from Etowah Circuit Court (CC-15-1449)
Dangelo McKinney was convicted of murder, see
§ 13A-6-2, Ala. Code 1975, and domestic violence by
strangulation or suffocation, see § 13A-6-138,
Ala. Code 1975. The circuit court sentenced McKinney to 10
years' imprisonment for the domestic-violence conviction
and to 65 years' imprisonment for the murder conviction
and ordered that the sentences were to run
does not challenge the sufficiency of the evidence on appeal.
Therefore, a brief recitation of the facts is all that is
necessary. In January 2012, Alanna Partee and McKinney began
a dating relationship after meeting in a federally operated
halfway house. Sometime near the end of 2013, Partee and
McKinney moved in with Partee's mother, Carolyn. Carolyn
had another daughter from a previous relationship, Tracy
Slaton, who was in a dating relationship with Amos Jackson.
McKinney and Jackson knew each other as friendly
August 26, 2014, McKinney and Partee had a series of
arguments that led to a physical altercation in which
McKinney threw Partee against her bed and choked her with his
hands. Following the incident, McKinney left Carolyn's
house with his belongings. Partee subsequently telephoned
Jackson, who drove to the house and told Partee to report the
incident to police. The next morning, Partee slept through
her alarm; she woke to the sound of Jackson's car horn
when he arrived to drive Partee to work as he did on a daily
basis. While Partee dressed in her bedroom, she could hear
Carolyn and Jackson telling McKinney to leave. Jackson
repeatedly asked McKinney to leave and told McKinney that he
would have shot him if he had been present the night before.
McKinney and Jackson began to fight, and Jackson sustained
multiple stab wounds resulting in his death.
was subsequently charged in separate indictments for murder
and domestic violence by strangulation or suffocation. The
State filed a motion to consolidate the two offenses for
trial, and the circuit court granted the motion. After he was
convicted of both offenses, McKinney filed a motion for new
trial in which he argued, among other things, that his
due-process rights were violated when the circuit court
granted the State's motion to consolidate the offenses
before McKinney had an opportunity to respond. Following a
hearing, the circuit court denied the motion for new trial.
argues that the circuit court violated his "right to due
process by granting the State's motion to consolidate
without first allowing [McKinney] the opportunity to be
heard." (McKinney's brief, p. 9.) McKinney cites
Rule 13.3(c), Ala. R. Crim. P., which states:
"(c) Consolidation. If offenses or defendants are
charged in separate indictments, informations, or complaints,
the court on its own initiative or on motion of either party
may order that the charges be tried together or that the
defendants be joined for the purposes of trial if the
offenses or the defendants, as the case may be, could have
been joined in a single indictment, information, or
complaint. Proceedings thereafter shall be the same as if the
prosecution initially were under a single indictment,
information, or complaint. However, the court shall not order
that the offenses or the defendants, as the case may be, be
tried together without first providing the defendant or
defendants and the prosecutor an opportunity to be
(Emphasis added.) McKinney cites Lee v. State, 748
So.2d 904, 909 (Ala.Crim.App.1999), overruled on other
grounds by Pruitt v. State, 954 So.2d 611
(Ala.Crim.App.2006), for the proposition that Rule 13.3(c)
"'is mandatory and requires strict compliance.
Noncompliance results in [reversible] error.' Ex
parte Jones, 473 So.2d 545 (Ala. 1985)." Citing
Goodman v. State, 611 So.2d 446 (Ala.Crim.App.1992),
McKinney argues that when a "trial court fails to
provide the opportunity to be heard by granting a written
motion to consolidate the same day it is filed, that trial
court acts arbitrarily, and [a denial of] due process ...
occur[s]." (McKinney's brief, p. 12.)
the State filed its motion to consolidate on February 8,
2016. Within three hours of the State's filing its motion
to consolidate, the circuit court granted the motion without
holding a hearing. McKinney filed an objection to the merits
of State's motion on February 26, 2016. The circuit court
dismissed McKinney's objection as moot on February 29,
case was set for trial and rescheduled multiple times over
the next year. On March 2, 2017, the circuit court granted
McKinney's motion to continue the trial that had been set
for March 6, 2017. McKinney's trial began on April 4,
2017, and he was found guilty on April 10, 2017. In his
motion for a new trial, McKinney argued, for the first time,
that the circuit court's granting of the State's
motion to consolidate was inconsistent with Goodman.
Goodman, the defendant was charged in separate
indictments with two counts of second-degree theft of
property by deception. The State moved, two weeks before
trial, to consolidate the offenses for trial, and the circuit
court granted the motion on the day it was filed. 611 So.2d
at 447. On appeal, Goodman argued "that the trial court
erred in granting the state's motion to consolidate the
two offenses for trial without first giving him notice and an
opportunity to object." 611 So.2d at 447. Although this
Court recognized that "the 'opportunity to be
heard' includes notice and the opportunity to object, but
does not necessarily require an adversarial hearing or oral
argument," 611 So.2d at 448 (quoting Sharpe v.
State, 560 So.2d 1107 (Ala.Crim.App.1989)), this Court
agreed with Goodman and reversed the circuit court's
judgment. In doing so, this Court rejected the State's
argument that affording Goodman the opportunity to file a
motion to sever--which he, in fact, had filed on the date of
trial--had "'cure[d] the prejudicial error resulting
from violation of the rule'" requiring notice and an
opportunity to be heard. Goodman, 611 So.2d at 448
(quoting Ex parte Jones, 473 So.2d 545, 546 (Ala.
McKinney's case, the State asserted the following
"bare-bones" grounds in support of its motion to
"1. That the offenses are of the same or similar
"2. The offenses are based on the same conduct or are
otherwise connected in their commission; or
"3. The offenses are alleged to have been part of a
common scheme or plan[; or]
"4. That the cases herein could have been joined in a
single indictment, information or complaint."
(C. 15.) McKinney's objection, filed 18 days after the
State's motion had been filed and granted, was as
"bare bones" as was the State's motion. It
"1. [McKinney] avers that the cases did not occur within
the same time frame. That the two alleged offenses occurred
on two different dates.
"2. That the two alleged offenses are not based off the
same conduct or not otherwise connected.
"3. That the alleged offenses are not part of a common
plan or scheme.
"4. That by consolidated [sic] the alleged offenses
[McKinney] will be unduly prejudiced.
"5. That a hearing is needed in this matter."
(C. 19.) Thus, McKinney's objection was directed to the
merits of the consolidation, not the manner in
which the motion to consolidate had been granted. The
circuit court, as noted, denied this objection as
"moot." McKinney did not mention the issue of
consolidation again until more than a year later when his
newly appointed counsel filed a motion for a new trial. In
that motion, counsel argued for the first time that the
manner in which the motion to consolidate had been
granted was improper under Goodman.
hearing on the motion for a new trial, the prosecutor argued
that the charges against McKinney were "inextricably
intertwined" and inevitably would have been consolidated
based on their facts, regardless of whether there had been a
hearing on the motion to consolidate. In response, McKinney argued
that Goodman required reversal without regard to any
other circumstance. After hearing the arguments, the circuit
court disagreed with McKinney's reading of
Goodman. The circuit court stated:
"[I]t would seem unusual ... for the appellate court to
decide this issue in a complete vacuum if there was
opportunity for cure given--if there was procedural error and
there was an opportunity given, seemed like they
would--doesn't make--I don't understand why they
wouldn't assess that.
"And also whether or not there was actually any
prejudice to the defendant by the ruling of the Court, if it
is acknowledged that, as [the prosecutor says], it would be a
practical impossibility to have tried the case, the murder
case, without discussing the res gestae, I guess, or the
events leading up in the short hours before the murder or
what led to the emotions of the parties or whatever the
personal interaction between the parties was.
"If the appellate court acknowledged that, that is
something that would have been a virtual impossibility or
impact--why they would not take that into account as well.
Just seemed like, well, you did that, so we're trying the
"Just seems to be--without looking at some other issues,
just would seem to be very unusual, I would think."
agree with the circuit court's reading of
Goodman. There are, in fact, good reasons to
question whether Goodman is limited in its reach or