Tyler v. Commonwealth

• Decision Date: 02 August 2022
• Docket Number: 0888-21-1
• Parties: KEVIN TYLER v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

KEVIN TYLER
v.
COMMONWEALTH OF VIRGINIA

No. 0888-21-1

Court of Appeals of Virginia

August 2, 2022

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge

Kristin Paulding (7 Cities Law, on brief), for appellant.

Mason D. Williams, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Athey and Chaney Argued at Norfolk, Virginia

MEMORANDUM OPINION ^[*]

CLIFFORD L. ATHEY, JR. JUDGE

Kevin Tyler ("Tyler") appeals his conviction in the Circuit Court of the City of Norfolk ("trial court") for strangulation. On appeal, Tyler argues that the prior testimony of the victim was erroneously admitted and that the evidence was insufficient to convict him of strangulation. For the following reasons, we affirm.

I. Background

On appeal, "[w]e . . . view the evidence in the light most favorable to the prevailing party, the Commonwealth, with all inferences fairly deducible from that evidence accorded to the Commonwealth." McArthur v. Commonwealth, 72 Va.App. 352, 359 (2020) (citing Hill v. Commonwealth, 297 Va. 804, 808 (2019)).

Tyler was accused of committing domestic violence against Tishayla Moore ("Moore"), his ex-girlfriend who was pregnant with their child. Tyler's trial, initially scheduled for January

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27, 2021, on charges of strangulation, abduction, and attempted malicious wounding of a pregnant woman, was continued to March 4, 2021. Although subpoenas were issued for the new trial date, the new date apparently never made it onto the trial court's docket. As a result, the trial was continued again to March 17, 2021. Moore was subpoenaed again but failed to appear for either of the continued trial dates. When several witnesses failed to appear on the March 17 trial date, the trial court suggested that her failure to appear at the March 17 trial date may have resulted from faulty service of the subpoena, but later found that the Commonwealth had posted service for every trial date.^[1] The Commonwealth proffered that Moore indicated in her last conversation with the Commonwealth that she was planning to continue cooperating and appearing in court as a witness, but following that conversation the Commonwealth had been unable to contact her. The Commonwealth further proffered that it had made several calls to Moore's phone but only secured "a busy signal or a message that it was unable to receive the call." It had also filed a domestic violence information request to try to locate her.

Based on this information, the trial court continued the trial again to April 5, 2021. The Commonwealth posted service to Moore's last known residence, sent police officers to her last known residence to attempt to see if she still lived there, called the phone number it previously used to communicate with Moore, reached out to victim's advocates for information on her whereabouts, and requested that investigators check their databases for any updated contact information-all to no avail. Before the April 5 trial date, fearing Moore would be unavailable to testify, the Commonwealth filed a motion to admit the transcript of Moore's testimony from the preliminary hearing. The Commonwealth asserted in its motion that it had made "numerous

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attempts to locate this witness without success" through "victim witness advocates, the prosecutor, and through the Commonwealth investigators."

Tyler opposed the motion, arguing that the Commonwealth's attorney had failed to show that Moore's social media had been checked, or that any attempt had been made to contact Moore through an individual who had accompanied her to the hospital (whose name and phone number were available through the 911 transcript) or through Moore's mother. The defense also criticized the police for only attempting to contact Moore at her home once and the Commonwealth for not even knowing what time of day the police had gone to her residence. The Commonwealth responded that a previous attempt to contact her that way had been successful in that it had prompted Moore to contact the Commonwealth shortly thereafter. The Commonwealth further proffered that it was unaware of anything that would have indicated Moore was "going to withdraw her cooperation." Tyler also raised a Confrontation Clause argument, disputing whether Moore had been adequately cross-examined at the preliminary hearing. The trial court took the issue of admission of the preliminary hearing testimony into evidence under advisement and proceeded to trial.^[2] Neither the Commonwealth nor Tyler requested a continuance of the trial to permit further attempts to secure the witness's presence at the trial.

In the transcript of Moore's prior testimony at the preliminary hearing, she testified that she and Tyler argued one night because she wanted to break up with Tyler. She was six months pregnant with his child at the time. She further testified that the next day, while she was talking to a friend on her phone, Tyler came into the room, got mad, hit her, punched her in the stomach four times, and choked her for about one minute. She also testified that she could "not really"

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breathe and demonstrated how he had choked her by placing "her hand around the front of her throat." She said that she tried to speak to Tyler while being choked, but she could not; nevertheless, at some point she screamed for help. She further stated that while he was punching her, he said she was going to have a miscarriage. Eventually, she escaped to a friend's house and called the police, but only after Tyler initially refused to let her leave.

Moore also identified several exhibits introduced at the preliminary hearing. Those exhibits included photographs of her injuries, which she testified were accurate and showed bruising and scratches on her chest. They also included photographs of texts from Tyler indicating he tried to apologize and wanted to give up his parental rights in exchange for her dropping the charges. Moore also testified that she had marks and bruises on her neck.

Following opening statements, the Commonwealth called Detective Joshua Miller ("Detective Miller") who testified that he was called to DePaul Hospital to investigate potential domestic violence. Detective Miller interviewed Moore at the hospital and said that she was "confused," "sad," and "out of it." Although defense counsel objected when Detective Miller testified to some of what Moore told him, it later came out during cross-examination-without objection from either side-that Moore told Detective Miller that Tyler strangled her, punched her in the stomach more than six times, and said he would "cause her to have an abortion." Detective Miller also said that he saw irritation on her belly that a photograph would not have accurately captured or portrayed. Lastly, he testified that Moore told him that Tyler had prevented her from leaving the apartment.

Detective Miller also noticed "some scratches around her neck, on her chest, and that's basically it," before taking several photographs that were...