observed the day Miller was killed, even though he was listed as a defense witness (Exhibit T, Witness List).

The jury never heard that Agner changed his sworn testimony about the composite drawing at trial and testified the composite drawing was now of a witness.

The jury never saw the composite drawing so they could determine if the drawing resembled me.

The jury never saw a copy of Agent Gale’s sworn court order affidavit of January 5, 1994 where he swore under oath that the composite drawing was of a suspect and that it was the opinion of several of the investigators the composite drawing resembled me. [The court order affidavit and the composite drawing can be seen at the end of the story (Exhibit R, Nontestimonial Identification Order, Pg. 2, paragraph 3)] (Exhibit S, Composite Drawing of Suspect in Miller Case).

I have often wondered who these other investigators were that were of the same opinion that the composite sketch resembled me, as Agent Gale swore to under oath in his court order affidavit (Exhibit R, Nontestimonial Identification Order, pg. 2, paragraph 3). I found it strange that Detective Agner, the lead investigator in the Miller case, who worked with Gale on the investigation, was not of the same opinion.

The jury never heard how it would be possible that a composite drawing of a “suspect” that Agent Gale swore looked like me in his court order affidavit on January 5, 1994 could change to a “witness” and was never depicted as a “suspect” at trial when it was the same composite.

But one fact is certain. The District Attorney reminded the jury during closing arguments that we did not present the evidence we said we would when the defense attorneys addressed the jury during opening arguments (TP. 17-19).

If my situation were not so desperate I would laugh at a statement the District Attorney Tom Rusher made in his response to my motion for appropriate relief that was filed in my case. He stated that he objected to the unprofessional, inappropriate, demeaning and misguided language that was used to point out the court that two officers lied under oath and that I was not in a position to know who was a liar or not. I never called anyone a liar. I just pointed out the established evidence that does exist that has been presented to you, the reader of my story, to prove a fact. I will allow you to be the judge as to whether these two officers lied under oath and committed perjury concerning the composite drawing.

The District Attorney Tom Rusher, the prosecutor in my case called me a murderer and said the evidence was overwhelming against me. I have presented the same evidence in my story that he presented to the jury at my trial. I have presented facts and documented evidence that the jury never heard nor saw that both of my defense attorneys knew existed prior to and during trial, that I know in my heart would have made a difference in the jury’s deliberation on my guilt or innocence if they had only had the information.

I have presented facts and evidence that the state appellate courts, if they had been made aware on appeal, I know would have made a difference in their decision on whether or not to have granted me a new trial.

Unfortunately for me, neither the jury nor the appellate courts ever received all the facts that my defense and appellate attorneys knew existed when trial and appeal decisions were made in my case.

However, there are certain things I do believe about these two murder cases.

First, I know in my heart and will go to my grave always believing that some one planted those seventeen hairs on that trunk mat.

Second, as a former police officer, I know that trace evidence such as hairs did not lay on a trunk mat for almost two years, which was searched repeatedly by a trained scientist and missed time after time and then just be casually observed.

Third, I know that Gunnarsson was never in the trunk of my car or anywhere near my car.

Fourth, I know that two of the main investigators lied in my case and committed perjury and the District Attorney Tom Rusher knows this to be a fact, but never brought charges against these officers and never will.

The District Attorney Tom Rusher of Boone, North Carolina who prosecuted this case, was interviewed concerning the State Supreme Court decision to review my case in 2000. Rusher would not respond when asked by a reporter if he truly thought I was guilty (Mountain Times News, May 2000).

Yet, he has repeatedly called me a murderer and stated the evidence against me was overwhelming in court documents he has filed in attempts to prevent me from gaining a new trial.

Also, at trial Tom Rusher called the evidence against me overwhelming in the murders of Gunnarsson and Miller. However, he also told the jury during closing arguments that the hair evidence was all the state had that connected me to Gunnarsson’s death. Mr. Rusher stated to the jury that I had come within a hair of getting away with murder (closing argument by District Attorney Tom Rusher, pg. 42). Also, going on ten years after the Miller murder, I have never been charged in Miller’s death. If the evidence was so overwhelming against me in Miller’s death, why have I never been charged? I have yet to see what this overwhelming evidence is in either one of these murders.

Now you the reader of my story can judge my guilt or innocence. You determine if you agree with the District Attorney that the evidence was overwhelming against me. I hope that you will at least give me some measure of justice I seek in this case. Justice I was denied at trial by two defense attorneys that had never tried a capital murder case before and who never started to review the evidence against me until eleven days before the trial started even though they had almost two years to prepare a defense and review the evidence while I sat in jail.

Verdicts by a jury in our criminal justice system are based on the evidence presented by the state and the defense at trial. Only one side of this story has ever been presented which was the state’s version of events, their theories and the testimonies from their witnesses.

Seasoned defense attorneys say that it cost between $750,000 and $1 million to successfully defend a capital murder case. My defense attorneys earned less than $100,000 each for their efforts.

When defense attorneys present no defense and no evidence and never call any witnesses on a client’s behalf, the state’s case goes undisputed and the verdict by a jury is a foregone conclusion.

My defense attorneys Bruce Kaplan and Chester Whittle, Jr. told my family and me they felt the state’s case was so weak they were convinced I would be acquitted without the benefit of a defense. I have wondered everyday for going on eight years that I have been in jail or prison if either of my defense attorneys still feel the same way and if they had another chance would they do things differently. I have also wondered why they never called one of the twenty-two witnesses they had listed to testify for me. These witnesses could have destroyed the state’s case against me and the testimony of many of the state’s witnesses. Why my defense attorneys never called any witnesses or presented a defense for me still remains a mystery to me (Exhibit T, Witness List).

Surprisingly, my defense attorneys Bruce Kaplan and Chester Whittle, Jr. of Boone, North Carolina have never admitted any mistakes. In fact, when I wrote my former lead defense attorney Bruce Kaplan and pointed our the same facts and evidence I have presented in this story and questioned his trial strategy and raised questions about the evidence in this case, he did respond to my letter. In his letter to me dated February 8, 2000, Kaplan told me he did not believe it would be beneficial to him or to me to attempt to respond to the questions I raised in my letter to him about this case. He closed by saying that there was no point now in rehashing what could have been done differently and that he was sorry if I did not agree with the decisions he made at trial (Exhibit U, Letter from Bruce Kaplan).

Defense attorney Chester Whittle, Jr. has never said one way or the other if he made mistakes at my trial. He has never responded to any of my letters where I questioned his trial strategy.

My appellate attorneys Thomas King and David Bingham of Salisbury, North Carolina have never admitted any mistakes during my appeal. After King wrote my appeal brief to the North Carolina Supreme Court, he quit as my attorney without any advance notice and took a job as an Assistant District Attorney in Salisbury, North Carolina.

Bingham promised to help me find a federal appeal specialist to take my case into federal court after the North Carolina Supreme Court denied my appeal. However, he never kept his promise to help me find another attorney even though he claimed my cause was a just one and I should continue to fight my conviction. The last contact I had with Bingham was when he sent me another $8,000 bill for his services, which I paid.

You can be the judge now if you think I had a proper defense, effective trial counsel and appellate counsel during my state appeal. Would you have wanted these attorneys defending you?

I have a new attorney now. His name is Mr. Gordon Widenhouse, Jr. of Chapel Hill, North Carolina. He is with the firm of Rudolf, Maher, Widenhouse and Fialko. Mr. Widenhouse is a federal appeal specialist who is trying to help me get back into court. Mr. Widenhouse is very intelligent and the firm he is with has an excellent success rate. Whether or not he can undo the mess that others have made out of this case remains to be seen. I trust Mr. Widenhouse completely and have a great deal of respect for him and in his ability. I hope that he will be able to find some justice for me that I seek in federal court, justice I was denied in state courts.

I have given you the reader the evidence and the facts of these cases concerning the deaths of Viktor Gunnarsson and Catherine Miller. I do issue the following challenge to the police investigators, Detective Paula Townsend of the Watauga County Sheriff’s Office, Detective Terry Agner of the Rowan County Sheriff’s Office and especially State Bureau of Investigation Agent Don Gale. I challenge any of these people to step forward to disprove any of the facts or evidence I have presented in this story. I seriously doubt any of them will take me up on my challenge. These people have what they wanted. They have me in prison and my life was destroyed.

After my conviction in the death of Viktor Gunnarsson, the state at the urging of the District Attorney Tom Rusher and Detective Paula Townsend filed papers to seize my home and all my property. The District Attorney said that the reason behind the seizure was to try and recover the money that was spent on these investigations. However, not once in any other murder case that Rusher has prosecuted has be ever taken these same steps to seize a defendants home or property after their conviction, unless it was a drug related crime which was not in the state’s theory as to the reason for either murder.

I also challenge Mr. Rusher to dispute this fact, or to present any evidence to dispute or contradict the evidence I have presented in my story. He can’t and he knows it.

I also have found it strange that in all of the news stories that were written about my trial, why not one newspaper reporter from any newspaper, especially the Salisbury Post, has ever asked to speak to me about my side of this story. I have written the Salisbury Post newspaper numerous times asking them to send a reporter to do a story on my side of this case and to listen to what I have to say. So far all of my letters have been ignored. Maybe the Salisbury Post and other newspapers I have written over the years feel the truth does not sell newspapers. Since these cases did gain international attention, one would think that some newspaper would be fair enough to at least give me an opportunity to tell my side of this story and present evidence in my defense, evidence that my defense attorneys chose not to present at trial. I hope that one of the readers of my story now will step up and ask someone at the Salisbury Post why they chose to print only one side of this story, the state’s side.

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