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. 
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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.