Arnold v. Commonwealth

356 S.E.2d 847, 4 Va. App. 275, 3 Va. Law Rep. 2625, 1987 Va. App. LEXIS 180
CourtCourt of Appeals of Virginia
DecidedJune 2, 1987
DocketRecord No. 0948-85
StatusPublished
Cited by39 cases

This text of 356 S.E.2d 847 (Arnold v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnold v. Commonwealth, 356 S.E.2d 847, 4 Va. App. 275, 3 Va. Law Rep. 2625, 1987 Va. App. LEXIS 180 (Va. Ct. App. 1987).

Opinions

[277]*277COLEMAN, J.

Appellant, David Allen Arnold, was convicted of distributing more than one-half ounce but not more than five pounds of marijuana in violation of Code § 18.2-248.1(a)(2). On appeal, he challenges the trial court’s ruling which allowed the jury to use a typewritten transcript while listening to a recorded conversation between himself and an informant who had been wired with a recording device. Appellant also challenges the admission into evidence of the informant’s recorded oral report made at the end of the conversation. We find that the trial court did not abuse its discretion in allowing the jury to use the typewritten transcript. We find, however, that the court erred by admitting the informant’s report, but that because such evidence was merely cumulative, its admission was harmless.

On August 10, 1984, Investigator Glenn Hyatt placed a “body wire” on Gerald Wayne Kennon, an informant, who was to make a drug purchase from appellant. Hyatt monitored and recorded the conversation transmitted during the transaction. Immediately following the purchase, Kennon summarized the events, which summary was recorded on the tape. At trial, the Commonwealth proffered the tape recording and presented a typewritten transcript of the recorded conversation. Defense counsel objected on hearsay grounds to the use of the transcript and to admission into evidence of that portion of the recording containing Kennon’s summation. The trial judge conducted a hearing outside of the jury’s presence and ruled that the transcript could be used by the jury as an aid to following the recorded conversation, after receiving cautionary instructions from the court. The trial judge also ruled that the tape recording would be admitted in its entirety, including Kennon’s summation of the transaction.

I. Transcript

Whether a jury may use a typed transcript as a visual aid to understanding while listening to recorded evidence is a question of first impression in Virginia. It is, however, an established practice in the federal courts and several state courts. See United States v. Slade, 627 F.2d 293 (D.C. Cir.), cert. denied, 449 U.S. 1034 (1980); United States v. Hall, 342 F.2d 849 (4th Cir.), cert. denied, 382 U.S. 812 (1965); Golden v. State, 429 So. 2d 45 (Fla. Dist. Ct. App.), petition for rev. denied, 431 So. 2d 988 (Fla. 1983); People v. Feld, 305 N.Y. 322, 113 N.E.2d 440 (1953). The [278]*278federal and state courts which have considered the issue have determined that whether the jury may use a typed transcript as a visual aid while listening to a recording is a matter within the sound discretion of the trial judge. 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). We agree and hold that the decision is one of discretion for the trial judge and will be overturned on appeal only for a clear abuse of that discretion. See Justus v. Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981).

In United States v. John, the eighth circuit set forth the criteria considered in determining whether a trial judge abused his discretion in permitting the use of a transcript to aid the jury in following tape recorded evidence. In John, the trial judge reviewed the transcript, found that it accurately reflected the recorded communications and was prepared with care. The trial judge also determined that the transcript was necessary to enable the jury to intelligently follow the recorded conversation. Before the judge distributed the transcript, he instructed the jury to use it only as an aid in listening to the recording and to base its verdict upon what they heard and not what they read, and to listen to the declarants’ manner and emphasis of speech so as to understand what was being said. Finally, the jury was not permitted to use the transcript during deliberation. Because of the judge’s careful and considered use of the transcript, the eighth circuit held that there was no abuse of discretion. John, 508 F.2d at 1141.

Substantially similar precautions were taken in the present case. The actual tape recording was at times difficult to understand, not because of the special language involved as in John, but because of the quality of the recording. The transcript was necessary to enable the jury to. intelligently understand and follow the recorded conversation. The use of a transcript was preferable to other available alternatives to facilitate hearing and following the recorded conversation. To simply have played the recording for the jury one time, without the benefit of the transcript, would have rendered some of the conversation ineffective as evidence. Conversely, to have played the tape several times would have prolonged the trial and possibly caused prejudice to the defendant by excessive repetition and undue emphasis of the government’s evidence. United States v. Lawson, 347 F. Supp. 144, 148-49 (E.D. Pa. 1972).

[279]*279Before distributing the transcript, the trial judge informed the jury that the transcript was not evidence and cautioned them to determine what was on the tape from what they actually heard, not from what they read. The judge’s warnings properly instructed the jury as to the permissible use of the transcript. We must presume the jury followed the trial judge’s instructions and made proper use of the recorded evidence and the typewritten aid before them. See LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063 (1984).

As a last precaution, the transcript was collected from the jurors as soon as the tape recording was played. Copies of the transcript were not available to the jury during their deliberation. The jurors’ only exposure to the transcript occurred while they listened to the tape.

We find that the procedure followed by the trial judge was adequate to ensure the proper use of the transcript. In the absence of a stipulation as to the transcript’s accuracy, the trial judge should verify the accuracy prior to submitting the transcript to the jury. Verification can be made by the trial judge or by receipt of evidence from the transcriber, or both. However, even though in the present case the trial judge did not make a factual determination of the accuracy of the transcript by actually comparing the transcript to the recorded conversation, it is not error to use the transcript when its accuracy is supported by the record as in the situation before us. See Slade, 627 F.2d at 303. The accuracy was not challenged in any material respect. The appellant was present at trial and had the ability to point out discrepancies between the transcript and the tape recording. The fact that no challenges of substance were made or have been called to our attention supports the conclusion that the transcript was substantially accurate.

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Bluebook (online)
356 S.E.2d 847, 4 Va. App. 275, 3 Va. Law Rep. 2625, 1987 Va. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnold-v-commonwealth-vactapp-1987.