Lewis v. State

Michael Jerome Lewis v. State of Alabama

CR-14-1523

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2019-2020

May 29, 2020

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Houston Circuit Court

(CC-97-1574.60)

On Return to Remand

MINOR, Judge.

Michael Jerome Lewis, an inmate on death row, appeals the Houston Circuit Court's denial of his petition for postconviction relief under Rule 32, Ala. R. Crim. P. We affirm.

Facts and Procedural History

A jury convicted Lewis in 2003 of capital murder for the 1997 killing of Timothy John Kaye "during a kidnapping in the first degree or an attempt thereof." See § 13A-5-40(a)(1), Ala. Code 1975. The jury recommended, by a vote of 10-2, that Lewis be sentenced to death; the circuit court accepted the jury's recommendation and sentenced Lewis to death.

In Lewis's direct appeal, we summarized the relevant facts and procedural history that led to Lewis's conviction and death sentence:

"During the early morning hours of April 26, 1997, Lewis, James Anthony [('Tony')] Free, April Hargedon, and Timothy John Kaye went to Lewis's mobile home in Houston County. Free and Kaye became involved in an altercation, which resulted in Free's beating Kaye in the head with his fist and a beer bottle. At some point, Lewis also became involved in the altercation. Free and Lewis then started arguing over who would shoot Kaye. The badly beaten Kaye was subsequently shot twice in the head. Kaye was placed in the back of his pick-up truck and taken across the state line into Holmes County, Florida. Lewis and Free then threw Kaye's body from a bridge on Highway 2 into the Choctawhatchee River. Lewis and Free later returned to Houston County, Alabama, in Kaye's truck, drove the truck to a field alongside Sonny Mixon Road, and set it on fire.

"The evidence presented at trial tended to establish the following. On the afternoon of Friday, April 25, 1997, 38-year-old Timothy John Kaye left his parents' home in Houston County, telling hisparents that he planned to attend his daughter's softball game. Later that evening, around 7:30 or 8:00 p.m., Sarah Kaye talked to her son again. Kaye asked his mother to tell his father that he would be by to pick him up around 6:00 a.m. on Saturday; the two men planned to go to a relative's house in Mississippi to pick up some shrimp. Kaye failed to show up at his parents' house the following morning, or for his daughter's birthday party on Sunday, April 27; repeated attempts to contact him were unsuccessful.

"On April 27, Investigator Richard St. John of the Houston County Sheriff's Department was dispatched to a location on Sonny Mixon Road in Houston County. Upon arrival, Investigator St. John saw a burned pick-up truck in a field. The truck was towed to an impound lot in Dothan. After authorities determined that the vehicle was registered to Timothy John Kaye, the Houston County Sheriff's Department attempted to contact Kaye and left a message on Kaye's answering machine regarding the discovery of the vehicle and its condition.

"On the morning of Tuesday, April 29, after repeated attempts to contact their son, the Kayes 'broke into' Timothy Kaye's home. Inside the house they found a birthday card for his daughter on the kitchen bar; the shirt and jogging shorts he wore to sleep in were [lying] on his bed. As best the Kayes were able to determine, all that was missing from their son's closet were some 'casual clothes'--stone-washed jeans, a sports shirt, and a pair of athletic shoes. When the Kayes listened to the messages on their son's answering machine, they discovered a message from the Houston County Sheriff's Department asking that their son contact the sheriff's department. The Kayes then contacted the Houston County Sheriff's Department and subsequently filed a missing-person report on their son. Given the circumstances, an investigation was launched into Kaye's disappearance.

"The investigation of Kaye's disappearance led Houston County authorities to interview April Hargedon. During an April 30, 1997, interview, Hargedon told Investigator Donald Valenza and Commander Bill Land that on Friday, April 25, she accompanied Michael Lewis and Tony Free to the Corner Bar, located across the state line in Florida. The trio remained at the Corner Bar for several hours before returning to the Drifters' Club in Dothan, Alabama. According to Hargedon, [Lewis] was related to the Ready family, owners of the Drifters' Club. Inside the Drifters' Club, Hargedon lost contact with Free. However, Hargedon saw Lewis make contact with Kaye, a longtime acquaintance of Lewis's. At some point, Hargedon, Lewis, Kaye, and Kristy Hughes--Free's girlfriend--decided to leave the Drifters' Club and drive to the Players' Club. The group left the Drifters' Club, got into Lewis's Ford Bronco sport-utility vehicle, and proceeded toward the Players' Club. As Kristy Hughes was driving Lewis's Bronco to the Players' Club, the foursome was stopped by a Dothan police officer. After the officer determined that Hughes had an outstanding warrant, she was placed under arrest and taken into custody. Because Hargedon had no driver's license and Lewis and Kaye had been drinking, the officer called a taxi for them. When the taxi arrived, Hargedon, Lewis, and Kaye returned to the Drifters' Club. The trio went back inside the club for a while--long enough for Kaye to consume another beer and Lewis to purchase a bottle of Canadian Mist brand whiskey. Sometime after midnight--during the early morning hours of Saturday, April 26¹--the trio left the Drifters' Club in Kaye's maroon truck and drove to Lewis's mobile home.

"At the mobile home Lewis and Kaye sat around, drinking and talking. Hargedon stated that Lewis and Kaye seemed to be on good terms with each other, with one of them commenting that they had known each other for 20 years. It was not until Tony Free showed up that difficulties arose. According toHargedon, Free exhibited 'an attitude.' At some point after Free arrived, Lewis and Kaye went outside to engage in what appeared to Hargedon to be a brief, good-natured wrestling match. After several minutes, Lewis and Kaye stopped wrestling and began walking back inside. However, Free told Kaye that it was Free's turn to wrestle. Kaye told Free that he did not want to wrestle again and continued walking toward the mobile home. At this point, Free hit Kaye in the back of the head with a beer bottle, causing Kaye to fall to the ground. Free fell to the ground with Kaye and began hitting him.

"While Lewis and Hargedon looked on, Free 'jumped on' Kaye and pinned Kaye to the ground by sitting on his chest and/or abdominal area, leaving Kaye unable to defend himself as Free continued to hit him. According to Hargedon, the beating lasted 15-20 minutes, and throughout the beating Kaye kept asking Free, 'Why are you doing this?' While Free continued to beat Kaye, Lewis went inside the mobile home and returned with a shotgun. Hargedon stated that Lewis returned with the shotgun, but that he made no effort to stop Free from beating Kaye. Instead, Hargedon stated that Lewis said '"We got to finish this" or something to that effect.' Not knowing what Lewis meant by this comment, Hargedon replied, 'I don't want nobody shooting nobody in front of me,' then took the shotgun from Lewis and put it back inside the mobile home. Because Hargedon had never seen a beating as vicious as the one Free was inflicting on Kaye, she became concerned for her own safety. As Kaye lay on the ground moaning, she heard first Free, and then Lewis say, 'Let me shoot him,' referring to Kaye. In Hargedon's words, 'I just knew I needed to get out of there.'

"Hargedon stated that during the exchange between Lewis and Free over who would shoot Kaye, Lewis looked up and called out to a man across the road, 'Look what I got.' According to Hargedon, the man declined, stating 'he didn't need no shit, hewas in enough.' Hargedon stated that she took advantage of Lewis's conversation with the unknown man to slip into the darkness and make her escape.

"The man whom Lewis called out to was Mike Harger, the husband of Lewis's cousin Kandy Harger. The Hargers lived near Lewis; in fact, Lewis's mobile home was directly across the road from the Hargers' barn. On the morning of April 26, 1997, Kandy Harger awakened around 4:00 a.m. She left her house and went to the barn to check on the couple's gamecocks, because the couple was preparing to go to a cockfight. While checking on the gamecocks, Harger heard the sounds of someone being hit and/or beaten; she also heard someone moaning. The sounds, which Harger described as 'loud,' came from the direction of Lewis's residence; she continued to hear these sounds as long as she was outside. After she went back inside her house, the telephone rang. When Harger answered the telephone, she discovered that it was her cousin, Mike Lewis. Lewis wanted Harger's husband to come over to his residence. Harger told her husband what Lewis had said. A short while later, she returned to the barn. Harger's husband subsequently drove the couple's truck to the barn to load the gamecocks. Harger heard Lewis call out to her husband to 'come over.' Harger stated she was fearful of what was going on at Lewis's and that she did not want her husband to go over there. Her husband did not go over to Lewis's residence. Instead, the couple loaded up their gamecocks and left. Although the sounds coming from Lewis's yard upset Harger, she did not call emergency 911 or notify the authorities because her husband would not let her. When she and her husband left around 5:00 a.m., Harger could still hear

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