Charles Edward Andrews, etc v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
CHARLES EDWARD ANDREWS, A/K/A
GILBERT ANDREWS MEMORANDUM OPINION* BY
v. 	Record No. 0565-94-2 	JUDGE LARRY G. ELDER
MAY 9, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
John A. Jamison, Judge Designate
R. Ted Butler (Ellis & Lowery, P.C., on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Charles Edward Andrews (appellant) appeals his conviction
for grand larceny in violation of Code § 18.2-95. 	Appellant
contends that the trial court erred in refusing to allow him to
fully exercise his right of cross-examination by requiring co-
defendant's counsel to use a transcript from a preliminary
hearing in order to impeach a prosecution witness. 	Because
appellant failed to make a timely objection pursuant to Rule
5A:18, he is procedurally barred from raising this issue on
appeal. 	We therefore affirm his conviction.
Appellant was tried jointly with James Andrews (his
brother), pursuant to Code § 19.2-262.1, for grand larceny.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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During trial, appellant's counsel cross-examined an employee of
the convenience store from which the two brothers had taken
$542.50 worth of cigarettes. 	Counsel for James Andrews, after
beginning her cross-examination of the same employee asked the
employee why she had testified at trial that no person was near
the store's lottery stand during the events in question, but at
the preliminary hearing had said that she had seen James Andrews
standing next to the lottery stand. 	The Commonwealth's Attorney
objected, arguing that since there was no transcript of the
preliminary hearing, appellant and his co-defendant were bound by
the employee's in-court statement. 	James Andrews' counsel
explained that she was inquiring as to why the employee gave a
prior inconsistent statement. 	The trial court, however, did not
permit any impeachment by prior inconsistent testimony, as there
was no transcript, and it would not accept an audiotape of the
preliminary hearing in lieu of a transcript.
Appellant and James Andrews made separate motions to strike
at the conclusion of the Commonwealth's evidence and at the
conclusion of the defendants' evidence. 	The jury found appellant
guilty, and the trial court sentenced him to five years in the
penitentiary.
We hold that appellant is procedurally barred from raising
on appeal the issue of whether his right to cross-examine a
witness was violated. 	Rule 5A:18 states that "[n]o ruling of the
trial court . . . will be considered as a basis for reversal

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unless the objection was stated together with the grounds
therefor at the time of the ruling." 	See Martin v. Commonwealth,
13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)(en banc).
Appellant's counsel did not contemporaneously object to the trial
court's ruling on the exclusion of the audiotape testimony.
Appellant cannot rely on any alleged error committed with
respect to James Andrews' counsel's cross-examination of the
employee. 	We find nothing to support the notion that any alleged
error affecting one co-defendant is automatically "translated" to
a co-defendant by virtue of a joint trial. 	Neither can we find
in the record any indication that either counsel informed the
trial court at the start of the trial that any objection made by
one counsel would be automatically adopted by the other.
Appellant's counsel had already completed his cross-examination
of the witness before co-defendant's counsel began her separate
cross-examination. 	Because a trial court's ruling may benefit
one co-defendant while harming another, appellant's counsel was
obligated to contemporaneously alert the trial court that he too
objected to the exclusion of the audiotape evidence.
For the forgoing reasons the judgment of the trial court is
affirmed.
Affirmed.