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. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

 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. 
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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.