                    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.


     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.




     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
               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.




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       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.



                                 - 3 -
     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

     1
      Moore 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.




                               - 4 -
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



                                 - 5 -
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

     2
      At 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.



                                 - 6 -
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.




                                 - 7 -
     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.




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