Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 972382 CHIEF JUSTICE HARRY L. CARRICO
September 18, 1998
EUGENE NAKIA HARLEY
FROM THE COURT OF APPEALS OF VIRGINIA
In this case, the defendant, Eugene Nakia Harley, was convicted
in the Circuit Court of the City of Virginia Beach of one count of
robbery, two counts of abduction, and three counts of the use of a
firearm in the commission of a felony. He was sentenced to serve a
total of forty-three years in the penitentiary, with twenty-five
years suspended.
Harley appealed his convictions to the Court of Appeals,
raising the sole question whether the trial court erred in denying
his motion for a transcript of a suppression hearing at state
expense. In a published opinion, the Court of Appeals held that
Harley was constitutionally entitled to a free transcript of the
suppression hearing and, therefore, that the trial court erred in
denying Harley’s motion with respect thereto. Harley v.
Commonwealth, 25 Va. App. 342, 350, 488 S.E.2d 647, 650 (1997).
However, the Court of Appeals found that there were “no significant
discrepancies between the witnesses’ testimony at the suppression
hearing and their testimony at trial” and that “[t]he evidence of
[Harley’s] guilt was overwhelming.” Id. at 351, 488 S.E.2d at 651.
Accordingly, the Court of Appeals held that the trial court’s error
in denying Harley a free transcript was harmless, and the court
affirmed Harley’s convictions. Id.
The Commonwealth filed a petition for appeal with this Court,
seeking reversal of the judgment of the Court of Appeals insofar as
it held that “the trial court was constitutionally obligated to
provide Harley with a free copy of his suppression hearing
transcript.” Harley filed a brief in opposition in which he
assigned cross-error to the Court of Appeals’ ruling that the
failure of the trial court to provide him a transcript at state
expense was harmless error. In his brief in opposition, Harley also
attacked the Commonwealth’s standing to appeal the judgment of the
Court of Appeals.
We awarded the Commonwealth an appeal and refused Harley’s
assignment of cross-error. He has not participated further in this
proceeding.
On the question of standing, the Commonwealth asserts that it
is a “party aggrieved” within the meaning of Code § 17-116.08, which
provides in pertinent part that “any party aggrieved by a final
decision of the Court of Appeals, including the Commonwealth, may
petition the Supreme Court for an appeal.” The Commonwealth says
that “[t]he decision of the Court of Appeals, if not modified,
inevitably would lead to the squandering of substantial amounts of
public monies, inasmuch as defendants would be constitutionally
2
entitled to transcripts of a host of pre-trial proceedings in order,
supposedly, to honor their rights to a fair trial and due process.”
The Commonwealth states on brief that the word “‘aggrieved’ is
defined in the dictionary as ‘feeling distress or affliction’ or
‘treated wrongly; offended.’ American Heritage Dictionary 87 (2d
ed. 1991).” The Commonwealth also notes that in Virginia Beach
Beautification Commission v. Board of Zoning Appeals, 231 Va. 415,
344 S.E.2d 899 (1986), we elaborated upon the meaning of the word
“aggrieved” as follows:
The term “aggrieved” has a settled meaning in
Virginia when it becomes necessary to determine who is a
proper party to seek court relief from an adverse
decision. . . . The word “aggrieved” in a statute
contemplates a substantial grievance and means a denial of
some personal or property right, legal or equitable, or
imposition of a burden or obligation upon the petitioner
different from that suffered by the public generally.
Id. at 419-20, 344 S.E.2d at 902-03 (emphasis added) (citation
omitted). The Commonwealth then argues that because the
decision of the Court of Appeals “will have the effect of
imposing substantial new financial burdens on the Commonwealth
to provide transcripts to indigent defendants who previously
would not have been entitled to them, the Commonwealth has
standing in this appeal.”
Finally, the Commonwealth submits that “even though [it]
ultimately prevailed in the Court of Appeals, it nevertheless
is an ‘aggrieved’ party under [§ 17-116.08].” The Commonwealth
3
argues that the statute does not state that “the losing party”
or “the party that did not prevail” may seek review in this
Court. Instead, the Commonwealth says, the statute provides
only that “any party aggrieved” may appeal, and the use of this
less restrictive language evinces “the intent of the General
Assembly to authorize appeals by the Commonwealth, at least
under the circumstances of this case.”
We do not agree that the Commonwealth is aggrieved by the
Court of Appeals’ ruling with respect to the issue of Harley’s
entitlement to a free transcript of his suppression hearing.
That issue was rendered moot by the Court of Appeals’ further
ruling that the error in the trial court’s denial of a free
transcript was harmless. As a result, the Commonwealth was
excused from providing Harley with a free transcript of his
suppression hearing. So far as this case is concerned,
therefore, and we can be concerned only with this case, the
harmless error ruling avoided the “imposition of a burden” upon
the Commonwealth and the “squandering of . . . public monies”
on “transcripts . . . of pre-trial proceedings.”
The Commonwealth is apprehensive, of course, about the
effect the Court of Appeals’ decision will have upon future
cases. But the Commonwealth’s concerns are hypothetical and
can only be based, at best, upon speculation and conjecture.
Its apprehension, therefore, is not sufficient to qualify it as
4
a “party aggrieved” within the meaning of Code § 17-116.08 and
the explication given the word “aggrieved” in the case of
Virginia Beach Beautification Commission v. Board of Zoning
Appeals, supra. Neither the statute nor the case can be read
to provide the Commonwealth a present appeal based upon the
apprehension that it will suffer the imposition of some future
burden.
In reality, the Commonwealth invites this Court to render
an advisory opinion on a moot question based upon speculative
facts. This is an exercise in which the Court traditionally
declines to participate. “The reason . . . is that the courts
are not constituted . . . to render advisory opinions, to
decide moot questions or to answer inquiries which are merely
speculative.” City of Fairfax v. Shanklin, 205 Va. 227, 229-
30, 135 S.E.2d 773, 775-76 (1964); see also Ridgwell v. Brasco
Bay Corp., 254 Va. 458, 462-63, 493 S.E.2d 123, 125 (1997);
Blue Cross & Blue Shield v. St. Mary’s Hosp., 245 Va. 24, 36,
426 S.E.2d 117, 123-24 (1993).
Accordingly, we decline the Commonwealth’s invitation to
render an advisory opinion in this case. Instead, we will
await the arrival of a case in which a conviction has been
reversed for the failure of a trial court to provide an
indigent defendant with a free transcript of a pretrial
hearing.
5
In the meantime, because in the present case the
Commonwealth is not a “party aggrieved” within the meaning of
Code § 17-116.08, we will dismiss this appeal.
Appeal dismissed.
6