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 
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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, 
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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] . . . 
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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 
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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 
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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. 
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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 
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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 
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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 
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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 
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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 
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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.