Eugene Nakia Harley v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
EUGENE NAKIA HARLEY OPINION BY
v. 	Record No. 1354-96-1 	JUDGE JERE M. H. WILLIS, JR.
AUGUST 5, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Joseph C. Lindsey (Joseph C. Lindsey, P.C.,
on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Eugene Nakia Harley appeals his convictions of robbery, two
counts of abduction, and three counts of use of a firearm in the
commission of a felony. 	He contends that the trial court erred
in denying his motion for a transcript of a suppression hearing
at state expense. 	We hold that the trial court erred but that
the error was harmless. 	Accordingly, we affirm the convictions.
I.
Shortly before 9:00 p.m. on December 8, 1994, employees at
the Twin B Auto Parts store in Virginia Beach were preparing to
close the store. 	Kevin Jones, who managed the store, was behind
the counter with Marc White. 	Dan Disharoon was sweeping the
floor.
Harley entered the store and pretended to purchase an air
freshener. 	When Jones opened the cash register, Harley produced

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a handgun and said: 	"This is a robbery." 	After ordering Jones,
White and Disharoon to the floor, Harley took the money out of
the cash register. 	He then forced the three men to walk to a
back room and to lie down. 	He took money from a box in the back
room and fled the store. 	Shortly thereafter, Jones, Disharoon
and White gave Detective Charles Mills detailed descriptions of
the robber's appearance and filled out "suspect description"
forms.
On January 5, 1996, the Commonwealth provided the defense a
detailed discovery response, summarizing the initial on-the-scene
report and the victims' descriptions of the robber. 	The response
included a six-photograph lineup that Jones and White had used to
identify Harley in July, 1995, and photographs from another
lineup shown to the victims in December, 1994. 	The 1994 lineup
contained no photograph of Harley and produced no identification
of a suspect.
Prior to trial, Harley moved to suppress his identification
by the three victims on the ground that their pretrial
identifications in the photo lineup and at the preliminary
hearing were made under impermissibly suggestive conditions. 	On
March 5, 1996, the trial court conducted a hearing on the
suppression motion. 	White, Jones and Disharoon all described the
circumstances surrounding their pretrial identifications of
Harley. 	Detective Mills and Detective Michael Collins described
those identifications as well. 	The trial court denied Harley's

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motion to suppress the identifications. 	That ruling is not on
appeal. 	A court reporter recorded the proceedings.
Thereafter, Harley, an indigent, petitioned the trial court
for a transcript of the suppression hearing on the ground that it
"is necessary to adequately face these same witnesses at the
trials on these matters and to impeach their credibility, if
necessary . . . ." 	Defense counsel stated that he had not been
counsel at the preliminary hearing, and that he could not impeach
the witnesses without the suppression hearing transcript. 	The
trial court denied the request, noting that defense counsel had
taken "copious" notes throughout the suppression hearing and had
used the hearing "for discovery purposes rather than the sole
issue" of the propriety of the pretrial identifications. 	It
ruled that to provide the defense with a transcript would "thwart
the law in Virginia which says there's no discovery in criminal
cases . . . ." 	Harley was then tried and convicted in a bench
trial by the trial judge who had presided over the suppression
hearing.
II.
"We recognized long ago that mere access to
the courthouse doors does not by itself
assure a proper functioning of the adversary
process, and that a criminal trial is
fundamentally unfair if the State proceeds
against an indigent defendant without making
certain that he has access to the raw
materials integral to the building of an
effective defense. 	Thus, while the Court has
not held that a State must purchase for the
indigent defendant all the assistance that
his wealthier counterpart might buy, see Ross
v. Moffitt, 417 U.S. 600 (1974), it has often

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reaffirmed that fundamental fairness entitles
indigent defendants to 'an adequate
opportunity to present their claims fairly
within the adversary system,' id., at 612.
To implement this principle, we have focused
on identifying the 'basic tools of an
adequate defense . . .' Britt v. North
Carolina, 404 U.S. 226, 227 (1971), and we
have required that such tools be provided to
those defendants who cannot afford to pay for
them."
Husske v. Commonwealth, 252 Va. 203, 210, 476 S.E.2d 920, 924
(1996) (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)).
Following a mistrial, the due process and equal protection
clauses require that an indigent defendant be provided, free of
cost, an available transcript "'when that transcript is needed
for an effective defense or appeal.'" 	Anderson v. Commonwealth,
19 Va. App. 208, 211, 450 S.E.2d 394, 395-96 (1994) (citations
omitted). 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 v. North
Carolina, 404 U.S. 226, 227 (1971)).
VALUE TO HARLEY
The value of a transcript from a prior proceeding "can
ordinarily be assumed." 	Britt, 404 U.S. at 228. 	See Anderson,
19 Va. App. at 212, 450 S.E.2d at 396 (noting value of mistrial
transcript for discovery, trial preparation and impeachment

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purposes); White v. Commonwealth, 21 Va. App. 710, 714-15, 467
S.E.2d 297, 299-300 (1996). 	Moreover, "'[i]n cases whose outcome
turns on witness credibility, the potential value of a transcript
for impeachment purposes is obvious.'" 	Anderson, 19 Va. App. at
212, 450 S.E.2d at 396 (quoting United States v. Devlin, 13 F.3d
1361, 1365 (9th Cir. 1994) (reversing trial court decision to
deny indigent free transcript of suppression hearing)). 	Because
an indigent defendant need make no "particularized showing" of
need for a transcript, Harley's motion for a free copy of the
available transcript to assist in impeaching trial witnesses was
sufficient. 	See White, 21 Va. App. at 714, 467 S.E.2d at 299-300
(quoting Britt, 404 U.S. at 228).
ALTERNATIVE DEVICES
Harley requested the transcript for impeachment purposes.
While alternative methods of impeachment may be available, see
Edwards v. Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2
(1995), "'[a] defendant who claims the right to a free transcript
does not . . . bear the burden of proving inadequate such
alternatives as may be suggested by the State or conjured up by a
Court in hindsight.'" 	Anderson, 19 Va. App. at 212-13, 450
S.E.2d at 396 (quoting Britt, 404 U.S. at 230).
The Commonwealth contends that Harley received what should
be considered a "constructive transcript." 	Specifically, the
Commonwealth argues that (1) its response to Harley's discovery
request provided information suitable for both substantive and

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impeachment purposes, (2) that the same trial judge presided over
both proceedings, and (3) that the trial occurred only eight days
after the suppression hearing.
The Commonwealth's production and delivery of documents in
response to Harley's discovery request undoubtedly provided
useful assistance. 	However, the transcript would have afforded a
means by which witnesses might have been impeached, independent
and apart from other extrinsic evidence. 	Thus, the information
provided by the Commonwealth through discovery was not
substantially equivalent to a transcript of the hearing. 	See
United States v. Talbert, 706 F.2d 464, 470 (4th Cir. 1983)
(finding prosecutor's "open files" policy not substantially
equivalent to transcript of mistrial).
We reject the Commonwealth's suggestion that the trial
judge's presence at both proceedings in some way lessened
Harley's need for the transcript. 	At trial, references were made
by counsel and witnesses to pretrial hearings and the trial judge
acknowledged the testimony of witnesses at the suppression
hearing.1 However, we reject the notion that a party should be
required to depend upon the trial judge's recollection, sua
sponte, of testimony from pretrial hearings. 	Thus, while the
fact that the same judge hears two or more parts of a criminal
1
In failing to sustain the Commonwealth's objection to
references from the defense to a defense witness' testimony at the
suppression hearing, the trial judge noted that it would be
"highly unusual" to take notice of the earlier testimony, but
stated that "I do recall what her testimony was."

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proceeding may be relevant in deciding whether an error was
harmless, see United States v. Tyler, 943 F.2d 420, 422 (1991),
it does not constitute a substitute for a transcript of a
pretrial hearing.
The length of time between the hearing and the trial is an
important factor in assessing the adequacy of "alternative
devices." 	See Riggins v. Rees, 74 F.3d 732, 737 (6th Cir. 1996).
However, chronological proximity does not, by itself, constitute
a substitute for a transcript. 	While the trial occurred only
eight days after the suppression hearing, that fact alone is
meaningless without the demonstrated availability of a
time-sensitive transcript substitute.
The suppression hearing was recorded by a court reporter. 	A
transcript of that hearing was therefore available upon payment
of a transcription fee. 	A transcript was available to a party
having the funds to pay for it. 	Because the transcript had
significant value as a defensive tool, and because no reasonable
alternative device existed, the rule of Britt, Anderson and White
required the trial court to make that transcript available to
Harley upon timely and adequate motion. 	In denying Harley's
motion, the trial court erred.
III.
While we hold that the trial court erred in denying Harley's
motion for a transcript, we must determine whether the error was
harmless. 	See White, 21 Va. App. at 716, 467 S.E.2d at 300. 	For

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a constitutional error to be harmless, it must be harmless beyond
a reasonable doubt. 	Id. 	Harley admits that the witnesses'
testimony "differed [only] slightly at trial," but contends that
there were inconsistencies that require reversal of his
convictions. 	We disagree.
Harley argues that at trial, two of the three witnesses
stated that their identifications were only "tentative," whereas
Collins testified at the suppression hearing that each of the
witnesses made positive identifications. 	At the suppression
hearing, Collins stated that he showed the photo spread to Jones
and White. 	At trial, Collins testified that, according to his
notes, both Jones and White positively identified Harley. 	Jones
testified both at the hearing and at trial that when Collins
showed him the photo lineup, he could not identify Harley's
photograph positively. 	White testified at both proceedings that
he positively identified Harley's photograph. 	Because Collins,
Jones and White testified consistently on each occasion, a
transcript of their testimony at the suppression hearing would
not have aided an attempt to impeach them.
Harley notes that White testified at the suppression hearing
that the robber had light brown eyes, but wrote on the suspect
description form that the robber had blue eyes. 	Harley has brown
eyes. 	Harley argues that, without the transcript, he was unable
to impeach White's in-court testimony concerning his
identification of the robber. 	However, the following dialogue

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occurred during the defense's cross-examination of White at
trial:
Q. 	I think you testified in an earlier hearing that
his eyes stood out to you?
A. 	Right. 	Right.
Q. 	At that point you related to the color of his
eyes?
A. 	I don't know so much the color. 	It's the
eyes and the face [that] just really stuck
out.
Q. 	Okay. 	Do you recall his eyes -- you put on
blue?
A. 	Yes. 	I put on there blue. 	Yes.
Q. 	Do you have any reason to believe your memory
as being better as to the color of eyes now
then it would have been at that time?
A. 	No. 	Not really.
Q. 	At that time ten minutes after the incident
probably would be your best description of
this gentleman?
A. 	Yeah. 	Good as it's going to get.
On redirect examination, White conceded that Harley did not have
blue eyes. 	However, he adamantly insisted that he had no doubt
that Harley was the person who robbed him.
The record discloses no significant discrepancies between
the witnesses' testimony at the suppression hearing and their
testimony at trial. 	Thus, denial of the transcript to Harley
worked him no prejudice. 	The evidence of his guilt was
overwhelming. 	All three witnesses had ample time to view him as

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he committed the robbery, and the descriptions that they gave to
the police on the night of the robbery comported with his actual
appearance. 	At trial, all three witnesses identified Harley as
the robber.
The judgment of the trial court is affirmed.
Affirmed.