Byerly v. State, S-18-0033

• Court: United States State Supreme Court of Wyoming
• Citation: 455 P.3d 232
• Docket Number: S-18-0034,S-19-0088,S-19-0089,S-18-0285,S-18-0033,S-18-0284
• Parties: Mark Daniel BYERLY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 27 December 2019

455 P.3d 232

Mark Daniel BYERLY, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0033

S-18-0034

S-18-0284

S-18-0285

S-19-0088

S-19-0089

Supreme Court of Wyoming.

December 27, 2019

Representing Appellant: Christopher Lundberg, Spitzer Law, PLLC, Victor, Idaho

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Russell Farr, Senior Assistant Attorney General. Argument by Mr. Farr.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] A jury found Mark Byerly guilty of six offenses: aggravated assault and battery; domestic battery; strangulation of a household member; two counts of violating a protective order; and witness intimidation. He asserts numerous errors on appeal, but finding no grounds for reversal, we affirm.

ISSUES

[¶2] Mr. Byerly presents six issues on appeal, which we restate as follows:

1) Did the district court err in denying Mr. Byerly’s W.R.Cr.P. 33 motion for a new trial based on the State’s alleged failure to disclose exculpatory evidence?

2) Did the district court err in denying Mr. Byerly’s W.R.A.P. 21 motion for a new trial based on his several claims of ineffective assistance of counsel?

3) Did the State commit prosecutorial misconduct by vouching for the credibility of the victim and by failing to correct false testimony?

4) Did the district court err in joining charges against Mr. Byerly for trial?

5) Did the district court err in denying Mr. Byerly’s motion for a Daubert hearing on the testimony of the State’s domestic violence expert?

6) Did cumulative error warrant reversal of Mr. Byerly’s conviction?

[¶3] The State responds to those issues and presents the additional question of whether Mr. Byerly’s appeal should be dismissed for failure to comply with the Wyoming Rules of Appellate Procedure.

FACTS

[¶4] Mark Byerly met Michele Pickerill in 2011, and they dated off and on until August 2013. They began dating again in May of 2014, and they dated and lived together off and on until January 2016. On January 13, 2016, Ms. Pickerill broke up with Mr. Byerly. On January 19, she invited him over, and he stayed the night. The next day, they texted back and forth about getting together that evening for dinner, without alcohol, so they could discuss the future of their relationship.

[¶5] That evening, a friend of Ms. Pickerill’s invited her to join her and her husband for a drink to celebrate the friend’s birthday. She agreed and met them at a local bar where she drank beer and ate nachos. While there, Ms. Pickerill received a text message from Mr. Byerly telling her where he was and asking her to join him.

A. ... Mark texted and said, "I’m at The Moose, come over here." So I did, that was about 6:30, quarter to 7:00. When I went upstairs at The Moose all our ski friends were there, a group of guys. I could pretty much tell right away that Mark had had several.

Q. Several?

A. Beers, you know. After skiing, you know, four o’clock you start drinking. It was 6:30, seven o’clock by then. A mutual friend of ours bought me a beer and a shot because that’s what they were doing. Mark started to get a little agitated. My friend Kim and Josh her boyfriend showed up. She finished work at 7:00.

Q. I’m going to stop you and back you up a little bit. Do you know what caused [him] to get agitated?

A. I don’t recall what was said that started him getting mad at me.

Q. Okay. Please continue.

A. Stood in the group of friends talking. Mark was saying some pretty nasty things to me again. I was like, "You know, we’re not talking tonight. We’re not going to dinner. I’m leaving. We’re done. I don’t need this."

Was attempting to leave when he said, "No, you’re not going anywhere."

By then Kim and Josh had shown up. Kim could tell by the look on my face that I wasn’t happy. Mark was standing to my left and he had his hand on my back, holding my shirt. Kim looked at me and said, "Do you want to go?"

And I said, "Yeah."

And Mark in my ear said, "You’re not fucking going anywhere."

So, Kim and Josh left. Like, we gave her an opportunity to leave and she’s not going, we’re out. They left. One by one all the ski buddies left. Mark at one point had me by my collar, shaking me, just the usual yelling, you know, stuff that he does. At one point I looked over his shoulder and saw the bartender and gave the bartender a look like could you help me out here. He looked the other way.

Finally Mark let go and I proceeded to leave. By the time I got downstairs and made it out the front door of The Moose I felt Mark grab my elbow. He walked me out the front door.

[¶6] Mr. Byerly and Ms. Pickerill argued in the parking lot, and Mr. Byerly grabbed her by the collar again and shook her. Ms. Pickerill then saw four people walking through the parking lot some distance from them and yelled to them for help.

That really pissed him off so he put his hand over my mouth and spun me around real quick and from behind he walked me over to a snowbank and threw me down. I don’t know if it was his knee, hand, what he had on my back, but he held me in the snowbank, I don’t know, ten seconds. And I felt this is it, I want to go [sic] too far. He’s probably going to fucking kill me now and my kids are going to be real upset with me. I didn’t get out soon enough.

I thought he was going to kill me. When I tried to breathe I couldn’t breathe anything but snow. The entire time my head was in the snowbank he’s screaming, "You fucking bitch, you don’t understand how much I fucking love you, Michele. You just don’t know how much I fucking love you."

I thought you’ve got to be kidding me, you fucking love me and you’re trying to kill me. He finally let go and I got up. He started walking to his truck and I started running the other way and turned around and said, "Don’t you ever fucking come near me again," and ran.

[¶7] Three days later, on January 23, 2016, Ms. Pickerill reported the January 20 incident to law enforcement. On January 25, 2016, she completed an application for an order of protection against Mr. Byerly, and on February 9, 2016, following an evidentiary hearing, an order of protection was entered. On July 8, 2016, the State filed a criminal information against Mr. Byerly, followed by an amended information on July 12, 2016. As amended, the information charged Mr. Byerly with the following ten offenses, which we summarize as follows:

Count 1: Domestic Battery. This charge was based on abuse that was alleged to have occurred on May 6, 2015. Ms. Pickerill alleged that she met Mr. Byerly for a couple of beers, and then he came to her home and they argued. She further alleged that during the argument, he tore her bed apart, threw things, and grabbed her by the wrists and shook her so hard that her head hit the floor ten to twelve times.

Count 2: Property Destruction. This charge stemmed from the Count 1 incident and alleged damage to a lamp during the incident.

Count 3: Domestic Battery. This charge was based on abuse that was alleged to have occurred on July 25, 2015. Ms. Pickerill alleged that Mr. Byerly picked her up from paddle boarding, they went to dinner, and then got into an argument on the way home. She further alleged that he pulled his truck into a parking area on Adams Canyon Road, and once out of the truck, he chased her around it, threw her belongings out and at her, and eventually started throwing rocks at her.

Count 4: Domestic Battery. This charge was based on abuse that was alleged to have occurred on August 12, 2015. Ms. Pickerill alleged that while she was having dinner with Mr. Byerly at a brewpub, they began to argue and he was kicked out of the restaurant. She further alleged that after she had their food boxed and paid the bill, she went out to her vehicle and found Mr. Byerly waiting for her. She alleged that he threw the food at her and threw her against the vehicle, causing her to hit her head.

Count 5: Aggravated Assault and Battery. This charge was based on abuse that was alleged to have occurred on October 11, 2015. Ms. Pickerill alleged that after she spent the day goose hunting with Mr. Byerly, they drank beer on the way home, and once home they got into an argument. She further alleged that the argument escalated, and he threw her cell phone at her, and it hit her sloped bedroom ceiling. She alleged that he then jumped on top of her, threw coconut oil all over her and her bedroom, and that while he was holding onto her and squeezing her face, she bit him. She alleged that he responded by hitting her across the side of her head, which caused a perforated eardrum

on her left side, a temporary loss of hearing, and persistent jaw pain.

Count 6: Property Destruction. This charge stemmed from the Count 5 incident and alleged damage to Ms. Pickerill’s bedroom ceiling where the cellphone hit it, and damage to the carpet from the coconut oil.

Count 7: Domestic Battery. This charge was based on abuse that was alleged to have occurred on January 13, 2016. Ms. Pickerill claimed that on that evening, she and Mr. Byerly were at a brewpub with friends, and he offended her by kissing another woman. She further alleged that she left the brewpub and told him not to come to her home that evening, but he did anyway. She alleged that he came to her bedroom, where they argued, and he grabbed her by the wrists and shook her, which caused her pain.

Count 8: Domestic Battery. This count is based on the events of January 20, 2016 at the Mangy Moose.

Count 9: Strangulation of a Household Member. This count is also based on the events of January 20, 2016 at the Mangy Moose.

Count 10: Violating an Order of Protection. This count alleged that on or about April 5, 2016, Mr. Byerly violated the order of protection by indirectly communicating with Ms. Pickerill. Ms. Pickerill claimed that Mr. Byerly left boxes of items with his attorney that purportedly belonged to Ms. Pickerill, but instead contained items meant to...