Matthew J. Blackstone v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 7, 1997
• Docket: 1077963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Coleman Argued at Salem, Virginia

MATTHEW J. BLACKSTONE MEMORANDUM OPINION * BY v. Record No. 1077-96-3 JUDGE JAMES W. BENTON, JR. OCTOBER 7, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Charles H. Smith, Jr., Judge

David L. Scyphers (Johnson, Scyphers & Austin, P.C., on brief), for appellant. Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Matthew J. Blackstone was convicted of using obscene

language over the telephone in violation of Code § 18.2-427.

Blackstone contends that the trial judge erred in (1) allowing a

non-expert to testify about the operation of a caller

identification device; (2) allowing the admission of testimony

and photographic evidence of a caller identification device when

the reliability of the device had not been established; and (3)

not striking the Commonwealth's evidence because of inadequate

identification of Blackstone and Blackstone's unrefuted alibi.

For the reasons that follow, we affirm the conviction.

I.

The statement of facts recites that Ms. Agner testified that

a recorded message was left on her answering machine on March 14, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1995 containing a detailed description of sexual acts the caller

desired to perform on Agner. On May 11, 1995, Agner personally

answered the telephone at 5:52 a.m. and listened as the caller

spoke Agner's name and said, "how about a blow job?" She

recognized the caller's voice as the voice on the March 14

message.

Agner had a caller identification device that showed the

telephone numbers from which incoming calls were made. After she

received the call on May 11, she immediately called the displayed

number and received a busy signal. She called the number again

and did not receive an answer. After Agner contacted the police,

Investigator Ken Wilson photographed the caller identification

device as it was displaying the date, May 11, the time, 5:52

a.m., and the telephone number of the offensive call. Agner testified that she heard a telephone conversation

between Investigator Wilson and a man who identified himself as

Blackstone. She recognized Blackstone's voice as that of the

caller on both the March 14 recording and the May 11 call. Agner

also heard Blackstone's voice at trial and recognized it as the

voice of the caller.

John Rohr, a regional security manager for a telephone

company, testified that Blackstone was the sole account holder

for the identified telephone number. Stating that he had general

knowledge, though not "expertise," regarding caller

identification devices, Rohr testified, over Blackstone's

2 objection, that a caller identification device retrieves the

number of a caller from the telephone network, delivers the

number to the device, and displays the number on the screen of

the device. Rohr testified that he did not know the type of

caller identification device used by Agner.

Investigator Wilson testified that he photographed Agner's

caller identification device as it was displaying the telephone

number and that he called the number on May 12, 1995. Wilson had

spoken to Blackstone before and recognized Blackstone as the

person who answered the telephone. In addition, the person who

answered identified himself to be Blackstone. During that call,

Blackstone told Wilson that he awakened at 5:15 a.m. on May 11

and left for work at approximately 5:45 a.m. Blackstone also

said that, in the past, he had been to the Abingdon Nautilus

Center. The evidence proved that Agner regularly used that

health club. Blackstone testified and denied making the calls. He

testified that he worked on May 11 and could not have been home

at the times the calls were made. He offered as evidence a

document indicating that he was at work at 6:20 a.m. on May 11,

1995. Blackstone also testified that he lived alone but that

other people often spent the night at his house.

The jury heard the March 14 message that was recorded on

Agner's telephone machine. At the conclusion of the evidence,

the jury convicted Blackstone of using obscene language on the

3 telephone in violation of Code § 18.2-427.

4 II.

Blackstone argues that the use of expert testimony to

explain the caller identification device was both necessary and

essential to the Commonwealth's case. We disagree.

Expert testimony is not necessary to establish the

reliability of a caller identification device. See Tatum v.

Commonwealth, 17 Va. App. 585, 588-90, 440 S.E.2d 133, 135-36

(1994). Although we implicitly held in Tatum that evidence of

the information displayed on a caller identification device may

be admitted only after proof that the device is reliable, id. at 589, 440 S.E.2d at 136, we did not require an expert to establish

the reliability of the device. Rather, we ruled that the user of

the caller identification device could testify as to facts

establishing the reliability of the device, including that it had

accurately displayed and identified telephone numbers on other

occasions. Id. at 589-90, 440 S.E.2d at 136.

Agner testified that she had used the caller identification

device in the past and that it had accurately listed the

telephone numbers of the people who had called her. She also

testified that she had returned telephone calls to persons whose

numbers were displayed on the device after they had called her.

We hold that this evidence provided a sufficient basis to support

the trial judge's admission of the evidence pertaining to the

caller identification device. See id.

Blackstone also argues that the trial judge erred in

5 allowing Rohr to testify because Rohr did not know the type of

caller identification device used and claimed no expertise as to

the operation of such devices. The trial judge has discretion to

determine the qualification of a witness to testify as an expert.

See Nichols v. Commonwealth, 6 Va. App. 426, 431, 369 S.E.2d

218, 220 (1988). Although Rohr did not claim to be an expert, he

had knowledge and personal experience with caller identification

devices. He merely described to the jury how a caller

identification device retrieves the number of the caller from the

telephone network, delivers the number to the device, and

displays the number on the screen of the device. On this record,

we cannot say that the trial judge abused his discretion in

concluding that Rohr had sufficient knowledge of this matter to

give value to his opinion. See Kern v. Commonwealth, 2 Va. App.

84, 86, 341 S.E.2d 397, 398 (1986).

III.

admitting a photograph of the display from the caller

identification device. "[A] photograph which is verified by the

testimony of a witness as fairly representing what that witness

has observed" and which bears some relevance to a matter in

controversy is admissible in evidence. Ferguson v. Commonwealth,

212 Va. 745, 746, 187 S.E.2d 189, 190 (1972). Agner testified

that Investigator Wilson photographed the device as it was

displaying the telephone number of the May 11 caller.

6 Investigator Wilson also testified that he photographed the

display on the caller identification device. Thus, testimony

established that the photograph depicts the display the witnesses

observed. The photograph is relevant because it shows that a

telephone call was placed to Agner's telephone from the number

listed on the display. Accordingly, we cannot say that the trial

judge abused his discretion in admitting the photograph.

IV. Blackstone argues that with Agner's limited opportunity to

hear his voice, Agner's identification of his voice was not

reliable as a matter of law. Blackstone also argues that the

recording of the March 14 message was so unclear it had to be

played twice for the jury and, thus, could not have provided the

basis for Agner to identify his voice. He further argues that

the first time Agner could attribute the voice to him was when

Investigator Wilson called Blackstone and that she identified him

only because she had no other voices with which to compare it.

All of these objections, however, merely relate to the

weight to be given Agner's testimony concerning her

identification of Blackstone's voice on the recording and during

the telephone calls. See Hammer v. Commonwealth, 207 Va. 165,

168, 148 S.E.2d 896, 897 (1966). The jury was entitled to weigh

the evidence, observe the demeanor of the witnesses, and assess

their credibility. See Campbell v. Commonwealth, 14 Va. App.

988, 994, 421 S.E.2d 652, 655-56 (1992).

7 Viewed in the light most favorable to the Commonwealth, see

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975), the evidence proved that the March 14 and May 11

obscene telephone calls were made to Agner from the same

telephone number. Agner testified that when she received the

call on May 11, she recognized the voice of the caller as the

voice on the March 14 recording. When Investigator Wilson called

the number displayed on the caller identification device and

spoke to Blackstone, Agner listened to the voice and identified

it as the voice of the caller from the two previous calls. Agner

also identified Blackstone's voice as that of the caller when she

heard him testify in court. The jury heard the recording of the March 14 call and also

listened to Blackstone's testimony during trial. Thus, the jury

had an independent opportunity to test the voice identification

evidence itself. Furthermore, contrary to Blackstone's argument,

the jury was not required to believe his testimony that he was

not the person who made the telephone calls. His documentary

evidence that he was at a place of employment at 6:20 a.m. on May

11 did not prove that he was not at home at 5:52 a.m. when the

call was made to Agner's telephone.

We, therefore, hold that the trial judge did not err in

admitting the testimony and photographic evidence of the caller

identification device and that the evidence was sufficient to

prove beyond a reasonable doubt that Blackstone committed the

8 offense.

Affirmed.