Midgette v. Commonwealth

• Citation: 819 S.E.2d 840,69 Va.App. 362
• Decision Date: 30 October 2018
• Docket Number: Record No. 1692-17-1
• Parties: Marvin Kendell MIDGETTE v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

69 Va.App. 362

819 S.E.2d 840

Marvin Kendell MIDGETTE

v.COMMONWEALTH of Virginia

Record No. 1692-17-1

Court of Appeals of Virginia, Norfolk.

OCTOBER 30, 2018

T. Gregory Evans, Assistant Public Defender, for appellant.

David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE MARY BENNETT MALVEAUX

Marvin Kendell Midgette ("appellant") was convicted of perjury, in violation of Code § 18.2-434. On appeal, he argues that the trial court erred in finding that collateral estoppel did not bar his perjury prosecution, as the issue of the accuracy and authenticity of a video and appellant’s testimony regarding it was already determined in a prior proceeding. Further, he contends that the trial court erred in allowing an expert witness to testify as to an ultimate issue in the case. For the following reasons, we affirm.

I. BACKGROUND

The Traffic Stop

On the morning of April 13, 2015, Officer Clifford Hagen of the Virginia Beach Police Department was monitoring traffic at the intersection of Ferrell Parkway and Indian Lakes Boulevard. Where Hagen was stationed, the road had four lanes—one left turn lane, two straight travel lanes, and one right turn lane. While Hagen was sitting in the left turn lane of Ferrell Parkway he saw appellant drive through a red light in the left straight travel lane. Hagen saw that the light was "clearly red" before any part of appellant’s vehicle crossed into the intersection. At approximately 8:02 a.m., Hagen stopped appellant. Hagen testified that at no time before the traffic stop was he in the same lane as appellant.

During the traffic stop, appellant was polite, but "wanted to debate the situation." Appellant told Hagen that he thought the traffic light was yellow. Appellant asked Hagen how he could see the traffic signal due to the sun and without his sun visor down. Appellant wanted to get out of his vehicle to look at the intersection. Hagen told him that he could do that after the traffic stop concluded, but advised it was not a good idea due to the heavy traffic. Appellant asked Hagen if he had a camera in his vehicle, and Hagen told him that he did not.

The Traffic-Infraction Trial

Appellant was found guilty of disregarding a red light in the general district court. He appealed his conviction to the circuit court, where the case was set for trial on August 6, 2015. However, on that date, appellant notified the circuit court that he had "existing video evidence that he did not have with him that he wanted to introduce" at trial. The case was continued to September 3, 2015.

During the September 3 traffic-infraction trial in the circuit court,¹ appellant testified that the light was yellow when he drove through it. He also testified that Hagen was following behind him in traffic. During appellant’s cross-examination of Hagen, appellant asked him, "Didn’t I ask you to look at my video when we were out there? Why wouldn’t you look at my video?"² At appellant’s perjury trial, Hagen did not recall that appellant had asked him to look at a video during the traffic stop.

Appellant entered into evidence a video on a flash drive for the court to review. The video purported to depict the traffic stop at issue. The video showed appellant travel through a green light at the intersection of Ferrell Parkway and Indian Lakes Boulevard. Hagen informed the court that he thought that appellant’s video was not accurate.

Gerald Harris, the assistant Commonwealth’s attorney who prosecuted appellant’s circuit court traffic-infraction trial, testified at appellant’s perjury trial that appellant had elected to testify and was placed under oath prior to his testimony. Harris was alerted to a possible issue with the video’s authenticity by Hagen, who tried to object to the video. Harris began to think that there was "something curious" about the video from Hagen’s perspective. Because of this potential issue, Harris specifically asked appellant if the video depicted "what happened on that day truly and accurately," and appellant responded in the affirmative. Harris also thought it was odd that the video included audio of appellant claiming that the traffic light was yellow, when the video depicted appellant driving through a green light. Harris questioned appellant about this apparent discrepancy, and appellant stated that the light was "green all the way up until [appellant] got underneath it and then it must have turned yellow." Harris also asked appellant if he understood that he was under oath, to which appellant responded affirmatively.

During the perjury trial, after appellant’s counsel had Hagen read testimony from the preliminary hearing for the perjury charge, counsel asked Hagen if the judge presiding over the traffic-infraction trial had stated that "he had to go with the evidence before him." Hagen replied, "Yes. He was informing me that he was looking at the video and he had to go by the video." The judge also told Hagen that it was "no reflection on [Hagen’s] credibility as an officer."

At the conclusion of the traffic-infraction trial, the court found appellant not guilty of disregarding a red light. However, the court ordered that the flash drive be held in evidence "to be examined for accuracy." Appellant protested and repeatedly asked for the flash drive to be returned to him. The flash drive was admitted into evidence and then placed in the circuit court clerk’s office. A search warrant was issued for the flash drive, and a Virginia Beach police officer took possession of it.

The Perjury Trial

At appellant’s perjury trial, the Commonwealth played the video that appellant had presented at the traffic-infraction trial. Hagen testified to inaccuracies concerning the traffic stop that he saw in the video. Hagen stated that the audio on the video was accurate as to his recollection of the traffic stop, but was "cut off at the end before [their] dialogue was complete." He further testified that images in the video were accurate as to the time period after he had stopped appellant, but were not accurate as to events that had occurred before the traffic stop. Hagen noted several inaccuracies in the video’s depiction of the events prior to the stop: the video showed appellant driving through a green traffic signal; Hagen’s police vehicle was not observable in the video, when it should have been visible in the left turn lane; the video depicted appellant driving in the right straight travel lane, when Hagen recalled appellant driving in the left straight travel lane adjacent to the turn lane; the traffic depicted in the video was lighter than the weekday morning work traffic; the video showed the sun too high in the sky for 8:02 a.m.; and Hagen recalled appellant driving at a much faster speed than was shown in the video.

Sergeant Ryan Jason, a member of the Virginia Beach Police Department Computer Crimes Unit, was qualified at trial as an expert in computer forensics, and his report of the analysis of appellant’s flash drive was entered into evidence.

Jason discovered two relevant video files on appellant’s flash drive. The files, which were titled "New Project MDCar Cam" and "Car Mobile Cam 2," had "two very distinct hash values." Jason explained that a file’s hash value was "essentially a digital fingerprint which identifies the fact that no contents have been changed between point A and B."

Jason testified that "New Project MDCar Cam," the video played during appellant’s September 3, 2015 traffic-infraction trial, was placed on the flash drive on September 3, 2015, at 9:22 a.m. Its metadata revealed that the file was also created on September 3, 2015, at 9:22 a.m.³ The video was thirteen minutes long. During the first minute and a half, its audio was "very muted" before "just cut[ting] in immediately right around that one minute, thirty-second mark." Jason explained:

[W]hen I separated the audio from the video you could see a flatline for approximately the first minute and thirty seconds of the video itself ... which is important.... [W]hen you have a microphone in a car you’re going to get road noise. You’re going to get air noise across the microphone. Both of those are going to cause some anomalies.

Jason also noted that the video panned around "quite a bit," and in some instances the video displayed the rearview mirror and at other times it displayed the hood of the vehicle. At some point during the video, it panned upwards toward the sky where the sun was located, "like if ... the recording device was used to pan up and down." Jason noted that the title "New Project" is a name often used by software programs when a project is created from an existing project and "work[ed] on ... to produce a final edit." He stated that it would be an unusual name for a direct transfer of a dash camera video, as "most users would just copy and paste and wouldn’t change the file name."

The second video, "Car Mobile Cam 2," had been saved on appellant’s flash drive on September 3, 2015, at 8:28 a.m. Its metadata revealed a creation date of August 6, 2015, at 10:57 a.m. Jason noted that the video was approximately thirteen minutes long but would only play for approximately six and a half minutes. The audio would start to play immediately, but at the minute and a half mark, there was a "bit of audio distortion" where the sound went from a "little bit of audible noise to a flatline" before becoming audible again.

Following this testimony, the Commonwealth asked Jason, "Based on everything that you’ve observed while you were conducting your analysis were you able to form an opinion on whether this video is accurate and unaltered?" Counsel for appellant objected, arguing that the Commonwealth was asking Jason to give an opinion on one of the ultimate issues in the case. The Commonwealth responded that the ultimate issue was whether appellant committed perjury and that it was not asking Jason to testify as to...