COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges 

Argued at Alexandria, Virginia 

DAVID ALLEN MOORE 

 MEMORANDUM OPINION* BY 

v. Record No. 0063-98-4 JUDGE WILLIAM H. HODGES 

 FEBRUARY 23, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

James H. Chamblin, Judge 

 Michael D. Sawyer (Alexander N. Levay; Moyes & 

Levay, P.L.L.C., on briefs), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 David Allen Moore appeals from a jury verdict convicting him 

of two counts each of murder and using a firearm in the 

commission of murder. Moore asserts that the trial court erred 

when it allowed the Commonwealth to read into evidence his 

testimony from an earlier trial that ended in a mistrial, and 

when it denied his motion to set aside the verdict based on the 

Commonwealth's failure to disclose a statement he made to 

Investigator Merchant on September 30, 1994. We affirm the 

convictions. 
- 2 - 

I. Admissibility of Prior Testimony

 Moore's first trial ended in a mistrial when the jury could 

not reach a verdict. Moore testified on his own behalf during 

the first trial and, over his objection, the transcript of this 

testimony was read into evidence at his second trial. Moore 

contended that Code § 19.2-270 did not apply where the testimony 

to be admitted came from a trial that ended in a mistrial. 

 Code § 19.2-270 provides: 

 In a criminal prosecution, other than for 

perjury, or in an action on a penal 

statute, evidence shall not be given 

against the accused of any statement made 

by him as a witness upon a legal 

examination, in a criminal or civil action, 

unless such statement was made when 

examined as a witness in his own behalf. 

 The argument that admitting into evidence a defendant's 

testimony from a prior trial "violates his privilege against 

self-incrimination is not new and has been universally rejected 

by the courts." Harbaugh v. Commonwealth, 209 Va. 695, 700, 167 

S.E.2d 329, 333 (1969). See Harrison v. United States, 392 U.S. 

219, 222 (1968). 

 A defendant who chooses to testify waives 

his privilege against compulsory 

self-incrimination with respect to the 

testimony he gives, and that waiver is no 

less effective or complete because the 

defendant may have been motivated to take 

the witness stand in the first place only 

by reason of the strength of the lawful 

evidence adduced against him. 

Id.
- 3 - 

 In Harbaugh, the defendant was convicted in county court of 

assault and battery and appealed to circuit court. The defendant 

testified in his own behalf at the county court proceeding. At 

the circuit court trial, the trial court allowed a witness to 

relate the defendant's county court testimony. See Harbaugh, 209 

Va. at 695-96, 167 S.E.2d at 330-31. The defendant objected, 

contending that the evidence was inadmissible because the circuit 

court trial was a trial de novo. See id. at 698, 167 S.E.2d at 

332. Despite recognizing that an appeal from a county court to a 

circuit court was "a statutory grant of a new trial which annuls

the judgment of the inferior court," the Court held that this 

evidence was admissible under the predecessor statute to Code 

§ 19.2-270. See id. at 698-99, 167 S.E.2d at 332-33 (emphasis 

added). See also Cregger v. Commonwealth, 25 Va. App. 87, 91, 

486 S.E.2d 554, 556 (1997) (noting that an appeal from general 

district court to circuit court nullifies the district court's 

judgment as completely as if there had been no previous trial). 

 Moore presents no case law in support of his contention that 

testimony from a prior trial that ends in a mistrial is 

inadmissible under Code § 19.2-270. The statute does not specify 

the type of legal proceeding from which testimony can be used, 

only limiting admissibility to statements made by the defendant 

"when examined as a witness in his own behalf." Moore testified 

under oath and in his own behalf at the first trial. 

Accordingly, the trial court did not err by admitting this 

evidence. 
- 4 - 

 Moore also argues that his testimony at the first trial was 

improperly compelled by the admission of illegal evidence. He 

contends that his statements to Michael Anderson were elicited 

illegally, and, therefore, his testimony to rebut these 

tape-recorded statements was also tainted. See Harrison, 392 

U.S. at 223 (a defendant's Fifth Amendment right against 

self-incrimination is violated when he is compelled to testify to 

rebut an illegally obtained confession). 

 Moore finally argues that much of his testimony consisted of 

prejudicial statements that did not implicate him in the murders. 

And he asserts that the manner in which the evidence was 

presented to the jury, by having different persons read the 

different "roles," was a "highly prejudicial spectacle." 

 Although Moore moved to suppress the tape-recorded 

statements he made to Anderson, his sole objection to using his 

testimony from the first trial at the second trial was that the 

first trial had ended in a mistrial.1 And while Moore challenged 

the admissibility of the testimony generally, he did not state 

the specific ground upon which he based this challenge, he did 

not seek to redact any portions of the testimony he felt 

prejudicial, and he agreed with the Commonwealth that his entire 

testimony from the first trial should be read to the jury. 

Finally, with regard to the manner in which the testimony was 

 

 1Moore advised the trial court that his objection was based 

on the Fifth Amendment, but he did not make the Harrison argument 

that he now presents to this Court. 
- 5 - 

presented to the jury, Moore's only objection, which was 

remedied, was that he did not want the Assistant Commonwealth's 

attorney reading his, Moore's, part. 

 "No ruling of the trial court . . . will be considered as a 

basis for reversal unless the objection was stated together with 

the grounds therefor at the time of the ruling, except for good 

cause shown or to enable the Court of Appeals to attain the ends 

of justice." Rule 5A:18. See Ohree v. Commonwealth, 26 Va. App. 

299, 308, 494 S.E.2d 484, 488 (1998). Rule 5A:18 requires that 

objections to a trial court's action or ruling be made with 

specificity in order to preserve an issue for appeal. See

Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 

(1991) (en banc). A trial court must be alerted to the precise

issue to which a party objects. See Neal v. Commonwealth, 15 Va. 

App. 416, 422-23, 425 S.E.2d 521, 525 (1992). 

 We hold that Moore did not, with any specificity, bring any 

of the three concerns addressed above to the trial court's 

attention. Because the requirements of Rule 5A:18 have not been 

met, we will not consider these concerns on appeal. Moreover, 

the record does not reflect any reason to invoke the good cause 

or ends of justice exceptions to Rule 5A:18. 

II. Failure to Disclose Statement

 At the second trial, Investigator Merchant described a 

September 30, 1994 conversation he had with Moore regarding a 

"rap" song Moore had been heard singing that recounted the 

murders. Merchant testified that Moore "indicated" that he made 
- 6 - 

 

up the song and that Moore then dropped down his head. Merchant 

had not mentioned this particular discussion in the four previous 

times he had testified in this case, and this statement had not 

been provided to Moore as part of the Commonwealth's discovery 

responses. Although objecting when Merchant began to testify how 

he interpreted Moore's action of dropping down his head, Moore 

did not object on the ground that the Commonwealth had improperly 

failed to disclose this information. He did not request that the 

evidence be excluded, ask for a continuance, or move for a 

mistrial. On cross-examination, Moore got Merchant to admit that 

this was the first time that he had testified about this 

discussion about the rap song. 

 Moore subsequently moved the trial court to set aside the 

jury's verdict based on the Commonwealth's failure to disclose 

the September 30, 1994 statement.2 The trial court denied the 

motion, reasoning that Moore had waived any objection by not 

raising the issue timely. The court noted that, had Moore 

objected contemporaneously, it "would not, in all probability 

. . . have resulted in a mistrial at that time. There would have 

been other things the Court could have done short of that drastic 

remedy." 

 Where the Commonwealth fails to fully provide discovery 

under Rule 3A:11, the trial court may "grant a continuance, or 

 2At the May 9, 1997 hearing, Merchant testified that 

appellant did not verbally admit making up the lyrics, but 

Merchant felt that, by dropping his head when questioned, 

appellant was indicating that he made up the song. 
- 7 - 

prohibit the Commonwealth from introducing evidence not 

disclosed, or the court may enter such other order as it deems 

just under the circumstances." Code § 19.2-265.4. 

 "In order to be considered on appeal, an objection must be 

timely made and the grounds stated with specificity. To be 

timely, an objection must be made when the occasion arises -- at 

the time the evidence is offered or the statement made." Marlowe 

v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986) 

(citation omitted). "The goal of the contemporaneous objection 

rule is to avoid unnecessary appeals, reversals and mistrials by 

allowing the trial judge to intelligently consider an issue and, 

if necessary, to take corrective action." Campbell, 12 Va. App. 

at 480, 405 S.E.2d at 2. 

 If appellant had objected while Merchant was testifying, the 

trial court would have had the option of striking Merchant's 

testimony and directing the jury to disregard it. The court 

could also have taken a recess to allow Moore to consider this 

revelation and how to incorporate it into his cross-examination 

of Merchant. But Moore denied the trial court all but one 

remedy--setting aside the jury's verdict--by delaying until after 

the trial to raise this issue. Accordingly, Moore's objection 

was not timely, and Rule 5A:18 bars our consideration of this 

question on appeal. Moreover, the record does not reflect any 

reason to invoke the good cause or ends of justice exceptions to 

Rule 5A:18. 
- 8 - 

 For the foregoing reasons, the trial court did not err when 

it admitted Moore's prior testimony to be read to the jury and 

into evidence. Likewise, the trial court did not err when it 

denied Moore's motion to set aside the jury's verdict. 

Accordingly, we affirm the convictions. 

 Affirmed.