Eugene Valentino Smalls v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
EUGENE VALENTINO SMALLS
MEMORANDUM OPINION * BY
v. Record No. 2621-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
James O. Broccoletti (Zoby & Broccoletti, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Eugene V. Smalls (defendant) was convicted by a jury for
possession of cocaine with intent to distribute, related
conspiracy, and transport of the drug into the Commonwealth. On
appeal, defendant assails the accuracy of the written transcripts
provided to visually assist in discerning certain audio and video
tapes and asserts that the trial court improperly instructed the
jury on the limited purpose of such transcripts. For the reasons
that follow, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
During a protracted investigation of defendant for suspected
drug activity, Detective J.W. Hayden monitored and recorded
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
twelve telephone conversations between defendant and a
confidential informant, and videotaped a meeting of the two men
on October 19, 1995. The detective subsequently prepared written
transcripts of these encounters. Portions of conversation which
the detective was unable to understand were identified by
numerous ellipses throughout the transcripts.
When the Commonwealth offered the transcripts to the jury
for reference coincidental with presentation of the audio and
video tapes, defendant objected, arguing,
Obviously, I think pursuant to the ruling
before - the video and audio tapes before the
jury - I would be objecting to any
transcript. I think their recollection or
ability to hear what's on the tape should be
controlling and not what someone else has
listened to and prepared a transcript from.
The voices are very difficult to understand,
and I would object to the jury being given a
transcript to follow through.
The court overruled the objection, the transcripts were made
available to the jury, and defendant requested no cautionary
instruction.
After the taped telephone conversations were in evidence,
but before a transcript of the videotaped meeting was distributed
to the jury, defendant renewed his objection to the transcripts,
and the court cautioned the jury that
These transcripts---they are simply for you
to use to help you in understanding because
sometimes the words are hard to understand.
That's the only reason they are given out.
Otherwise we let you listen to the tape, but
we thought it might be helpful so---in case
you can't understand some of the words.
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Defense counsel neither objected to this instruction nor
proffered an alternative. The remaining tape and attendant
transcript were then presented to the jury.
Procedural Bar
"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. "Furthermore, the reasons stated for
the objection in the trial court must be the same reasons that
are argued on appeal." Campbell v. Commonwealth, 13 Va. App. 33,
41, 409 S.E.2d 21, 26 (1991) (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 v. Commonwealth, 12 Va. App. 476,
480, 405 S.E.2d 1, 2 (1991) (citation omitted).
Defendant complains on appeal that the "audiotapes were [so]
difficult to understand" that "[e]llipses appear throughout the
transcript . . . where the detective could not make out what was
said." As a result, he argues that portions of conversation were
"unduly emphasized" and considered without proper context.
However, defendant's only objection at trial addressed the use of
transcripts, not deficiencies in content or format. 1
1
"[F]ederal and state courts . . . have determined that
whether the jury may use a typed transcript as a visual aid while
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Moreover, defendant "was present at trial and had the
ability to point out discrepancies between the transcript and the
tape recording," but did not pursue such evidence. Arnold, 4 Va.
App. at 279, 356 S.E.2d at 850 (citation omitted). "Having
failed to designate any discrepancy of substance between the
transcript and the recorded conversation either here or in the
trial court, appellant waived his opportunity to challenge the
transcript's accuracy." Id.
"[T]he ends of justice exception is narrow
and is to be used sparingly . . . ." In
order to avail oneself of the exception, a
defendant must affirmatively show a
miscarriage of justice has occurred, not that
a miscarriage might have occurred. The trial
error must be "clear, substantial and
material."
Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269,
272 (1997). Because the instant circumstances demonstrate no
"clear, substantial or material" error resulting in a
"miscarriage of justice," we decline to invoke the exception to
Rule 5A:18.
Cautionary Instruction
The record clearly discloses that the trial court failed to
admonish the jury on the limited use of the transcripts until a
portion of the tapes had been heard by the jury, together with
listening to a recording is a matter within the sound discretion
of the trial judge." Arnold v. Commonwealth, 4 Va. App. 275,
277-78, 356 S.E.2d 847, 849 (1987); see also United States v.
Long, 651 F.2d 239, 243 (4th Cir.), cert. denied, 454 U.S. 896(1981); United States v. John, 508 F.2d 1134, 1141 (8th Cir.),
cert. denied, 421 U.S. 962 (1975)).
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the related transcripts. Defendant now complains that the
cautionary instruction was both untimely and incomplete, although
he offered no objection or alternative at trial.
It is well established that "failure to request a cautionary
instruction bars consideration of the issue on appeal." Berry v.
Commonwealth, 22 Va. App. 209, 214, 468 S.E.2d 685, 687-88 (1996)
(citations omitted). "'When a defendant . . . does not request
[a cautionary] instruction . . . any error which may have been
committed otherwise is waived.'" Talbert v. Commonwealth, 17 Va.
App. 239, 244, 436 S.E.2d 286, 289 (1993) (citations omitted).
Further, Rule 5A:18 bars our consideration of the issue because
defendant did not challenge the court's instruction prior to
presentation of the tapes and transcripts.
Accordingly, we affirm the convictions.
Affirmed.
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