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 

 

 1In 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.