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Witherow convicted on 3 counts
In April shooting of his wife
Friday, April 11, 2014
By SAM JACKSON - Bulletin Staff Writer
A retired Martinsville police officer was convicted Thursday of shooting his wife during an argument last April, and a jury recommended a prison sentence totaling 10 years.
James Scott “Scotty” Witherow II, 72, of 701 Corn Tassel Trail, Martinsville, was convicted on one count each of aggravated malicious wounding, use of firearm in commission of a felony and discharge a firearm in an occupied dwelling. Witherow pleaded not guilty to each charge.
The charges stemmed from an incident on April 14, 2013, in which Witherow’s wife, Marleen S. Carter, was shot during an argument in the couple’s home.
After a two-day trial, the jury deliberated for just more than an hour before delivering the guilty verdicts.
Defense attorney John W. Swezey said each side offered a different view of the events of April 14.
“This was a he-said, she-said case,” he said. “They (jurors) accepted the version the wife gave.”
Martinsville Circuit Court Judge G. Carter Greer called for a brief recess before testimony was given by Witherow’s daughter, Debra, before the jury’s sentencing recommendation.
Debra Witherow testified that her father suffers from heart disease and diabetes, and “he has episodes where he gets very confused,” for which he previously had sought emergency medical attention. She suggested the incident in which he shot Carter, his third wife, was the result of one such episode.
Debra Witherow said she lost contact with her father for much of her life, but she has spent the past year taking care of him because his ailments make him unable to care for himself. She said caring for him had helped her develop a better relationship with both her father and Carter.
“Marleen was his third wife,” she said. “I had a pretty good relationship with Marleen.”
After Debra Witherow’s testimony, Swezey told Greer that Scotty Witherow was in no shape to testify again for the sentencing. Swezey said that the aggravated malicious wounding charge carries a mandatory minimum sentence of three years, but the other charges had no minimum sentence.
Special prosecutor Bryan Haskins, who is the Pittsylvania County commonwealth’s attorney, asked the jury to impose the maximum punishment on each count, despite Witherow’s age and ailments.
“It’s a fundamental concept of this justice system to show mercy on those who accept the consequences of their actions,” he said. Witherow did not do that, Haskins added.
The jury recommended a sentence of five years on the malicious wounding charge, three years on the charge of use of a firearm in the commission of a felony, and two years on the charge of shooting in an occupied dwelling.
Greer said that under state law, a convicted felon over age 65 who has served five years in prison is eligible to petition the parole board for early release.
After the jury’s release, Swezey moved that the jury’s verdict be set aside, which Greer denied. Swezey later said that often is done to allow the defense the option to appeal the verdict.
A sentencing hearing was scheduled for 2 p.m. May 29. Greer ruled that Witherow can remain on bond under his daughter’s care until then.
The defense will have 30 days to file an appeal after the sentencing hearing, Swezey said. He did not say whether an appeal would be filed at that time.
Witherow retired from the Martinsville Police Department in 1998 after having served from 1971 to 1973, and again from 1973 to 1998.