Maurice Daniel Dance v. Commonwealth of Virginia

528 S.E.2d 723, 32 Va. App. 466, 2000 Va. App. LEXIS 360
CourtCourt of Appeals of Virginia
DecidedMay 16, 2000
Docket0434992
StatusPublished
Cited by9 cases

This text of 528 S.E.2d 723 (Maurice Daniel Dance v. Commonwealth of Virginia) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maurice Daniel Dance v. Commonwealth of Virginia, 528 S.E.2d 723, 32 Va. App. 466, 2000 Va. App. LEXIS 360 (Va. Ct. App. 2000).

Opinions

COLEMAN, Judge.

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.

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 [470]*470location. 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 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.

[471]*471Daniel 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, 286 N.J.Super. 1, 668 A.2d 55, 62-63 (App.Div.1995); Jefferson v. State, 206 Ga.App. 544, 425 S.E.2d 915, 918 (1992); State v. Parker, 53 Ohio St.3d 82, 558 N.E.2d 1164, 1169 (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 [472]*472S.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, 97 S.Ct 2243, 2254, 53 L.Ed.2d 140 (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, 93 S.Ct. 375, 34 L.Ed.2d 401 (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 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, 93 S.Ct. at 382.

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.

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Bluebook (online)
528 S.E.2d 723, 32 Va. App. 466, 2000 Va. App. LEXIS 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maurice-daniel-dance-v-commonwealth-of-virginia-vactapp-2000.