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Lewis v. State5/30/2003
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
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