COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Cole man and Lemons ∗ Argued at Richmond, Virginia

MAURICE DANI EL DANCE OPINION BY v. Record No. 0434-99-2 JUDGE SAM W. COLEMAN III MAY 16, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HALIFAX COUNTY Charles L. McCorm ick, III, Judge Buddy A. Ward, Public Defender (Office of the Public Defender, on brief), for appellant. Virginia B. Theise n, Assistan t 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 co nvicted in a bench trial of threatening to bo mb a building in violation of Co de § 18.2-83. Dance argues that the trial court erred by denying his motion to suppress evidence of the out-of-cou rt identifica tion of his tape-recorded vo ice and by denying his motion to strike the testimony of J.J. Daniel. He also argues that the evidence is insufficient to support his convic tion. We disagr ee and affirm the conviction.- 2 - BACKGROUND Leslie Lavell, an employee of the Dollar Genera l Corporation, was working at the company's wa rehouse when she received a threatening te lephone call. She testifie d that the caller stated that there was a bomb inthe building and hung up. Lavell dialed "star 57" to activate a caller tracing device . Lavell spoke to the police within th irty minutes of rece iving the th reatening call. She informed th em that, based upon the caller 's accent, she believed the caller was an African-Amer ican male. Shortly after the incident, Special Agent Larry Bishop played an audio cassette for Lavell which had record ed the voice of an individual who had made a bomb threat at an other locati on. The recording was of Dance' s voice. Lave ll, however, was unable to identify that indivi dual's voice as the person who made the threatening ca ll to her earlier that evening. After learning the locationfrom where the call had reportedly been made, Trooper M.S. Roark went ther e and questioned three of the four people at the residence: Terry Le e Scott, Tarra Hendren, and Dance. Terry Lee Scott's si ster, who li ved next door, accompan ied Trooper Roark inside the reside nce, but she was not questioned. The trooper record ed the conversati on and within approximately an hour and one- half after the bomb threat, he played the recording fo r Lavell. The trooper told Lavell that the recording had be en made of the vo ices of the people from where the- 3 - bomb threat had been pl aced. Lavell quickly discounted Hendren's, a woman's voice, and Scott's, an individual whom she knew personally and who had a speech impediment. La vell continued listening to the record ing and, when Dance raised his voice in response to an accusati on from a police offi cer that he had made the threatening ca ll, Lavell identified hi m as the caller. She reiterated at tr ial that she was "a hu ndred percen t sure" the voice was the same voice as the person wh o made the threatening call and that she reco gnized it when Dance raised his voice. J.J. Daniel, manage r of Sprint's Annoyance Call Center for the mid-Atlant ic region, testifie d that after a cu stomer receives an annoying or harass ing 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, ob taining a new di al tone, and then dialing "star 57 ." Once the call trace mech anism is activated, a computer located at Sprint's ce ntral office "seizes," indexes, and stores the information until retrieva l. Daniel testified that she help ed design the system and train th e staff to retrieve and secure the informatio n. The system has been operational si nce 1989 and has retrieved more th an 100,000 calls per year. Daniel testified that the system has never misidentified a call.- 4 - Daniel testified th at on this occasi on the call trace mechanism had been activated from the te lephone at the Dollar General Store. A trace of the last call received at the store revealed the phone numb er from where the call had been placed and with that inform ation, the center determ ined the address from where the call was placed . The center then in formed the police of the address, which was He ndren's resi dence. Prior to trial, Da nce filed a moti on to suppress Lavell's identification of his voice from the audi o recording. The trial court denied the motion. ANALYSIS A. Motion to Suppress Dance argues that the trial court er red in failing to suppress evidence of Lavell's identificationof his voice on the recording beca use the voice iden tification proced ure was unduly suggestive. He also argues that Lavell 's identification was unreliable. We have not expressl y addressed the factors to be considered in reviewing the admissibility of a witness' voic e identification of a suspect. The Commonwealth and Danc e maintain that the situation is analogous to a ph otographic line up and, in particular, a sh ow-up. We agree. Accord ingly, we hold that the constitutional safeguards that apply to visual identification also apply to voice id entification. See generally State v. Gallagher ,- 5 - 668 A.2d 55, 62-63 (N.J. Super. Ct. Ap p. Div. 1995); Jefferson v. State , 425 S.E.2d 915, 918 (Ga. Ct. App. 1992); State v. Parker , 558 N.E.2d 1164, 11 69 (Ohio 1990); Vouras v. State , 452 A.2d 1165, 1167-69 (Del. 1982). "An out-of-court identificati on is admissib le if either (1) the identifica tion was not unduly suggestive; or (2) the procedure was undu ly suggestive, but the identifi cation was so reliable that ther e is no substantia l likelihood of misidentific ation." Charity v. Commonwealth , 24 Va. App. 258, 261, 482 S.E.2d 59, 60 (1997). Show-up id entification s are not per se violative of cons titutional rights, see Smith v. Thompson , 1 Va. App. 407, 411, 339 S.E.2d 556, 55 8 (1986), and such identification s will not be decl ared invalid unle ss a review of the totality of the circumstan ces shows a substa ntial likelihood of misidentif ication. 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), articu lated five factors to co nsider in determining reliability of an out-of-court visu al identification . By analogy, to determine whet her a voice iden tification 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 accu racy of the wi tness' prior de scription of- 6 - the suspect's voic e; (4) the level of cert ainty demons trated by the witness at the time of the voice identi fication; an d (5) the length of time between the cr ime and the iden tification. See id. at 199-200. Here, upon arriving at the Dollar General warehouse, the police presented Lavell with a tape recording of an unre lated bomb threat. The officer to ld Lavell that the re cording was the voice of a caller who recent ly had make a bomb threat to a similar business in the area. Although the voic e was that of Dance, Lavell was unable to identify Dance's voice as the person who had called her. Upon learning of th e location from where the call was placed, the police proceeded to the lo cation and inte rrogated the occupants, informing th em that the police al ready knew the call came from the resi dence. When the police accused Dance of making the call, Dance raised his voice and ac cused the po lice of harassing him. The police recorded thei r conversation with the occupants. WhenLavell was pres ented with this audio recording, the police told her it came from the occupa nts of the residence from which the threat ening call had beenplaced. Lavell immediately ex cluded Hendren and Scott as the caller. When Dance raised his voice in response to police accusation s that he may have made the call, La vell identified him as the caller. She- 7 - explained that she recogn ized his voice when he raised it and that she was "a hundred pe rcent sure" th at Dance was the caller. We consider the au dio recording of Dance's voic e during the police interrogation at Hendren's resi dence to be ta ntamount to a show-up. Hend ren's and Scott' s voices were immediately excludable, le aving only Dance's voice as the one for Lavell to consider. Additionally , we find that the id entification procedure was unduly suggestive. Lavell was told by the officer that the recorded conversation took place at the resi dence from where the call reportedly originat ed and that one of th e voices was probably that of the call er. However, after view ing the totali ty of the circumstances, we conclude that Lavell's identifi cation of Dance was reliable and without any substantial li kelihood of misidentificat ion due to the certainty expressed by Lavell in her identification and her explanat ion for that certainty. Lavell testified that she clea rly heard the call er's voice. She also was able to recall his words in their entirety. See United States v. Patton , 721 F.2d 159, 162 (6 th Cir. 19 83) (noting that the fact that wi tness could repe at the threats demonstrated a high level of concen tration). Before he aring either of the recordings, La vell identified the caller as an Afri can-American male. Moreover, less than two hours elap sed between the time Lavell received the th reatening phone call and when she identified Dance's voice on the audio recordin g. Although La vell had been- 8 - unable to identi fy Dance's voice on the first reco rding played for her, she explained that after hearing Dance's raised voice, she was certain in her iden tification. Lavell al so testified that the police did not suggest to her that she shouldidentify one of the voices as the ca ller. We find that th e voice iden tification procedure was undu ly suggestive because th e officer told Lavell that the recording came from the residence where the th reatening call had originated and one of the voices on th e recording was probably the caller. Nevertheless, ba sed on the tota lity of the circumstances, particul arly Lavell's certai nty expresse d in the identification and her explanatio n for recognizing Dance's voice, we find no substa ntial likeliho od of misidentification in Lavell's identification of Dance's voice. Accordingly, th e trial court did not err by denying Dance' s motion to suppress. B. Admission of Testimony Dance argues that th e trial court er red by admitt ing Daniel's testimony regard ing the comput erized call tracking system. Dance, relying on Penny v. Commonwealth , 6 Va. App. 494, 370 S.E.2d 314 (1988), argues that Daniel's testimony re garding the general features and the functi on of the "sta r 57" device is inadmissible because the Comm onwealth failed to es tablish the system's

accuracy. In Penny , the Commonwe alth sought to intr oduce the evidence of a computer-gen erated "call trap" record which desi gnated the- 9 - defendant's re sidence as the originating source of ob scene phone calls made to th e victim. A "call trap" is an electronic device which repairmen pr ogram into the telephone company's comp uter that enables the comp uter to auto matically rece ive and print information conc erning calls to th e particular numb er on which the trap was placed. At trial, the Commonwe alth introduced no evidence that the particular trap placed on the vi ctim's phone was tested for accuracy. Moreover, the de fendant introduc ed evidence that the voltage on th e defendant's te lephone line was abnormal and that the abnormalit y could cause ca lls to be trac ed to that number even when the ca ll did not originate fr om that number. We held that computer ge nerated call trap id entificationis the result of techno logical or scientific proc edures and, therefore, the results may be admitted only after the particul ar device is proven reliable. See id. at 498-99, 370 S. E.2d at 316-17. We find that Daniel's testim ony 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 explaine d that the system does nothing more than retrieve a pa rticular call that ha s been identified and display the teleph one number from where the call or iginated, thus, allowing the company to identify the locationfrom where the call was placed. AlthoughDaniel did not expl ain the te chnology involved, she explained how the procedure worked and testified- 10 - that in her expe rience in handli ng more than 10 0,000 telephone calls since 1989, the system had never mi sidentified a call. Accordingly, we find that the tr ial court did not err in allowing the Commonweal th's witness to testify an d to identify the number that was retrieved fr om the company's anno yance call center. C. Sufficiency On review, we view the evidence inthe light most favorable to the prevailing part y and grant to it all reasonable inferences fairly deducibl e therefrom. See Commonwealth v. Jenkins , 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). "The cred ibility of the witnesses and the weight accorded the evid ence are matters solely for the fact finder wh o has the opport unity 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) (citatio ns omitted). "The judgment of a tr ial court sittin g 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 eviden ce to supp ort it." Beck v. Co mmonwealth , 2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986). Dance argues that in light of the unreliable voice identification and the inadmissib le testimony rega rding the call tracing device, the evidence is insufficient to support the conviction. We have addressed an d rejected Danc e's contentions that the voice identifi cation was unreliable and that the evidence- 11 - of the call tracing de vice was inadmissible. Thus, the evidence, viewed in the li ght most favorable to th e Commonweal th, proved that the telephone call was traced to a loca tion to wh ich Dance had access and proved Dance was presen t less than tw o hours after the call when the police arrived to investig ate. Further, Lavell positively identified Dance's voice as that of the caller. The trial court fo und Lavell's testimon y credible and her identification reliable. Thus we find the ev idence is sufficient to support th e conviction. Accordingly, we af firm the conviction. Affirmed.- 12 - 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- 13 - 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- 14 - 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- 15 - 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- 16 - 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- 17 - the voice identification. Accordingly, I would reverse the conviction and remand for a new trial.