COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
MAURICE DANIEL DANCE
OPINION BY
v. Record No. 0434-99-2 JUDGE SAM W. COLEMAN III
MAY 16, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Maurice Daniel Dance was convicted in a bench trial of
threatening to bomb a building in violation of Code § 18.2-83.
Dance argues that the trial court erred by denying his motion to
suppress evidence of the out-of-court identification of his
tape-recorded voice and by denying his motion to strike the
testimony of J.J. Daniel. He also argues that the evidence is
insufficient to support his conviction. We disagree and affirm
the conviction.
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
BACKGROUND
Leslie Lavell, an employee of the Dollar General Corporation,
was working at the company's warehouse when she received a
threatening telephone call. She testified that the caller stated
that there was a bomb in the building and hung up. Lavell dialed
"star 57" to activate a caller tracing device. Lavell spoke to
the police within thirty minutes of receiving the threatening
call. She informed them that, based upon the caller's accent, she
believed the caller was an African-American male.
Shortly after the incident, Special Agent Larry Bishop played
an audio cassette for Lavell which had recorded the voice of an
individual who had made a bomb threat at another location. The
recording was of Dance's voice. Lavell, however, was unable to
identify that individual's voice as the person who made the
threatening call to her earlier that evening.
After learning the location from where the call had
reportedly been made, Trooper M.S. Roark went there and questioned
three of the four people at the residence: Terry Lee Scott, Tarra
Hendren, and Dance. Terry Lee Scott's sister, who lived next
door, accompanied Trooper Roark inside the residence, but she was
not questioned. The trooper recorded the conversation and within
approximately an hour and one-half after the bomb threat, he
played the recording for Lavell. The trooper told Lavell that the
recording had been made of the voices of the people from where the
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bomb threat had been placed. Lavell quickly discounted Hendren's,
a woman's voice, and Scott's, an individual whom she knew
personally and who had a speech impediment. Lavell continued
listening to the recording and, when Dance raised his voice in
response to an accusation from a police officer that he had made
the threatening call, Lavell identified him as the caller. She
reiterated at trial that she was "a hundred percent sure" the
voice was the same voice as the person who made the threatening
call and that she recognized it when Dance raised his voice.
J.J. Daniel, manager of Sprint's Annoyance Call Center for
the mid-Atlantic region, testified that after a customer receives
an annoying or harassing telephone call, the customer is able to
call the center and report the date and time of the call and the
telephone line on which the call was received. A customer is able
to originate a trace by hanging up, obtaining a new dial tone, and
then dialing "star 57." Once the call trace mechanism is
activated, a computer located at Sprint's central office "seizes,"
indexes, and stores the information until retrieval. Daniel
testified that she helped design the system and train the staff to
retrieve and secure the information. The system has been
operational since 1989 and has retrieved more than 100,000 calls
per year. Daniel testified that the system has never
misidentified a call.
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Daniel testified that on this occasion the call trace
mechanism had been activated from the telephone at the Dollar
General Store. A trace of the last call received at the store
revealed the phone number from where the call had been placed and
with that information, the center determined the address from
where the call was placed. The center then informed the police of
the address, which was Hendren's residence.
Prior to trial, Dance filed a motion to suppress Lavell's
identification of his voice from the audio recording. The trial
court denied the motion.
ANALYSIS
A. Motion to Suppress
Dance argues that the trial court erred in failing to
suppress evidence of Lavell's identification of his voice on the
recording because the voice identification procedure was unduly
suggestive. He also argues that Lavell's identification was
unreliable.
We have not expressly addressed the factors to be considered
in reviewing the admissibility of a witness' voice identification
of a suspect. The Commonwealth and Dance maintain that the
situation is analogous to a photographic lineup and, in
particular, a show-up. We agree. Accordingly, we hold that the
constitutional safeguards that apply to visual identification also
apply to voice identification. See generally State v. Gallagher,
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668 A.2d 55, 62-63 (N.J. Super. Ct. App. Div. 1995); Jefferson v.
State, 425 S.E.2d 915, 918 (Ga. Ct. App. 1992); State v. Parker,
558 N.E.2d 1164, 1169 (Ohio 1990); Vouras v. State, 452 A.2d 1165,
1167-69 (Del. 1982).
"An out-of-court identification is admissible if either
(1) the identification was not unduly suggestive; or (2) the
procedure was unduly suggestive, but the identification was so
reliable that there is no substantial likelihood of
misidentification." Charity v. Commonwealth, 24 Va. App. 258,
261, 482 S.E.2d 59, 60 (1997). Show-up identifications are not
per se violative of constitutional rights, see Smith v. Thompson,
1 Va. App. 407, 411, 339 S.E.2d 556, 558 (1986), and such
identifications will not be declared invalid unless a review of
the totality of the circumstances shows a substantial likelihood
of misidentification. See Manson v. Brathwaite, 432 U.S. 98, 116
(1977); Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669,
674 (1987).
The United States Supreme Court in Neil v. Biggers, 409 U.S.
188 (1972), articulated five factors to consider in determining
reliability of an out-of-court visual identification. By analogy,
to determine whether a voice identification is admissible, the
court must consider: (1) the witness' opportunity to hear the
accused at the time of the crime; (2) the witness' degree of
attention; (3) the accuracy of the witness' prior description of
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the suspect's voice; (4) the level of certainty demonstrated by
the witness at the time of the voice identification; and (5) the
length of time between the crime and the identification. See id.
at 199-200.
Here, upon arriving at the Dollar General warehouse, the
police presented Lavell with a tape recording of an unrelated bomb
threat. The officer told Lavell that the recording was the voice
of a caller who recently had make a bomb threat to a similar
business in the area. Although the voice was that of Dance,
Lavell was unable to identify Dance's voice as the person who had
called her.
Upon learning of the location from where the call was placed,
the police proceeded to the location and interrogated the
occupants, informing them that the police already knew the call
came from the residence. When the police accused Dance of making
the call, Dance raised his voice and accused the police of
harassing him. The police recorded their conversation with the
occupants. When Lavell was presented with this audio recording,
the police told her it came from the occupants of the residence
from which the threatening call had been placed. Lavell
immediately excluded Hendren and Scott as the caller. When Dance
raised his voice in response to police accusations that he may
have made the call, Lavell identified him as the caller. She
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explained that she recognized his voice when he raised it and that
she was "a hundred percent sure" that Dance was the caller.
We consider the audio recording of Dance's voice during the
police interrogation at Hendren's residence to be tantamount to a
show-up. Hendren's and Scott's voices were immediately
excludable, leaving only Dance's voice as the one for Lavell to
consider. Additionally, we find that the identification procedure
was unduly suggestive. Lavell was told by the officer that the
recorded conversation took place at the residence from where the
call reportedly originated and that one of the voices was probably
that of the caller. However, after viewing the totality of the
circumstances, we conclude that Lavell's identification of Dance
was reliable and without any substantial likelihood of
misidentification due to the certainty expressed by Lavell in her
identification and her explanation for that certainty.
Lavell testified that she clearly heard the caller's voice.
She also was able to recall his words in their entirety. See
United States v. Patton, 721 F.2d 159, 162 (6th Cir. 1983) (noting
that the fact that witness could repeat the threats demonstrated a
high level of concentration). Before hearing either of the
recordings, Lavell identified the caller as an African-American
male. Moreover, less than two hours elapsed between the time
Lavell received the threatening phone call and when she identified
Dance's voice on the audio recording. Although Lavell had been
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unable to identify Dance's voice on the first recording played for
her, she explained that after hearing Dance's raised voice, she
was certain in her identification. Lavell also testified that the
police did not suggest to her that she should identify one of the
voices as the caller. We find that the voice identification
procedure was unduly suggestive because the officer told Lavell
that the recording came from the residence where the threatening
call had originated and one of the voices on the recording was
probably the caller. Nevertheless, based on the totality of the
circumstances, particularly Lavell's certainty expressed in the
identification and her explanation for recognizing Dance's voice,
we find no substantial likelihood of misidentification in Lavell's
identification of Dance's voice. Accordingly, the trial court did
not err by denying Dance's motion to suppress.
B. Admission of Testimony
Dance argues that the trial court erred by admitting Daniel's
testimony regarding the computerized call tracking system. Dance,
relying on Penny v. Commonwealth, 6 Va. App. 494, 370 S.E.2d 314
(1988), argues that Daniel's testimony regarding the general
features and the function of the "star 57" device is inadmissible
because the Commonwealth failed to establish the system's
accuracy.
In Penny, the Commonwealth sought to introduce the evidence
of a computer-generated "call trap" record which designated the
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defendant's residence as the originating source of obscene phone
calls made to the victim. A "call trap" is an electronic device
which repairmen program into the telephone company's computer that
enables the computer to automatically receive and print
information concerning calls to the particular number on which the
trap was placed. At trial, the Commonwealth introduced no
evidence that the particular trap placed on the victim's phone was
tested for accuracy. Moreover, the defendant introduced evidence
that the voltage on the defendant's telephone line was abnormal
and that the abnormality could cause calls to be traced to that
number even when the call did not originate from that number. We
held that computer generated call trap identification is the
result of technological or scientific procedures and, therefore,
the results may be admitted only after the particular device is
proven reliable. See id. at 498-99, 370 S.E.2d at 316-17.
We find that Daniel's testimony was sufficient to establish
the reliability of the computer operated "call trace" system.
Daniel testified that she helped design the system and train
people in its use. She explained that the system does nothing
more than retrieve a particular call that has been identified and
display the telephone number from where the call originated, thus,
allowing the company to identify the location from where the call
was placed. Although Daniel did not explain the technology
involved, she explained how the procedure worked and testified
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that in her experience in handling more than 100,000 telephone
calls since 1989, the system had never misidentified a call.
Accordingly, we find that the trial court did not err in allowing
the Commonwealth's witness to testify and to identify the number
that was retrieved from the company's annoyance call center.
C. Sufficiency
On review, we view the evidence in the light most favorable
to the prevailing party and grant to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Jenkins, 255 Va.
516, 521, 499 S.E.2d 263, 265 (1998). "The credibility of the
witnesses and the weight accorded the evidence are matters solely
for the fact finder who has the opportunity to see and hear that
evidence as it is presented." Sandoval v. Commonwealth, 20 Va.
App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted).
"The judgment of a trial court sitting without a jury is entitled
to the same weight as a jury verdict, and will not be disturbed on
appeal unless plainly wrong or without evidence to support it."
Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643
(1986).
Dance argues that in light of the unreliable voice
identification and the inadmissible testimony regarding the call
tracing device, the evidence is insufficient to support the
conviction. We have addressed and rejected Dance's contentions
that the voice identification was unreliable and that the evidence
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of the call tracing device was inadmissible. Thus, the evidence,
viewed in the light most favorable to the Commonwealth, proved
that the telephone call was traced to a location to which Dance
had access and proved Dance was present less than two hours after
the call when the police arrived to investigate. Further, Lavell
positively identified Dance's voice as that of the caller. The
trial court found Lavell's testimony credible and her
identification reliable. Thus we find the evidence is sufficient
to support the conviction.
Accordingly, we affirm the conviction.
Affirmed.
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Benton, J., dissenting.
For the reasons stated in the majority opinion, I agree
that the voice identification procedure was unduly suggestive;
however, I disagree with the majority's finding that the
identification nonetheless was reliable.
"Suggestive confrontations are disapproved because they
increase the likelihood of misidentification." Neil v. Biggers,
409 U.S. 188, 198 (1972).
The constitutional safeguards that apply to
visual identifications also apply to voice
identifications. [Thus, a] "voice
identification is inadmissible if its
reliability is outweighed by the
suggestiveness of the identification
procedure." "Reliability depends on such
factors as the witness's opportunity to hear
the accused and the consistency with prior
voice identifications." In other words, the
witness must have an adequate basis for
comparing defendant's voice with the voice
he or she identified as the voice of the
assailant.
State v. Gallagher, 668 A.2d 55, 62-63 (N.J. Super. Ct. App.
Div. 1995) (citations omitted); see also United States v.
Schultz, 698 F.2d 365 (8th Cir. 1983). "It is the likelihood of
misidentification which violates a defendant's right to due
process." Biggers, 409 U.S. at 198. Thus, a voice
identification is inadmissible when the evidence establishes a
substantial likelihood of misidentification. See id.
The record establishes a substantial likelihood of
misidentification by Leslie Lavell. The record fails to prove
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that Lavell had the opportunity to give a significant degree of
attention to the voice she heard on the telephone. See id. at
199 (stating that one of the factors to be considered in
evaluating the likelihood of misidentification is the "witness'
degree of attention"). She received only one telephone call
from the person who made the threat and did not specifically
indicate the length of the call. Lavell's description of the
words spoken suggests, however, that the call was very brief.
She testified that "the person on the phone said, it's a bomb in
the MF building and then hung up." Although Lavell reported to
the police that the caller was an African-American male, she did
not otherwise describe the caller. She did not say whether the
voice was low or high pitched, deliberate, excited, or otherwise
distinctive.
In addition to the brevity of the call, the other evidence
also detracts from Lavell's claim of certainty of
identification. See id. (stating that another factor is "the
level of certainty demonstrated by the witness at the
confrontation"). Within a half-hour after she received the
call, a police officer asked Lavell to listen to a recording of
a person's voice. She did, but could not recognize the voice.
The evidence proved Dance's voice was on that recording. Thus,
Lavell could not identify Dance's voice shortly after the call
and within the same context of the call. Her failure to do so
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undermines both her initial degree of attention and the level of
certainty that she later claimed to have regarding the voice
identification.
When the officer entered Tarra Hendren's residence, three
people were then present -- Dance, a woman, and a man who
stutters. While making an audio recording of their
conversations, the officer confronted the three people and
accused Dance of making the telephone call. When the officer
took that recording to Lavell, she understood from the officer's
comments that the recording concerned the bomb threat she had
received. She also knew the recording had been made after she
received the telephone call. As Lavell listened to the
recording, she heard the officer make the accusation that
someone from the house had called in a bomb threat to her.
Clearly, the likelihood of "misidentification is . . .
heightened if the police indicate to the witness that they have
other evidence that one of the persons . . . committed the
crime." Simmons v. United States, 390 U.S. 377, 383 (1968).
Moreover, no evidence tends to prove that the time that elapsed
between the telephone call to Lavell and the officer's arrival
at Hendren's residence was so short that it was unlikely another
person had left the residence before the officer arrived.
When the officer began "conversing" with Dance, the audio
recording captured Dance's protest. Lavell testified that, when
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she heard a man "raising his voice . . . [, saying] they were
harassing him when they were trying to say that he did it," she
identified that person as the caller. Lavell did not testify,
however, that the caller who made the bomb threat raised his
voice.
"The suggestive elements in this
identification procedure made it all but
inevitable that [Lavell] would identify
[Dance] whether or not he was in fact "the
man." In effect, the police repeatedly said
to [Lavell], "This is the man." This
procedure so undermined the reliability of
the . . . identification as to violate due
process."
Foster v. California, 394 U.S. 440, 443 (1969).
The totality of these circumstances does not support a
finding of reliability. The evidence fails to prove that Lavell
had an adequate basis for making the comparison between the
caller and Dance's voice. One half-hour after the call, she
could not identify Dance's voice as the caller. Later, the
police essentially told Lavell the second recording would have
the voice of the caller. The recording on which Lavell claims
to have identified the caller contained voices of Dance, a woman
and a man who stutters. The voices of the woman and the man who
stutters would have been distinctive and were not consistent
with the voice of the caller, as initially described by Lavell.
In other words, it was "all but inevitable," id., that Lavell
would eliminate the voices of the woman and the stuttering man
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and identify the remaining voice as the caller. Indeed, Lavell
testified that she could eliminate the voice of the stuttering
man because she knew him.
In addition, the conclusion is unavoidable that, when
Lavell heard Dance's voice on the first recording and could not
identify that voice as the caller, the repetition of his voice
on the second recording, after the suggestive representations,
made it inevitable that she would then say Dance was the caller.
The evidence leaves to speculation whether Lavell had the
ability to discern that the second recording contained a voice
familiar to her because it was indeed the caller or, rather,
merely because it was the voice she heard on the first
recording. The substantial likelihood of misidentification
flowing from this circumstance alone is compounded by the
officer's representation to her that the second recording was
made at the house where the call originated and that one of the
voices was that of the caller.
The explanation for the identification is inextricably
linked to the suggestive representations the police made to
Lavell. Those suggestive representations undermine the
credibility of the identification and establish more than a
substantial likelihood of misidentification. For these reasons,
I would hold that the trial judge erred in refusing to suppress
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the voice identification. Accordingly, I would reverse the
conviction and remand for a new trial.
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