Denied June 28, 2019.
[Copyrighted Material Omitted]
from Jefferson Circuit Court, Bessemer Division (CC-92-793).
Lloyd and Robert Matthews, Birmingham, for appellant.
Marshall, atty. gen., and Jack W. Willis, asst. atty. gen.,
Michael Thrasher appeals a judgment of the Jefferson Circuit
Court resentencing him to life imprisonment without the
possibility of parole for his 1993 capital-murder conviction.
and Procedural History
October 1993, Thrasher was convicted of murder made capital
pursuant to § 13A-5-40(a)(10), Ala. Code 1975, for the
intentional killing of Allen Eakes and Kevin Duncan when
Thrasher was 16 years old. Thrasher summarizes the facts
giving rise to his conviction as follows:
"[O]n February 8, 1992, Carvin Stargell and Nathan
Gast, beat Eakes and Duncan before leaving them to drown in
a creek in ... Jefferson County. Mr. Thrasher was allegedly
the orchestrator of the murders and purportedly instructed
Stargell and Gast to murder Eakes and Duncan.
"The sole witness to the events was Ginger Minor.
Minor was nearly beaten to death by Stargell with a
baseball bat and left to die in a vacant lot that same
evening. Minor recovered and testified against Mr. Thrasher
at trial. Minor testified that Mr. Thrasher was the leader
of the gang that included Stargell and Gast. Mr.
Thrasher, Minor, Stargell, Gast, Eakes, and Duncan were
together on February 8, 1992. That night after buying
alcohol, the group went to Crown Point Apartments to swim
in a hot tub. Mr. Thrasher, Minor, Stargell, and Gast got
in the hot tub while Duncan and Eakes remained in the car.
Minor testified that Mr. Thrasher made her perform oral sex
on Gast and Stargell so that she could become a female
member of the group called a `disciple queen.'
"Afterwards, Stargell and Gast left Mr. Thrasher and
Minor alone in the hot tub. At some point, Duncan came up
to the fence around the pool area covered with drool and
said `Chris, are you crazy? They tried to choke us and said
we had to die.' Minor testified that Mr. Thrasher went
up to the fence to talk to Duncan and was laughing and
grinning. Duncan walked back to the car and left with Gast,
Stargell, and Eakes. Mr. Thrasher told Minor that Stargell
and Gast were taking Eakes and Duncan home. While they were
gone, Mr. Thrasher got sick and vomited over the side of
the hot tub.
"Stargell and Gast were gone for two hours. When they
returned, Eakes and Duncan were not with them. Stargell
told Gast to help Mr. Thrasher get dressed while Stargell
took Minor's clothes and dragged her to the car. As he
dragged her to the car, Stargell repeatedly told Minor,
`girl you gotta die.' Stargell put Minor in the
backseat of the car with Gast while Stargell drove; Mr.
Thrasher sat in the front passenger seat.
"As they drove around, Gast told Minor that he and
Stargell had put the other boys in the creek while Stargell
bragged about how they had beat them and that they were
dead. They drove to Red Mountain where Stargell said they
were going to throw Minor off the mountain, but they did
they ended up in a wooded area in Bessemer, where Stargell
tried to rape Minor in the car.
"After the attempted rape, Stargell told Minor to get
out of the car for the last part of the initiation. Mr.
Thrasher had a baseball bat. Stargell and Mr. Thrasher kept
saying that Minor had to die and Stargell was telling Mr.
Thrasher to hit her with the bat. At some point, Mr.
Thrasher told Minor to say the disciple's prayer for
the gang. Mr. Thrasher picked up a rock but didn't hit
her with it.
"Minor testified that Stargell kept telling Mr.
Thrasher to hit Minor, but Mr. Thrasher said he
couldn't bring himself to hit her. At that point,
Stargell bashed Minor in the head with the bat. The last
thing Minor remembered was a `ping' sound when Stargell
struck her head with the bat."
brief, at 1-4 (citations to trial transcript and footnote
time of Thrasher's conviction, § 13A-6-2(c), Ala.
Code 1975, authorized only two possible sentences for a
capital-murder conviction — death or life imprisonment
without the possibility of parole. After Thrasher waived his
right to the participation of the jury in the sentencing
hearing, see § 13A-5-44(c), Ala. Code 1975, the
trial court sentenced Thrasher to life imprisonment without
the possibility of parole. This Court affirmed Thrasher's
conviction and sentence on direct appeal. See Thrasher v.
State, 668 So.2d 949 (Ala.Crim.App. 1995) (table), cert
denied Ex parte Thrasher, 667 So.2d 750 (Ala. 1995)
4, 2013, Thrasher filed a Rule 32, Ala. R. Crim. P., petition
for postconviction relief in which he argued that his
sentence of life imprisonment without the possibility of
parole is unconstitutional under Miller v. Alabama,
567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which
prohibits a sentencing scheme that "mandates life in
prison without possibility of parole for juvenile
offenders." Id. at 479, 2469, 132 S.Ct. 2455.
Although the State initially moved to dismiss Thrasher's
petition, the State and Thrasher subsequently filed a joint
motion to stay the Rule 32 proceedings pending the United
States Supreme Court's decision in Montgomery v.
Louisiana, 577 U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599
(2016), in which the Court granted certiorari to address
whether Miller applies retroactively to cases on
collateral review. On January 25, 2016, the United States
Supreme Court issued its decision in Montgomery,
holding that Miller "announced a substantive
rule that is
retroactive in cases on collateral review."
Montgomery, 577 U.S. at ___, 136 S.Ct. at 732.
Thereafter, the State and Thrasher filed a joint motion in
which the State conceded that, in light of
Montgomery, Thrasher was entitled to a sentencing
hearing in accord with Miller. Thus, on March 9,
2016, the trial court entered an order granting
Thrasher's Rule 32 petition and scheduling a resentencing
September 27, 2017, less than one week before the
resentencing hearing, Thrasher filed a motion to continue the
hearing. In support of that motion, Thrasher argued that the
State, allegedly in violation of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), had
suppressed evidence indicating that Eakes's family and
Duncan's family had made cash payments to Minor prior to
her testimony at trial. Specifically, Thrasher argued that,
in preparation for the resentencing hearing, the State had
provided him with discovery that included a memorandum
drafted by prosecutor Ted Mills in February 1994 ("the
memorandum"). (C. 212.) According to Thrasher, the
memorandum noted that Eakes's family and Duncan's
family had made the payments to Minor prior to her testimony
at trial and that the State "became aware of the
payments in February 1994, approximately three (3) to four
(4) months after the trial of the defendant." The
memorandum itself, which Thrasher included with his motion to
continue, specifically indicates that, "[o]n February 2,
1994, [Mills] received a phone call from Annie Minor, Ginger
Minor's stepmother," who informed Mills "that
she had heard that [Minor] had received some money from the
Eakes and Duncan family [sic] sometime after the Carvin
Stargell trial." (C. 217.) According to the memorandum,
Mills arranged to meet with Minor at the same time that Andy
Bellanca, a captain with the Bessemer Police Department, was
to meet with Eakes's family and Duncan's family at a
different location to "inquire as to whether this
information was in fact true and, if so, what was the intent
of giving this money." (C. 218.) Mills reported that
Minor told him that
"the money she received was attached to a birthday
card and was nothing more than a gift for her sixteenth
birthday. She said that she got a hundred dollar bill in a
birthday card from the Eakes' family and another card
from the Duncans with a twenty dollar bill inside. [Minor]
went on to say that she did not receive any other money
from either family except that she did get a Christmas card
from the Duncans in December and enclosed inside the card
was a twenty dollar bill."
(C. 218.) After meeting with Minor, Mills discussed his
findings with Bellanca, who reported that "what
[Eakes's family and Duncan's family] told him was
almost identical to what [Minor] advised [Mills]." (C.
219.) Mills concluded the memorandum by noting that
"we informed Judge Dan Reynolds of the situation and
how we had handled it. Judge Reynolds advised that in his
opinion there was nothing to it and that we had handled it
properly, and that we should draft a memorandum explaining
the entire situation and make it a part of our file for
(C. 219.) Given his discovery of the memorandum, Thrasher
argued that he required a continuance of the resentencing
hearing "so that the facts of the [memorandum]
may be investigated further and, if necessary, a new trial
sought." (C. 213.)
October 2, 2017, the day of Thrasher's resentencing
hearing, the trial court heard the arguments of counsel
regarding Thrasher's motion to continue, and
Thrasher's counsel reiterated that the facts reflected in
the memorandum supported a Brady claim. (R. 6, 9.)
The trial court noted, however, that the facts in the
"may be a material issue challenging the conviction in
this case — it may be good grounds for appeal and
for a Rule 32 action to challenge the conviction but I am
not here to review the conviction. I am here to review the
sentence and only the sentence. So, that would not be a
basis for a continuance."
(R. 10.) Thus, the trial court denied Thrasher's motion
to continue and proceeded with the resentencing hearing.
the resentencing hearing, the State did not present any
witnesses in its case-in-chief, but relied instead on
"the complete transcript, all exhibits and all
evidence" from Thrasher's trial, which the trial
court reviewed (R. 35); the presentencing report from
Thrasher's original sentencing hearing, as well as an
updated presentencing report filed a few days before the
resentencing hearing; and Thrasher's disciplinary report
from the Alabama Department of Corrections. After the State
rested, Thrasher presented, among other witnesses, Minor and
Dr. Paul James O'Leary, a board-certified psychiatrist.
In rebuttal, the State presented victim-impact testimony from
Eakes's brother and Duncan's brother, and, at the
close of the hearing, Thrasher made a brief statement to the
October 13, 2017, the trial court entered a detailed judgment
in which it resentenced Thrasher to life imprisonment without
the possibility of parole. (R. 244.) Because Thrasher's
arguments on appeal include challenges to the trial
court's consideration of the evidence presented ...