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 Etowah Circuit Court
(CC-15-1449) PER CURIAM.
William 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 concurrently.
McKinney was also ordered to pay a $50,000 fine and a $10,000 crime-victims-compensation assessment.
McKinney 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 acquaintances.
On 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.
McKinney 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. McKinney appealed.
McKinney 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 heard."
(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.)
Here, 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, 2016.
The 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.
In 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. 1985)).
Ex parte Jones, 473 So. 2d 545 (Ala. 1985), involved the consolidation of charges against two defendants--Jones and Bryant--for trial. The opinion of the Supreme Court includes little factual background other than noting that neither the defendants nor their attorneys had notice of the granting of the State's motion to consolidate their trials. This Court affirmed the convictions, but the Alabama Supreme Court reversed. The entirety of the Alabama Supreme Court's reasoning in Jones was as follows:
"We cannot agree with the [Court of Criminal Appeals's] statement that [Rule 15.4(b), Ala. Temp. R. Crim. P., predecessor to current Rule 13.3(b), Ala. R. Crim. P.,] was effectively complied with or, if not, any error arising from the failure to comply was harmless. The rule is mandatory when stating 'the court shall not order that the defendants be tried together without first providing the defendants and the prosecutor an opportunity to be heard.' (Emphasis added.) Affording an opportunity to move for severance after consolidation fails to cure the prejudicial error resulting from violation of the rule.
"As asserted by the petitioners, they have a right to effective assistance of counsel at all critical stages of the proceedings against them. Amendment VI, Const. of U.S. Every lawyer experienced in representing persons charged with crimes knows it to be crucial to defense strategy and tactics that he is aware of whether his client is to be tried alone or with another.
"We today hold that the purpose of Rule 15.4(b), Alabama Temporary Rules of Criminal Procedure, can only be served by strict compliance with it."
473 So. 2d at 546.
In McKinney's case, the State asserted the following "bare-bones" grounds in support of its motion to consolidate:
"1. That the offenses are of the same or similar character; or
"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 simply stated:
"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.
At the 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:
The prosecutor also asserted that "all parties .... and I will represent to this Court that, as an officer of the Court, that both defense attorneys in this case always acknowledged that these cases, based on the facts, and the fact that the facts are so inextricably intertwined, we all recognized that the cases would have to be consolidated." (R. 934.) McKinney's newly appointed counsel at the hearing for the motion for a new trial did not address that assertion, and counsel does not address it on appeal.
"[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 case over.
"Just seems to be--without looking at some other issues, just would seem to be very unusual, I would think."
We 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 whether it mechanistically controls McKinney's case.
By its own terms, Goodman was limited to "the facts of [that] case." 611 So. 2d at 448. The Court did little, however, to disclose what those facts were, other than noting that "a hearing may or may not have been required on the state's motion to consolidate" and that "[h]ere, a determination cannot be made of whether the grounds set forth in support of the motion to consolidate and the underlying facts merited a hearing to satisfy the due process requirement." Id. In McKinney's case, however, he had the opportunity to object to the consolidation well before trial, and he did so. The grounds of that objection are in the record, as are the State's reasons for seeking consolidation. As noted, although McKinney objected to the merits of the consolidation 18 days after consolidation was ordered, McKinney waited more than a year to object to the manner in which the motion to consolidate had been granted.
Moreover, despite statements in Goodman about requiring "strict compliance" with Rule 13.3(c), Ala. R. Crim. P., this Court has backed away from strictly enforcing Rule 13.3(c) without regard to the circumstances of the particular case. In Yeomans v. State, 898 So. 2d 878 (Ala. Crim. App. 2004), for example, the defendant's four capital-murder charges were consolidated for trial even though the record did not indicate that the State ever filed a motion to consolidate the charges. This Court rejected the defendant's plain-error claim that he had not had the opportunity to be heard on the consolidation of the four charges. Among other things, this Court noted that the defendant "clearly had the opportunity to object to the consolidation and to be heard on any objection," but he had not objected and in fact had proceeded "as if the charges had been consolidated." 898 So. 2d at 891-92.
Accordingly, we disagree with McKinney's reading of Goodman as requiring reversal based on a procedural error under Rule 13.3(c), Ala. R. Crim. P., without regard to the circumstances of the particular case. Such a reading is not required by Goodman and, moreover, is inconsistent with Rule 45, Ala. R. App. P. ("No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."(emphasis added)).
Furthermore, unlike the Court's assessment of the record in Goodman, the record in the present case is sufficient to evaluate the merits of the State's motion to consolidate. Here, McKinney was charged with offenses in separate indictments.
"'A trial court is vested with substantial discretion in deciding whether to consolidate cases, and its decision as to consolidation will be reversed only for a clear abuse of that discretion. See Snell v. State, 677 So. 2d 786, 789 (Ala. Crim. App. 1995).' Culver v. State, 22 So. 3d 499, 507 (Ala. Crim. App. 2008). The consolidation of separate indictments, so that the accused may be tried in one trial, is specifically provided for in Rule 13.3(c), Ala. R. Crim. P. That rule states, in relevant part:
"'If offenses ... 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 ... if the offenses ... could have been joined in a single indictment, information, or complaint.'
"Rule 13.3(a), Ala. R.Crim. P., provides, in part:
"'(a) Offenses. Two or more offenses may be joined in an indictment, information, or complaint, if they:
"'(1) Are of the same or similar character; or
"'(2) Are based on the same conduct or are otherwise connected in their commission; or
"'(3) Are alleged to have been part of a common scheme or plan.'"
Hinkle v. State, 86 So. 3d 441, 446 (Ala. Crim. App. 2011).
The State argues that the charges against McKinney--murder and domestic violence by strangulation or suffocation--were properly consolidated under Rule 13.3(a)(2) because they were "connected in their commission." (State's brief, p. 20.) The State notes that the offenses were committed within 12 hours of each other and contends that they were "inextricably intertwined." The State asserts:
"Arguably, Mr. Jackson's murder was just a continuation of the domestic violence case from the night before. McKinney returned during the night after strangling [Partee] and attempted to make contact with her. There is even some indication in the record that McKinney spent the night on the porch. McKinney was present at 5:00 a.m. when Mr. Jackson arrived to take [Partee] to work, less than 12 hours after the police arrived on the domestic violence call."
(State's brief, p. 20).) We agree with the State. Moreover, we also agree that any error in the consolidation was harmless in view of McKinney's admission to the domestic-violence charge during his testimony and his admission to stabbing Jackson, which, he claimed, was done in self-defense. The evidence indicated that the altercation between Jackson and McKinney occurred based on Jackson's allegedly telling McKinney that he would have shot McKinney if he had been present when McKinney assaulted Partee. The circuit court did not abuse its "substantial discretion" in consolidating the charges against McKinney under the facts of this case.
McKinney has not demonstrated that he is entitled to relief based on the circuit court's consolidation of the charges against him.
McKinney also challenges the circuit court's overruling of his objection, on relevance grounds, to a question the prosecutor asked McKinney on cross-examination regarding some writing that McKinney had done while he was incarcerated. The objection occurred in the following line of questioning:
"Q. Okay. Now, what I was getting to a few minutes ago about these bags -- now, you had another bag, too, didn't you?
"A. Yes, sir.
"Q. That's the one that had your books in it?
"Q. Now, when you say 'books,' are you talking about books that you read that somebody else wrote?
"A. I mean, I'm not exactly sure what you mean.
"Q. Well, didn't you have a book or maybe more than one book that you were trying to write, yourself?
"A. Inside that book bag, I'm pretty sure my book was in it maybe.
"Q. Okay. Now, so you were writing your own book, right?
"A. Well, I had written a book, yes.
"Q. Okay. When did you write your book?
"A. Back during my incarceration.
"Q. And you had it -- they were composition notebooks, right?
"A. (Witness nods head affirmatively.)
"Q. That you had written chapters in; chapter one, chapter two, chapter three? All that, right?
"A. Yes, sir.
"Q. In fact, that is bigger than the bag that's State's Exhibit 47. It was a very large book that you were writing, wasn't it?
"A. Yes, sir, I assume.
"Q. Lots of handwritten pages?
"A. Yes, sir.
"Q. And it was a work of fiction, I assume?
"A. Yes, sir.
"Q. So you at least considered yourself a writer?
"[McKinney's counsel]: Judge, objection. What's the
relevance of this?
"THE COURT: Overruled.
"Q. Did you consider yourself a writer? Writer of fiction?
"A. No, sir.
"Q. You're not a writer of fiction?
"A. I wouldn't call myself a writer, no, sir.
"Q. But you kept that book from the time you were incarcerated up until the time you were arrested. And you never worked on it again after you got out of prison?
"A. No, sir.
"Q. All right. It was just something you kept?
"A. Well, when I got out and we moved to Gadsden initially, I brought everything that I had with me, including furniture and things of that nature. So everything that I had, including the things that I brought home from prison with me, I just brought all that to Gadsden with me.
"Q. But this book of yours is a work of fiction. But everything you're testifying here -- now, you're telling us the truth today, aren't you?
"A. Yes, sir.
"Q. You know you're under oath and you're looking at these folks and you're going to tell them what happened that day, right?
"A. Yes, sir."
(R. 701-04.) McKinney contends that his "credibility was key to his self-defense claim" and that this line of questioning was an "irrelevant and improper attack on his credibility." (McKinney's brief, p. 19.)
Although it is not apparent from the quoted portion of the record, McKinney asserts in his brief that the book was a "fictional romance novel." (McKinney's brief, p. 18.) The trial court imposed the $50,000 fine on McKinney, in part, "to make sure there's no opportunity for Mr. McKinney to profit" from publishing a novel. (R. 900-01.) --------
McKinney is not entitled to relief on this issue. As the State notes, "[t]he obvious inference the prosecutor was trying to draw was that, if McKinney writes novels or other fiction, then his account of the murder of Mr. Jackson [was] also fiction .... Whether McKinney was telling the truth was very relevant and a proper subject for cross-examination." (State's brief, pp. 24-25.) See generally Wiggins v. State, 193 So. 3d 765, 805 (Ala. Crim. App. 2014) ("'Counsel is given wide latitude and has the right and duty to cross-examine vigorously a defendant who takes the stand in his own defense. "A [prosecutor] may ask a defendant ... questions tending to discredit [his] testimony, no matter how disparaging the question may be."' State v. Rush, 340 N.C. 174, 186, 456 S.E.2d 819, 826 (1995).").
The judgment of the circuit court is affirmed.
Windom, P.J., and Welch, Burke, and Joiner, JJ., concur. Kellum, J., concurs in the result, with opinion. KELLUM, Judge, concurring in the result.
Although I agree with the majority opinion insofar as it holds that any error in consolidating the two charges against William Dangelo McKinney was harmless, I cannot agree with the conclusion reached by the majority that consolidation was proper under Rule 13.3(a)(2), Ala. R. Crim. P., or the majority's interpretation of Goodman v. State, 611 So. 2d 446 (Ala. Crim. App. 1992).
In Goodman, the circuit court granted the State's motion to consolidate offenses on the same day it was filed "without giving notice, holding a hearing, or allowing the appellant to respond to the motion in any way." Id., at 447. This Court reversed the circuit court's order granting the motion, noting that "Rule 13.3(c), Ala. R. Crim. P., must be strictly observed" and holding that the circuit court "acted arbitrarily and denied the appellant his right to due process." Id., at 448. In so holding, the Court in Goodman did not make a distinction between an objection based on the merits of the consolidation and an objection based on the manner in which the motion to consolidate had been granted -- a distinction made by the majority opinion here. Indeed, the Court in Goodman noted that "a determination [could not] be made of whether the grounds set forth in support of the motion to consolidate and the underlying facts merited a hearing to satisfy the due process requirement." 611 So. 2d at 448.
In this case, the State's motion to consolidate was "bare bones." Regardless of what McKinney alleged in his response to the motion to consolidate, I question whether it was appropriate to grant the State's "bare-bones" motion to consolidate without a hearing three hours after the motion was filed. Although I agree that the facts set forth in Goodman are limited, I am not inclined to limit the holding of Goodman based on the reasoning set forth in the majority opinion. Furthermore, I do not believe that our opinion in Yeomans v. State, 898 So. 2d 878 (Ala. Crim. App. 2004), necessarily indicates that we are "backing away" from requiring strict compliance with Rule 13.3(c); in Yeomans the State did not file a motion to consolidate and the defendant did not object to the consolidation.
For these reasons, I concur in the result.