McGowen v. State

• Decision Date: 11 September 2003
• Docket Number: No. 2002-KA-00676-SCT.,2002-KA-00676-SCT.
• Citation: 859 So.2d 320
• Parties: Hugh Wilton McGOWEN, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

859 So.2d 320

Hugh Wilton McGOWEN, Jr. v. STATE of Mississippi.

No. 2002-KA-00676-SCT.

Supreme Court of Mississippi.

September 11, 2003.

Rehearing Denied November 20, 2003.

Ross Parker Simons, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before McRAE, P.J., EASLEY and CARLSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. Hugh Wilton McGowen, Jr. (McGowen) was indicted for the crime of capital murder by the April 2000 Jackson County Grand Jury. More specifically, the indictment charged McGowen with the murder of Shelby Lynn Tucker while in the commission of the crime of kidnapping. Miss.Code Ann. § 97-3-19(2)(e). Following a four-day trial, a jury found McGowen guilty of capital murder and thereafter, upon being given the option of finding that McGowen could be sentenced to death or life without parole, the jury found that McGowen should be sentenced to life without parole in the state penitentiary. Miss. Code Ann. § 99-19-101(1). Four days after the jury verdict, the trial court entered its judgment consistent with the jury verdict and sentenced McGowen to life imprisonment without the benefit of parole. Miss.Code Ann. § 99-19-101(1); Miss. Code Ann. § 47-7-3(1)(e) (Supp.2001). McGowen's motion for a new trial was denied on March 21, 2002, and from that order McGowen has perfected this appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On February 27, 2000, at approximately 8:00 a.m., Vicki McGowen, McGowen's sister-in-law, called 911 to report missing her 4-year-old granddaughter, Shelby Lynn Tucker. Upon arriving at Vicki's residence, the Jackson County Sheriff's Deputies learned that Vicki put Shelby to bed around 10:00 p.m. on February 26, 2000, and woke the following morning to discover her missing. The Sheriff's Deputies found no signs of forced entry and began a search for the absent child. Vicki told Deputy Sheriff Terry Dosher that McGowen had been the last person at her home around 2:00 a.m. that morning, February 27, 2000. Charles McGowen, Vicki McGowen's husband and Shelby's step-grandfather, added that his brother, Hugh McGowen, "liked little girls." At this point, Deputy Dosher sought to speak with McGowen.

¶ 3. McGowen initially reported no knowledge of Shelby's whereabouts. However, during subsequent conversations with law enforcement officers, McGowen revealed the location of Shelby's body and produced objects related to her murder. On the afternoon of February 28, 2000, Sergeant Eddie Stewart and Lieutenant Louie Miller of the Pascagoula Police Department spoke with McGowen at his residence. McGowen dictated a map to the officers leading them to Shelby's body, and produced a blue plastic bag containing a blanket. "This is Shelby's blanket," he told the officers. "This is what she was wrapped up in." After Sergeant Stewart advised McGowen of his Miranda rights, McGowen volunteered further cooperation by taking the officers to a bridge where he located a piece of rope that he told the officers was "what I used to strangle her with." Sergeant Stewart transported McGowen to the Jackson County Sheriff's Department, where McGowen offered an eleven-page statement.

¶ 4. In his statement, McGowen testified that on the afternoon of February 26, 2000, he and his brother, Charles, traveled the short distance to Mobile, Alabama, to watch remote control car races. During their spectating and on the ride home, McGowen and his brother imbibed Old Milwaukee beer to the point of becoming drunk. When they returned to Charles's home around midnight, Charles passed out in the front seat of McGowen's company truck. Then, according to McGowen's statement, something "just clicked." McGowen took his brother's keys, went inside his brother's house, picked up Shelby, and took her to his residence in Charles's truck.

¶ 5. Once inside his residence, McGowen made sexual contact with Shelby, touching her vagina with his fingers. Forensic reports later showed vaginal distension but no evidence of semen in or around Shelby's genitalia. McGowen maintained he did not have sex with Shelby and that he remained clothed the entire time he was with Shelby. Whatever the contact, Shelby told McGowen he was hurting her and began to scream. McGowen panicked and grabbed a piece of rope, the kind he used at work everyday to tie off cable. He formed a "Chinese finger" with the rope and began strangling Shelby. Believing he had killed her, McGowen put Shelby in his brother's truck and drove to a nearby wooded area. Along the way, Shelby regained consciousness and began crying. Further panicked, McGowen struck Shelby in the head with a small sledge hammer or mallet he found in his brother's truck. He left Shelby's body in the woods and returned to Charles's house.

¶ 6. Charles was no longer in McGowen's truck when McGowen returned to Charles's residence. Upon waking from his stupor without keys to his house, Charles slept in a shed in his yard. McGowen retrieved his truck and returned to his residence. When he got home, McGowen realized he still had the rope and Shelby's blanket. He took the rope to a bridge and threw it over the side. He wrapped the blanket in a plastic bag and stuffed it in a mattress in his house.

¶ 7. The trial began on January 15, 2002. The State called fourteen witnesses. Vicki McGowen was the State's first witness. Vicki testified that she kept Shelby the Saturday night Shelby was abducted. Vicki had taken Shelby and another grandchild to her grandson's basketball game and to the shopping mall during the day. That night, she put Shelby and the other grandchildren to bed around 10:00 p.m. and locked the door to her trailer home. When Shelby was missing the next morning, Vicki called 911. Vicki further testified that she received a letter addressed to her husband, Charles, from McGowen which attempted to shift the blame to Charles. Disguising her handwriting to look like her husband's, Vicki sent a oneline reply to McGowen, "Better thee than me. Ha! Ha!" hoping it would anger McGowen.

¶ 8. The State's second witness was Miranda Tucker Tames, Shelby's mother. Miranda testified that her mother, Vicki, kept Shelby while she was working Saturday February 26, 2000. Over defense objection, Miranda also opined she believed McGowen murdered her daughter.

¶ 9. Terry Dosher, who was the first responding officer to the scene, testified he filed the initial offense report. He also testified on cross-examination that Charles told him that McGowen "likes young girls."

¶ 10. The State called two crime scene investigators, who assisted in photographing and searching for evidence in this case. Through the first investigator, Rodney Fountain, the State introduced a photograph of Shelby's face over defense counsel's objection and motion in limine for the photograph to be excluded from evidence. Defense counsel averred the photograph had no probative value, was gruesome, and would prejudice the jury. Defense counsel further contended the photograph should only be introduced, if at all, by the State's pathologist, Dr. Paul McGarry, who would make it as "gruesome as he possibly can," but should not be introduced by a nonmedical expert. During the redirect examination of Investigator Fountain, the State made several references to digital and penile penetration and the presence or absence of seminal fluids in sexual assault investigations in general. Defense counsel objected repeatedly, but was consistently overruled by the trial judge. Through the second investigator, former Jackson County Sheriff's Deputy Dean Reiter, a mallet was marked for identification, but it was not admitted into evidence through Investigator Reiter.

¶ 11. Next, the State called Philip Holt, McGowen's neighbor, who testified that he saw McGowen drive off erratically in his brother Charles's truck early on the morning of Sunday February 27, 2000, and that McGowen returned to get something out of his own truck and left again. Cross-examination revealed Holt wore glasses, had drunk two beers at the Isle of Capri Casino between 11:00 p.m. and 2:00 a.m., did not live directly across from McGowen's house where his truck was parked, and had bought a boat from McGowen's exwife.

¶ 12. The State's next witness was Melissa Schoene, a hair and fiber analyst with the Mississippi Crime Lab at the time this case was processed. Schoene described her training and was accepted as an expert witness by the trial court. Schoene testified that the microscopic comparison of hair samples did not allow an analyst to conclude that a "particular hair came from a particular person," but rather that one of three conclusions could be reached: (1) no similarities between samples, (2) the samples exhibit the same characteristics so as to be indistinguishable, or (3) the samples exhibit some similarities and some differences.

¶ 13. Schoene's samples for comparison in this case were from "sexual assault kits" taken from McGowen, his brother Charles, and Shelby. At trial, Schoene was presented with three items for identification: black tape, a blue bag, and a baby blanket. Schoene identified the items as evidence she had examined in the crime lab, but a chain of custody objection prevented the State from introducing the items into evidence via Schoene. Additionally, Schoene testified she had examined hair samples taken from these exhibits, compared them with samples from Charles and Hugh McGowen, and concluded she could exclude neither man as the donor of the hair. Over a defense objection, Schoene further testified that a tear on a roll of tape from Hugh McGowen's home matched tears in the tape removed from the blue plastic bag.

¶ 14. The State's next witness was Dr. Paul McGarry, a forensic pathologist from the coroner's office of Orleans Parish, Louisiana, and other coroner's offices along the Gulf Coast. Dr. McGarry, who performed the autopsy on Shelby's body on February 29, 2000, testified that his observations...