Tyler v. Commonwealth

73 Va.App. 445

861 S.E.2d 79

Daryl O. TYLER, Petitioner,

v.COMMONWEALTH of Virginia, Respondent.

Record No. 0838-20-1

Court of Appeals of Virginia.

August 10, 2021

Upon a Petition for a Writ of Actual Innocence

Daryl O. Tyler seeks a Writ of Actual Innocence pursuant to Chapter 19.3 of Title 19.2 of the Code of Virginia. In March 2017, following a bench trial, the Circuit Court of Gloucester County convicted Tyler of misdemeanor assault and battery and felony strangulation. By final order of May 26, 2017, the trial court sentenced Tyler to five years in prison for the strangulation and twelve months in jail for the misdemeanor assault and battery.

In his July 22, 2020 petition, Tyler asserts that he is actually innocent of strangulation.¹ He specifically contends that he is entitled to relief based on the affidavit of a non-testifying witness who was present during the "physical altercation" from which Tyler's conviction arose and now avers that he did not see Tyler "strangle or choke" the victim. Tyler's petition also includes a newspaper report that, in May 2020, the victim was indicted on a charge of malicious wounding for an unrelated incident that occurred in December 2019. The Attorney General filed a response to the petition and Tyler, represented by counsel, has filed a reply. After considering the parties’ arguments and the entire record, we conclude that Tyler is not entitled to a writ of actual innocence.

BACKGROUND

On the night of September 29, 2016, Craig Berry ("Craig"), Rogdrick Berry ("Rogdrick"),² and Tyler picked up Carmella Rosell from her residence. Craig was driving, Tyler was in the front passenger seat, and Rogdrick and Rosell were in the back seat. The group planned to go to a strip club but first stopped at Wawa on the way to use the ATM.

At Wawa, Craig and Rogdrick went into the store while Tyler and Rosell stayed in Craig's truck. According to Rosell, Tyler propositioned her.³ When she rebuffed his advances, Tyler offered Rosell money to have sex with him. Craig and Rogdrick then returned to the truck, and the four proceeded to a 7-Eleven. At 7-Eleven, Tyler got out of the truck to speak with friends in the parking lot. While Tyler was out of the truck, Rosell told Craig and Rogdrick of Tyler's advances and stated that she was uncomfortable in his presence. Craig, Rogdrick, and Rosell then decided to tell Tyler (falsely) that they intended to go home and would drop him off. Rosell stated that Craig and Rogdrick tasked her with telling Tyler that they were going home. Upon hearing this, Tyler "freaked out" and began yelling, accusing the group of lying to him.

Tyler asked to be taken to a friend's house and once there, Craig parked in the driveway. Tyler got out and disappeared briefly, but soon returned to the truck and got back in. Tyler was upset and asked to be driven to another location. Tyler and Craig began arguing, and Tyler grabbed the keys from the ignition. When the altercation between Craig and Tyler "escalat[ed]," Rosell "got in the middle and tried to ... push both of them apart." Tyler responded by hitting her with his fists, "tr[ying] to choke" her, and biting her. Rogdrick tried to "crawl across" Rosell to stop Tyler from hitting her. Rogdrick then pulled her out of the truck to try to stop the attack, but Tyler got out and resumed punching Rosell in the face.

Rosell got back into the truck and attempted to use Rogdrick's cell phone to call the police. Tyler climbed on top of her and attempted to grab the phone, and she let him take it to prevent it from breaking. When Tyler grabbed the phone, he had his other hand on Rosell's neck and "was pulling [her] neck back." Because Rosell was lying on her stomach, she could feel her "bone straining in the back of [her] neck" and could not "breathe at all." While Tyler was choking her, she felt dizzy and believed that she "was going to die that night." Rosell eventually was able to get Tyler's hand off her neck.

After the altercation, Craig dropped Tyler off at his sister-in-law's house and then drove Rosell and Rogdrick to the Gloucester County Sheriff's Office.⁴ Rosell reported the assault to Deputy Dylan Moore, who took verbal and written statements from Rosell, Craig, and Rogdrick. Moore also photographed Rosell's injuries; the photographs, which were admitted into evidence at Tyler's trial, depicted bruises on Rosell's face, marks on her throat and neck, a bite mark on her arm, and a broken shirt strap. Rosell went to the hospital a week later because she thought her jaw might be dislocated and she "had been having problems with the back of [her] neck."⁵ Rosell continued to suffer from frequent headaches and had difficulty talking and eating for approximately two weeks after the attack.

Craig and Tyler, testifying for the defense,⁶ gave a materially different account of the altercation. Craig denied that he and Tyler had had an "argument"; rather, Tyler took the truck keys because "he didn't want to go home" but Craig wanted to leave because he had to work the next morning. Rosell then told Tyler to return Craig's keys. Tyler and Rosell then got "into a little argument" and the next thing Craig knew, Rosell, Tyler, and Rogdrick had exited the truck and Tyler and Rosell got into "a fist fight." Tyler hit Rosell "once or twice," and she also hit him. After the fight was over, "[t]hey got back in the truck and [they] left."

Craig testified that he never saw Rogdrick lay on top of Rosell to shield her from Tyler. Craig also stated that Tyler never choked or strangled Rosell during the fight. According to Craig, Rosell threatened to press charges against Craig if he did not take her to the sheriff's office. Craig stated that his motivation in taking Rosell to the sheriff's office and making a statement was to get home and go to bed because he had to work the next morning.

On cross-examination, Craig confirmed that he had provided the sheriff's office with a written statement relaying that Tyler "started beating the young girl for no reason at all," and that Craig did not tell Deputy Moore that Rosell threatened to press charges against him if he did not take her to the sheriff's office. Craig also confirmed that Tyler was his cousin.

According to Tyler, when the group arrived at his friend's residence, they all still planned to go to the strip club; he and Craig also intended to go to a "get-together" after the strip club. Tyler and Craig then got into a "little argument," and, after Craig got upset, Tyler took the keys out of the ignition and told Craig he would "give [him] [his] keys in a minute." At that point Rosell, who was in the back seat, grabbed Tyler's neck, hit him, and cut his arm with what he thought was a knife. After he "jumped out of the car" to get away from Rosell, she came out after him, grabbed him, and told him that he was "better than this." Tyler responded that Rosell was "crazy."

Tyler stated that, to the extent he struck Rosell, he did so in self-defense. He categorically denied strangling or choking her and denied, in contradiction to Craig's testimony, hitting her with his fists.⁷ When Tyler learned that there was a warrant for his arrest, he turned himself in to the authorities. On cross-examination, Tyler confirmed that he had asserted in his written statement to law enforcement that Craig had attacked him, but he contended that his testimony on direct examination was substantially consistent with his written statement.

Rogdrick did not testify at the trial. In arguing Tyler's motion to strike after the close of all the evidence, defense counsel stated that the defense "[did not] know where Rogdrick" was and did not know how to find him, but did not explain what steps had been taken to locate Rogdrick. Defense counsel also stated, without elaboration, that he had to "track ... down" Craig to secure his testimony. Trial counsel did not ask for a continuance to allow him additional time to locate Rogdrick. In addition to arguing that the trial court should not credit Rosell's testimony that Tyler had strangled her, Tyler asserted that any physical contact with Rosell was in self-defense.

The trial court convicted Tyler on both counts "[c]onsidering the relative size of [Tyler] and [Rosell] and the photographs of the injuries as well as the credibility of the witnesses ...." Tyler moved to set aside the verdict and for a new trial, arguing that the trial court's ruling excluding Branch's testimony improperly denied him the ability to fully impeach Rosell's credibility. The trial court denied the motion, explaining that it had heard the testimony of the witnesses, "considered all the credibility," and would have reached the same conclusion if it had considered the proffered impeachment evidence.

Tyler appealed his convictions to this Court, where he asserted that the evidence was insufficient to support the verdict and that the trial court abused its discretion by excluding the proffered testimony attacking Rosell's reputation for truthfulness. This Court denied Tyler's petition for appeal, Tyler v. Commonwealth, No. 0923-17-1 (Dec. 15, 2017), and the Supreme Court of Virginia refused further appeal, Tyler v. Commonwealth, No. 191040 (Feb. 24, 2020).

PETITION FOR A WRIT OF ACTUAL INNOCENCE

In support of his claim of actual innocence, Tyler proffers Rogdrick's statements in an affidavit attesting that Rogdrick never saw Tyler choke Rosell during the altercation on the evening of September 29, 2016. He also relies upon a newspaper report that Rosell was indicted in May 2020 for malicious wounding in an unrelated incident that occurred in December 2019. Tyler argues that this evidence, taken with all the other evidence in the record, shows that no rational trier of fact would have convicted him of strangulation. He also contends that the evidence presented at trial was insufficient to support his conviction for strangulation.⁸

As directed by this Court, the Attorney General filed a response to the petition on...