COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
ANTHONY ERNEST WHITE
v. Record No. 2136-94-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Maureen L. White (David J. Johnson, Public
Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Anthony Ernest White appeals his convictions on two counts
of malicious wounding, two counts of the use of a firearm in the
commission of a malicious wounding, one count of grand larceny,
and one count of possession of a firearm after having been
convicted of a felony. White contends that the trial court erred
by denying his motion for a transcript at state expense of his
first trial, which ended in a mistrial; by admitting into
evidence a 9mm handgun and expert testimony regarding the gun;
and by failing to strike the evidence as to the grand larceny
charge. We hold that the trial court did not commit reversible
error and we affirm the defendant's convictions.
I. Transcript
After the defendant's first trial was declared a mistrial
because the jury was deadlocked, the trial court scheduled a
second trial for September 28, 1994. On September 23, 1994, the
defendant, an indigent, filed a motion for the court to provide
him a transcript of the first trial. On September 26, the trial
judge heard and denied the motion, stating, "the Court of Appeals
might reverse me but I don't [provide transcripts at state
expense] because if he were paying his own way he probably
wouldn't have it done. If there is some conflict, material
conflict, in the evidence which [the defendant] point[s] out, the
Court Reporter will be here with her notes, so she can check her
notes and find out." In addition, the trial judge stated that,
"I think the motion comes late . . . I just don't think a normal
person could write that up that fast."
"[A]bsent a showing of good cause for delay, a defendant may
waive his right to a copy of mistrial transcripts if he does not
timely request them so as to avoid disruption of the subsequently
scheduled trial." United States v. Talbert, 706 F.2d 464, 470
(4th Cir. 1983). Here, the defendant moved the court for a copy
of the transcript five days before the second trial was scheduled
to begin; the hearing on the motion was held two days before
trial. The record does not indicate a reason for the delay, nor
does it show that the trial judge determined whether the court
reporter had time to prepare a transcript before the second
trial. Therefore, the record does not establish that granting
the request would have disrupted the scheduled trial. Moreover,
the trial judge indicated that he denied the transcript because,
- 2 -
in his judgment, a non-indigent defendant would not have
requested the transcript and because the court reporter's notes
would be available and would be an adequate substitute for the
transcript. Accordingly, we hold that the defendant made a
timely motion for a transcript of the first trial.
The state must, as a matter of equal protection, provide an
indigent defendant with the basic tools of an adequate defense,
and there is no doubt that "the [s]tate must provide an indigent
defendant with a transcript of prior proceedings when that
transcript is needed for an effective defense." Anderson v.
Commonwealth, 19 Va. App. 208, 211, 450 S.E.2d 394, 395-96 (1994)
(quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)). "In
determining whether a defendant needs a free transcript, two
factors are relevant: `(1) the value of the transcript to the
defendant in connection with the appeal or trial for which it is
sought, and (2) the availability of alternative devices that
would fulfill the same functions as a transcript.'" Id. at
211-12, 450 S.E.2d at 396 (quoting Britt, 404 U.S. at 227).
In Britt, the Supreme Court noted that the value of a
transcript from the first trial "can ordinarily be assumed," and
that it is not necessary for a defendant to show "particularized
need." Id. at 228. Moreover, the Court expressed "doubt that it
would suffice to provide the defendant with limited access to the
court reporter during the course of the second trial." Id. at
229. In Anderson, we noted that "the alternative [of] . . .
- 3 -
reference to the notes of the court reporter at the first trial
when a possible conflict in testimony arose during the second
trial, was not the substantial equivalent of a transcript."
Anderson, 19 Va. App. at 213, 450 S.E.2d at 396-97 (quoting
Turner v. Malley, 613 F.2d 264, 267 (10th Cir. 1979)); see also
United States v. Devlin, 13 F.3d 1361, 1364 (9th Cir. 1994)
(holding that "ask[ing] the court reporter to read back relevant
portions of the suppression hearing at trial" is not an adequate
substitute for the transcript); United States ex rel. Wilson v.
McMann, 408 F.2d 896, 897 (2d Cir. 1969) (holding that limited
access to court reporter during second trial constitutes "a case
of too little and too late"). But see United States v. Tyler,
943 F.2d 420, 423 n.4 (4th Cir.) (stating, in dicta, that access
to court reporter is probably not limited when the trial court
interrupts the trial to allow the defendant to examine the
reporter's notes), cert. denied, 502 U.S. 1008 (1991).
Here, the trial judge stated prior to trial that he would
instruct the court reporter to have the notes from the first
trial available during the second trial in the event material
conflicts in testimony developed. This limited access to the
reporter's notes did not enable the defendant to use the notes
prior to trial in preparation of "an effective defense." As to
whether a court reporter's notes might be a sufficient
alternative to a transcript, the Supreme Court observed in Britt
that "[i]t appears that the reporter would at any time have read
- 4 -
back to counsel his notes of the mistrial, well in advance of the
second trial." 404 U.S. at 229 (emphasis added). However, in
the present case, in order for counsel to identify material
conflicts in the testimony presented at the second trial, she
would have had to rely upon her memory or personal notes of the
first trial. In this vein, the Supreme Court stated, "We have
repeatedly rejected the suggestion that in order to render
effective assistance, counsel must have a perfect memory or keep
exhaustive notes of the testimony given at trial." Id. Under
the circumstances of this case, having the court reporter's notes
available at trial was not a sufficient alternative to providing
the defendant a transcript. We hold, therefore, that the trial
judge erred in failing to order a transcript or in determining
whether a transcript could have been provided without disrupting
the trial schedule.
Although the trial judge erred by denying the defendant's
request for a copy of the transcript, we must determine whether
the error was harmless. See Tyler, 943 F.2d at 423.
"Constitutional error . . . is harmless only when the reviewing
court is `able to declare a belief that it was harmless beyond a
reasonable doubt.'" Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (quoting Chapman v. California,
386 U.S. 18, 24 (1967)).
The defendant contends that Yvette Washington's testimony at
the second trial was more specific than her testimony at the
- 5 -
first trial. For instance, he alleges that Washington was more
specific about how many times the defendant visited her apartment
on the night of the crimes, and she testified that the defendant
told her that he had been in a scuffle with two "officers" as
opposed to two "people." Furthermore, the defendant notes that
Washington did not testify at the first trial that she saw the
defendant holding what appeared to be a gun clip.
Nevertheless, even had the purported discrepancies in
Washington's testimony been considered sufficient to impeach
her, 1 the other evidence of the defendant's guilt is
overwhelming. See Harrington v. California, 395 U.S. 250, 254
(1969); Schrum v. Commonwealth, 219 Va. 204, 213, 246 S.E.2d 893,
899 (1978); see also State v. Brown, 293 S.E.2d 569, 578 (N.C.),
cert. denied, 459 U.S. 1080 (1982). Both Officers Niedhammer and
Hockman positively identified the defendant as the person who
shot them. Officer Niedhammer testified that after his scuffle
with the defendant, his handgun was missing. Latonya Alexander
testified that on the night of the shooting she heard a gunshot
and rushed to her window, whereupon she saw the defendant and two
white men beside a car. According to Alexander, the defendant
turned around and she saw "fire come out [of] the gun" he was
1
Defense counsel specifically questioned Washington about
her failure to mention the gun clip at the first trial, which was
the most significant discrepancy in her testimony. Therefore,
although the court reporter's notes were not a sufficient
alternative device to the transcript, they did serve to mitigate
the prejudice that resulted from the denial of the defendant's
equal protection right to the transcript.
- 6 -
holding. Brenda Brinkley testified that the defendant came to
her apartment in the early morning hours of March 17 and asked
her to arrange an exchange of a 9mm gun for cocaine with a group
of people who lived across the street from Brinkley. Brinkley
arranged the exchange, and the defendant went across the street
and returned a few minutes later with cocaine. The next morning,
she retrieved a 9mm gun from the neighbors with whom she had
arranged the exchange, and gave the gun to the police. The
Commonwealth subsequently determined that the gun Brinkley
retrieved was Officer Niedhammer's gun and that it was the gun
used in the shootings.
Although the first trial resulted in a hung jury, the record
does not suggest that any "significant conflicts in the evidence"
existed. Schrum, 219 Va. at 213, 246 S.E.2d at 899. Based upon
our examination of the record, the trial judge's error in failing
to provide the defendant with a copy of the transcript from the
first trial was, in this instance, harmless beyond a reasonable
doubt.
II. Handgun and Expert Testimony
The defendant, citing Stevenson v. Commonwealth, 218 Va.
462, 237 S.E.2d 779 (1977), contends that the trial judge erred
by admitting into evidence Officer Niedhammer's 9mm handgun. He
contends that the evidence identifying it as having come from the
defendant was inadmissible hearsay, and thus, that the expert
testimony regarding the gun was admitted without proper
- 7 -
foundation. The defendant asserts that Brenda Brinkley's
testimony that she retrieved the gun from her neighbors was
hearsay because it necessarily included the neighbors' implied
assertion that the gun given to Brinkley was the handgun given
them by the defendant in exchange for cocaine.
In Stevenson, a police officer testified that he went to
Stevenson's residence in Maryland and asked Stevenson's wife to
retrieve the clothing her husband wore the day of the murder.
She gave clothing to the officer. Id. at 464, 237 S.E.2d at 781.
The Supreme Court held that the officer's testimony concerning
Mrs. Stevenson's conduct "was intended as a nonverbal assertion
for the purpose of showing that the shirt not only belonged to
Stevenson but was in fact worn by him on the day of the crime."
Id. at 465, 237 S.E.2d at 781-82. The Court held that testimony
concerning the wife's conduct in response to the request was
hearsay and that admission of both "the shirt and the result of
the scientific tests conducted thereon was without proper
foundation." Id. at 466, 237 S.E.2d at 782.
The holding in Stevenson does not control this case. In
Stevenson, the wife's conduct in response to the officer's
request for the shirt Stevenson was wearing "formed the basis of
the Commonwealth's argument that [Stevenson] was wearing the
shirt at the time the crime was committed." Id. Her conduct in
retrieving the shirt was an implied assertion that Stevenson was
wearing the shirt on the night of the crime. Here, Brinkley
- 8 -
testified that she arranged, at the defendant's request, an
exchange of a handgun for cocaine between the defendant and her
neighbors and that upon request from the police she went to her
neighbors and retrieved a handgun. While one may infer that the
handgun Brinkley retrieved was the one the defendant had
exchanged, that inference flows from all the circumstantial
evidence in this case and not merely from the alleged hearsay, as
was the case in Stevenson. Unlike Stevenson, the officers in
this case did not testify that they asked Brinkley to retrieve
the defendant's gun. Brinkley did not testify that the neighbors
said this was the defendant's gun. Brinkley did not testify as
to what she asked of the neighbors or what they said or did in
response to her request. She testified only that she obtained a
9mm handgun from them.
Circumstantial evidence, other than the neighbors' act of
giving the gun to Brinkley, connected the defendant with the 9mm
handgun introduced into evidence. Both Officers Niedhammer and
Hockman testified that the defendant shot them. Officer
Niedhammer testified that during the scuffle with the defendant
he discovered that his 9mm handgun was missing. Niedhammer also
testified that he saw the defendant leaving the scene with a gun.
Yvette Washington testified that shortly after the shootings she
saw the defendant holding a gun clip. Brinkley testified that
the defendant visited her apartment on the night the crimes were
committed and asked her to contact her neighbors and arrange an
- 9 -
exchange of a 9mm handgun for cocaine. After Brinkley arranged
the exchange, the defendant went across the street to the
neighbors' house and returned several minutes later with cocaine.
The following morning, Brinkley retrieved a 9mm handgun from
the neighbors with whom she had arranged the exchange. That gun
was later identified as Niedhammer's gun. The trier of fact did
not have to rely on a nonverbal assertion by the neighbors to
connect the defendant with the gun introduced at trial. Proof
that Niedhammer's gun was missing after the scuffle with the
defendant, that the defendant was seen leaving the scene with a
handgun, that the same evening the defendant arranged an exchange
of a gun for drugs, and that Officer Niedhammer's gun was
retrieved from the persons who purportedly exchanged drugs for
the gun, are circumstances which prove that the handgun admitted
in evidence was taken by the defendant from Niedhammer. The
trial court did not err by admitting the gun and the expert's
ballistics testimony that the gun was used to shoot Officer
Niedhammer.
III. Sufficiency of the Evidence
After the jury returned the verdicts, the trial judge stated
that he assumed the defendant was moving "to set the verdict
aside [as] contrary to the law and evidence," whereupon the trial
judge overruled the motion. Although objection in this form is
not sufficient to preserve a challenge to the sufficiency of the
evidence, see Rule 5A:18, it is well established that "[t]he
- 10 -
purpose of Rule 5A:18 is to require a party to raise an issue in
a timely fashion before the trial judge so the court has
opportunity to address the issue and prevent unnecessary
appeals." Brown v. Commonwealth, 8 Va. App. 474, 480, 382 S.E.2d
296, 300 (1989). A general objection that the verdict is
contrary to the law and the evidence fails to identify with
specificity in what respect the defendant considers the evidence
to be deficient. Here, however, the trial judge preempted the
defendant from making a motion to set aside the verdict and ruled
ex mero motu the evidence sufficient to support the grand larceny
charge. For counsel to have objected further after the trial
court's ruling would have been redundant and argumentative. We
hold, therefore, that the trial court ruled on the issue of
whether the evidence was sufficient as to the grand larceny
charge. For this reason, the issue was preserved for appeal.
"In considering the sufficiency of the evidence to support
the convictions, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Id. at 480-81, 382 S.E.2d at 300.
Officer Niedhammer discovered that his handgun was missing
during the scuffle with the defendant, and he saw the defendant
leave the scene of the crime holding a handgun. Yvette
Washington testified that the defendant possessed what appeared
to be a gun clip, and Brenda Brinkley testified that the
defendant wanted to meet with some of her neighbors to exchange a
- 11 -
9mm handgun for cocaine. The handgun that Brinkley recovered
from the neighbors the following morning was identified as
Officer Niedhammer's gun. We hold that this evidence is
sufficient, viewed in the light most favorable to the
Commonwealth, to support the defendant's conviction for grand
larceny of Officer Niedhammer's 9mm gun.
For these reasons, we affirm the defendant's convictions.
Affirmed.
- 12 -