Lewis v. State

• Decision Date: 30 May 2003
• Parties: Gerrald Patrick LEWIS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

889 So.2d 623

Gerrald Patrick LEWIS v. STATE of Alabama.

CR-99-1155.

Court of Criminal Appeals of Alabama.

May 30, 2003.

Glenn L. Davidson, Mobile, for appellant.

William H. Pryor, Jr., atty. gen., and Anne C. Adams, asst. atty. gen., for appellee.

SHAW, Judge.

The appellant, Gerrald Patrick Lewis, was convicted of three counts of capital murder in connection with the murder of Misty McGugin. The murder was made capital (1) because it was committed during the course of a kidnapping in the first degree or an attempt thereof, see § 13A-5-40(a)(1), Ala.Code 1975; (2) because it was committed during the course of a robbery in the first degree or an attempt thereof, see § 13A-5-40(a)(2), Ala.Code 1975; and (3) because it was committed during the course of a rape in the first degree, a rape in the second degree, or an attempt thereof, see § 13A-5-40(a)(3), Ala.Code 1975. Lewis was also convicted of two counts of attempted murder, two counts of attempted kidnapping in the first degree, two counts of attempted rape in the first degree, and two counts of robbery in the first degree relating to Stephanie Grayson and Ashley Bitowf. The jury recommended, by a vote of 10-2, that Lewis be sentenced to death for his capital-murder convictions. The trial court accepted the jury's recommendation and sentenced Lewis to death. In addition, the trial court sentenced Lewis, as a habitual felony offender, to life imprisonment without the possibility of parole for the two attempted-murder convictions, the two attempted-kidnapping convictions, and the two robbery convictions, and to life imprisonment for the two attempted-rape convictions. Lewis's sentences were to run consecutively.

The evidence adduced at trial indicated the following. On Wednesday, February 4, 1998, 21-year-old Misty McGugin was reported missing. McGugin was last seen by her family on Friday, January 30, 1998, when she dropped off her two-year-old son to spend the weekend at her grandmother's house in Chickasaw. McGugin was scheduled to pick up her son on Monday morning, but she never did. McGugin's family initially searched for McGugin themselves, but after they discovered her Ford automobile abandoned in the parking lot of the Drifter's Lounge on the causeway, they filed a missing person's report with the Baldwin County Sheriff's Department.

The State presented evidence indicating that McGugin had been employed by Abigail's Escort Service and that her "stage name" at the escort service was "Tosha." (R. 1331-32.) James Ashley Lee, the manager of Abigail's Escort Service, told investigators with the Baldwin County Sheriff's Department that he had spoken with McGugin on Saturday, January 31, 1998. Specifically, Lee told investigators that on Saturday evening he received a telephone call from a man who identified himself as "Mark Evans" and who asked for "Misty." (R. 1331.) Lee said that Mark Evans was one of McGugin's regular clients and that he often telephoned the agency for McGugin. Lee told investigators that the man who called for McGugin stated that he was at Woody's Motel in room 18 and that he wanted McGugin to come over. Lee then notified McGugin that she had a client and McGugin came to the agency, telephoned Woody's Motel, spoke with someone, and then told Lee that she would go. Lee said that McGugin went to the motel at around 9:00 p.m. that night and, pursuant to prearranged safety procedures, McGugin telephoned Lee when she arrived and told him that she knew the man and that everything was fine. McGugin was not heard from again.

John Stewart, a sergeant in the criminal investigations division of the Baldwin County Sheriff's Department, testified that during the investigation into McGugin's disappearance, he discovered that McGugin had been friends with a man named Mark Evans (whom Sgt. Stewart said she had originally met through the escort service) and that McGugin had babysat for Evans's children on January 30, 1998. Early in the investigation, Sgt. Stewart was informed that a confidential informant knew McGugin and had seen her at approximately 3:00 a.m. on the morning of February 1, 1998, at a nightclub called Solomon's. The informant had told Deputy Scott Ward that he had seen McGugin with two men, both of whom he described. Sgt. Stewart stated that the descriptions the informant had given Deputy Ward matched the descriptions of two people he had learned during the investigation were friends with McGugin — Mark Evans and Robert Ernest Lee III. Sgt. Stewart put together two photographic lineups for the informant to look at, but the informant was unable to positively identify anyone in the lineups.

As a result of the information received from James Lee, Sgt. Stewart visited Woody's Motel early in the investigation and obtained the registration card for room 18 for the night of January 31, 1998; the card listed the occupant as "Mark Evans." However, Sgt. Stewart was suspicious that the person who had rented room 18 on January 31 was not the Mark Evans who had been friends with McGugin. Specifically, Sgt. Stewart testified that although the registration card listed the correct address for Mark Evans, the name of the street was misspelled and the zip code was incorrect. In addition, when he investigated the Social Security number listed on the card, Sgt. Stewart learned that the number was not Mark Evans's number, but was the Social Security number of someone who lived in another state. Eventually, Sgt. Stewart spoke with Mark Evans about McGugin's disappearance. According to Sgt. Stewart, Evans had an alibi for the night of January 31, 1998, and after he confirmed Evans's alibi, Sgt. Stewart said, he no longer considered Evans a suspect. Donald Pears, an officer with the Mobile Police Department who was assigned to the homicide unit in 1998, testified that during the month of April 1998, he was investigating the murder of a Mobile woman, Kathleen Bracken. Bracken's body had been discovered at the Twilight Motel in Mobile on the evening of April 11-12, 1998. During his investigation, Officer Pears learned that Bracken had been employed by an escort service and that the night before her body was discovered, she had been with a man named "Patrick." One of Bracken's coworkers gave Officer Pears a description of Patrick; that description led Officer Pears to Lewis. Lewis was arrested for Bracken's murder on April 14, 1998. On April 27, 1998, at approximately 4:00 p.m., Officer Pears said, Lewis telephoned him from the Mobile Metro Jail and asked to speak with him. Officer Pears immediately went to the jail to speak with Lewis. Officer Pears testified that before speaking with Lewis, he advised Lewis of his Miranda rights.¹ Officer Pears stated that Lewis did not appear to be under the influence of alcohol or narcotics; that Lewis appeared to understand his rights; that Lewis did not have any problem communicating; and that Lewis agreed to waive his rights and signed a waiver-of-rights form. In addition, Officer Pears testified that he did not threaten Lewis and that he did not promise Lewis anything nor offer any hope of reward to Lewis for making a statement. Lewis then gave a statement to Officer Pears in which he confessed to murdering both Misty McGugin and Kathleen Bracken. The confession was taped, and a redacted version of the audiotape was introduced into evidence and played for the jury.²

In his statement to Officer Pears, Lewis stated that approximately two months earlier, he had rented a room at Woody's Motel using a name he had picked out of the telephone book and that he had telephoned an escort service and requested that they send someone to his room. A girl arrived shortly after he called; Lewis said that he saw on her driver's license that her name was "Misty." When the girl arrived, Lewis said, he paid her $150 and they had sexual intercourse. Lewis told Officer Pears that as the girl was about to leave, he decided that he needed his money back to pay his lawyer to defend him against a charge of driving under the influence.³ At that point, Lewis said, he grabbed the girl and began choking her with a white nylon rope that he had brought with him from home; she resisted at first, but eventually she passed out. Lewis said that he then stabbed her "two or three times in her heart." (C. 503.) Lewis said that he then wrapped the girl in a blanket from the motel room, dragged her outside, and put her in the backseat of her car; he covered her with a tarp he retrieved from his truck. At that point, Lewis said, he went back in the motel room and attempted to clean up — he attempted to wipe his fingerprints off of everything in the room and he took several items from the room, including the girl's purse, and put them in his truck. Lewis stated that he then drove his truck to the Drifter's Lounge, parked it, walked back to the motel, got in the girl's car and began driving to the woods off of Highway 66. As he was driving, Lewis said, he heard the girl "coughing ... and... gurgling" so he stopped the car, got out, and tightened the rope around her neck. (C. 506.) He then continued driving and dumped the girl in the woods, after which, Lewis said, he drove the car back to a local Wal-Mart discount store. On the way, he stopped at a gas station and threw the tarp he had used in a dumpster. Lewis said that he stopped in the Wal-Mart parking lot, searched the car, and then drove the car to the Drifter's Lounge, where he had left his truck. Lewis stated that he took several items from the car, including a tape measure, two screwdrivers, a pink ponytail holder, and approximately $100 in cash (which he found in the glove compartment), and then left in his truck. Lewis said that he went home and searched through the girl's purse, where he found the $150 he had paid her earlier and some additional money. Sometime later, Lewis said, he got rid of everything except the pink ponytail holder. Lewis said that he threw the purse in the woods and...