Thomas Leroy Lipscomb v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
THOMAS LEROY LIPSCOMB
MEMORANDUM OPINION * BY
v. Record No. 2202-96-3 JUDGE NELSON T. OVERTON
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
William W. Sweeney, Judge
Jonathan S. Kurtin (Harvey S. Lutins; Lutins,
Shapiro & Kurtin, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Thomas L. Lipscomb (defendant) was found guilty by a jury of
distribution of cocaine in violation of Code § 18.2-248 on June
30, 1995. During its deliberations, the jury asked to rehear an
audiotaped recording of the drug sale which formed the basis of
defendant's conviction. Defendant now appeals, ascribing error
to the trial court's decision to allow the jury to listen to the
tape. Because we find no error by the trial judge in allowing
the jury to have the audiotape, we affirm the conviction.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
The audiotape at issue was offered into evidence by the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prosecution after foundation was laid by Special Agent Langhorne
of the Department of State Police and Melody Little, a party to
the drug sale at issue. See Witt v. Commonwealth, 15 Va. App.
215, 220, 422 S.E.2d 465, 469 (1992) (holding that as long as a
proper foundation is laid, audiotapes may be admitted into
evidence). Defendant had several opportunities to object to the
tape being entered into evidence, yet he declined to act.
Because no timely, contemporaneous objection was made, we decline
to address the issue of whether the tape should have been allowed
into evidence, and we assume it was properly admitted. Rule
5A:18.
After it is determined that the tape was in evidence, the
plain terms of Code § 8.01-381 govern our decision. Code
§ 8.01-381 states explicitly that "[e]xhibits requested by the
jury shall be sent to the jury room or may otherwise be made
available to them." After exhibits are entered into evidence,
the trial court has no other option but to give them to the jury
upon request. Indeed, it would have been an abuse of discretion
if the trial court had not given them the tape. Because the
record is clear that the jury requested the audiotape, the trial
court's action was proper.
For the foregoing reasons, we affirm defendant's conviction.
Affirmed.
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