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Midgette v. Commonwealth

Court of Appeals of Virginia

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 Argued at Norfolk, Virginia



         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 ...

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