                     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


                                - 2 -
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.




                               - 3 -
     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,


                                 - 4 -
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


                               - 5 -
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




                               - 6 -
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


                                - 7 -
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


                                  - 8 -
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


                              - 9 -
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


                               - 10 -
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.




                             - 11 -
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

                              - 12 -
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


                               - 13 -
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


                               - 14 -
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


                              - 15 -
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




                             - 16 -
the voice identification.   Accordingly, I would reverse the

conviction and remand for a new trial.




                             - 17 -
