Jason Jerome Watlington v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
JASON JEROME WATLINGTON
MEMORANDUM OPINION * BY
v. Record No. 2332-99-3 JUDGE RICHARD S. BRAY
NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on briefs),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.
Jason Jerome Watlington (defendant) was convicted in a
bench trial of one count of statutory burglary and two counts of
grand larceny. On appeal, defendant complains the trial judge
erroneously overruled a "hearsay objection" to testimony that
his name and telephone number were displayed on a "caller ID
box." Finding no error, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
While John Messick and his family were vacationing, someone
burglarized their residence. Significant property was taken
from the home, including a truck owned by Messick's business.
When the truck was found abandoned in North Carolina, stolen
articles, together with a "camouflage hat" with "Kim W. written
. . . inside," which Messick was unable to identify, were
recovered from the vehicle. Over defendant's hearsay objection,
Messick was permitted to testify that a "caller ID box,"
installed in his home, had reported a telephone call at
3:48 a.m. the morning of the burglary from a "Watlington" and a
telephone number.
Cyril Kramer, Messick's father-in-law, obtained the
telephone number from the device and entered it into a computer
system that stored names and telephone numbers of customers at
Messick's pizza restaurants, seeking a match. Defendant also
objected to this testimony, challenging the "reliability or
credibility" of Kramer's information and "the system," and,
again, asserting "hearsay." Overruling the objection, the trial
judge permitted the witness to relate "what he did," and Kramer
testified that the computer connected an address on Clement
Street and the name "Watlington" to the telephone number. The
ensuing police investigation confirmed defendant resided on
Clement Street.
- 2 -
The investigation further disclosed that a basement window
at the Messick home had been broken, removed from the sash and
placed against an exterior wall. Five latent fingerprints were
obtained from the window, all belonging to defendant. However,
no fingerprints were recovered from the truck because it "had
been wiped clean." Defendant was familiar with the Messick home
and, while denying ownership of the hat, acknowledged an
acquaintance with a Kim Whitcher.
II.
Defendant first assigns error to the admission into
evidence of "the results of a caller ID box with a last name of
Watlington over a hearsay objection without the showing of
reliability required by Virginia law."
"'Hearsay evidence is testimony in court, or written
evidence, of a statement made out of court, the statement being
offered as an assertion to show the truth of matters asserted
therein, and thus resting for its value upon the credibility of
the out-of-court asserter.'" Tatum v. Commonwealth, 17 Va. App.
585, 588, 440 S.E.2d 133, 135 (1994) (quoting McCormick on
Evidence § 246, at 584 (2d ed. 1972)). In Tatum, we concluded
that caller ID evidence is not hearsay because "there is no
'out-of-court asserter,' because the caller ID display is based
on computer generated information and not simply the repetition
of prior recorded human input or observation." Id.
- 3 -
Accordingly, guided by Tatum, we find that the caller ID
evidence in issue is not hearsay.
"An objection made at trial on one ground does not preserve
for appeal a contention on a different ground." Clark v.
Commonwealth, 30 Va. App. 406, 411, 517 S.E.2d 260, 262 (1999).
Defendant's hearsay objection to the ID evidence voiced during
trial and reliability argument presented on appeal raise
substantially different issues. Thus, we will not consider
defendant's appellate argument challenging the reliability of
the caller ID data. See Luck v. Commonwealth, 30 Va. App. 36,
49 n.1, 515 S.E.2d 325, 331 n.1 (1999); see also Rule 5A:18 ("No
ruling of the trial court . . . will be considered as a basis
for reversal unless the objection was stated together with the
grounds therefor at the time of the ruling . . . ."). "A
contrary rule would 'deny the trial court the opportunity to
consider and weigh, and, if necessary, reconsider before finally
ruling.'" Taylor v. Taylor, 27 Va. App. 209, 218 n.1, 497
S.E.2d 916, 920 n.1 (1998) (citation omitted).
Defendant next objected to Kramer's testimony relating
information obtained from the restaurant computer based upon the
caller ID report, which, arguably, again placed the caller ID
evidence in issue. On this occasion, defendant mentioned
reliability in articulating his objection. Assuming, without
deciding, that defendant was then referencing the caller ID
- 4 -
device, rather than the computer system, his argument is without
merit.
In overruling the objection, the trial court expressly
admitted the testimony solely to explain "what [Kramer] did." A
judge is presumed to consider evidence only for the purpose for
which it was admitted. Eckhart v. Commonwealth, 222 Va. 213,
216, 279 S.E.2d 155, 157 (1981). This presumption controls
"'absent clear evidence to the contrary.'" Cole v.
Commonwealth, 16 Va. App. 113, 116, 428 S.E.2d 303, 305 (1993)
(quoting Hall v. Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d
455, 462 (1992) (en banc)). The instant record does not suggest
the court considered the disputed testimony for any purpose
beyond the limitations of the ruling. To the contrary, the
court, in denying defendant's motion to strike, recounted the
persuasive evidence for the record, without mention of the
computer data.
Accordingly, we affirm the convictions.
Affirmed.
- 5 -
Benton, J., dissenting.
The Commonwealth argues that Watlington's objections
concerning hearsay and the reliability of the caller
identification evidence are procedurally defaulted.
Specifically, the Commonwealth asserts that the argument
concerning the reliability of the caller identification device
"was never made in the trial court and is, in any event, without
merit." The majority holds that Watlington's claim of
reliability is procedurally barred because his objections were
inadequate to preserve the issue for appeal. I disagree.
I.
It is well established that the primary purpose of
requiring a timely and specific objection is to "'provide the
trial [judge] with the opportunity to remedy any error so that
an appeal is not necessary.'" McLean v. Commonwealth, 30 Va.
App. 322, 331, 516 S.E.2d 717, 721 (1999) (citation omitted).
When the trial judge has an opportunity to rule on the merits of
the issue, the matter has been properly preserved for appeal.
See Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d
1,2 (1991) (en banc) (holding that an issue is properly
preserved for appeal when "the trial [judge] was adequately
advised of the defendant's position, . . . consider[ed] the
issue raised, and . . . had the opportunity to take corrective
action").
- 6 -
When Watlington's counsel objected to John Messick's
testimony concerning the identification device, the following
colloquy occurred between the attorneys and the trial judge:
[DEFENSE COUNSEL]: Your Honor, I am going
to object to this because he's testifying
to, I guess, a machine that we can't
cross-examine in this Courtroom, and we
don't know the accuracy of that testimony.
I think it would be hearsay if it is out of
Court testimony offered for the truth of the
matter asserted.
[COMMONWEALTH'S ATTORNEY]: Judge, caller ID
boxes are common devices that millions of
Americans have on their phones. They rely
upon them to identify the identity of
callers and they are commonly accepted
pieces of technology, and I don't think it
is hearsay. I think it is something that he
can testify to.
THE COURT: I think he can testify to and
you can cross examine him.
* * * * * * *
[COMMONWEALTH'S ATTORNEY]: All right. What
did the caller ID box show?
[MESSICK]: It showed that a call had come
in at 3:48 A.M. on the morning of the 28th,
and it displayed the phone number and the
last name, Watlington.
Clearly, the trial judge had the opportunity to rule on the
issue whether Messick's testimony concerning the identification
device was hearsay.
In Penny v. Commonwealth, 6 Va. App. 494, 370 S.E.2d 314(1988), we did not rule that testimony concerning a computer
display was not hearsay. The contention was made by Penny that
- 7 -
the trial judge "erred in admitting the telephone company
records without the proper foundation." Id. at 496, 370 S.E.2d
at 316. In response, the Commonwealth argued that the records
were admissible as an exception to the hearsay rule. See id. at
496-98, 370 S.E.2d at 315-17. We merely said "we do not believe
that the admissibility [of computer-generated displays] . . .
should be resolved solely by resort to traditional hearsay
analysis." Id. at 497, 370 S.E.2d at 316 (emphasis added). In
response to the parties' arguments, we held "that the call trap
results may be admitted only after the particular device in
question has been proven reliable." Id. at 499, 370 S.E.2d at
317.
Traditionally, "[i]n determining the admissibility of
computer records, when the argument has been advanced that they
are inadmissible hearsay, [Virginia courts] have employed the
. . . business records exception to the hearsay rule." Kettler
& Scott, Inc. v. Earth Technology Cos., 248 Va. 450, 457, 449
S.E.2d 782, 785 (1994); see also Simpson v. Commonwealth, 227
Va. 557, 566-67, 318 S.E.2d 386, 392 (1984) (holding that
testimony concerning a taxi's meter display was admissible as a
business records exception to the hearsay rule); Fitzhugh v.
Commonwealth, 20 Va. App. 275, 280, 456 S.E.2d 163, 165 (1995)
(quoting Kettler & Scott, Inc.). See generally Randy Snyder,
Note, Assuring the Competency of Computer-Generated Evidence, 9
Computer L.J. 103, 104 (1989) (noting that "[i]t is unlikely
- 8 -
that computer-generated evidence will be offered into evidence
for some purpose other than 'to prove the truth of a matter
asserted,' and thus is hearsay"). I agree, however, that in
Tatum v. Commonwealth, 17 Va. App. 585, 440 S.E.2d 133 (1994),
we held that testimony about a caller identification display was
not hearsay. Broadly reading our prior holding, we said "the
Penny analysis" dictates that a hearsay objection is not the
proper basis for challenging the admissibility of a homeowner's
testimony of the display generated on a telephone caller ID box.
See id. at 588, 440 S.E.2d at 135. Thus, the trial judge's
ruling, which overruled Watlington's first hearsay objection,
was consistent with our precedent in Tatum.
In Penny, however, we also made a connection between the
issues of reliability and accuracy. We expressly noted that
"the reliability of the results [of the device] . . . depend[s]
on the accuracy of the call trap device." 6 Va. App. at 498,
370 S.E.2d at 317. Thus, I would hold that Watlington's
objection concerning "accuracy" and the prosecutor's response to
that objection sufficiently put before the trial judge the issue
of the reliability of the device. See McLean, 30 Va. App. at
331, 516 S.E.2d at 721; Campbell, 12 Va. App. at 480, 405 S.E.2d
at 2.
II.
When Cyril Kramer began to testify concerning the display
on the computer used by his son-in-law's pizza restaurants, the
- 9 -
following colloquy occurred between defense counsel and the
trial judge:
[DEFENSE COUNSEL]: Your Honor, I am going
to object to this testimony.
[TRIAL JUDGE]: On what grounds?
[DEFENSE COUNSEL]: I am going to object
. . . first of all, he is saying that . . .
Messick gave him a telephone number and
. . . Messick never testified as to what
telephone number he wrote off of his caller
ID. And based on . . . Kramer's testimony,
we don't know how accurate this telephone
number is or whether . . . Kramer, himself,
looked at the caller ID and wrote down this
telephone number . . . that he put in the
system that we have no way of examining or
know nothing about to go on the reliability
or credibility of this system that he
utilized and tried to identify an address.
* * * * * * *
THE COURT: I think he can testify to what
he did.
I would hold that this objection was sufficient to preserve
Watlington's objection to the reliability of the device.
Moreover, by allowing Kramer "to testify to what he did,"
the trial judge improperly permitted the prosecutor to establish
facts about the operation of the device without the prerequisite
proof that the device was reliable. Kramer was permitted to
testify as follows:
Q. All right. What did you do with it?
A. Okay. The phone number was on the
caller ID. I looked at the phone number and
I took the phone number down. I went to the
computer in the office, okay, I dial up the
- 10 -
store, which is the NorDan store and we can
access to any part of the computer in the
NorDan store from the office. I went to the
order entry part of the program and put the
phone number in. Okay, and then it brings
up the address on Clement and the
[Watlington] name on that because the reason
it would bring it up is because a previous
order had been placed at that phone number,
at that address, and we would keep that in
our data base.
Q. Okay. And what was the address, the
name and the address that the phone number
came back to?
A. The name was [Watlington] and the street
was Clement. I don't remember the street
number.
III.
We have previously held that when the prosecutor seeks to
admit in evidence the results of a computer-generated telephone
device, the evidence must establish that the equipment is
reliable. See Tatum, 17 Va. App. at 588-89, 440 S.E.2d at 136;
Penny, 6 Va. App. at 499, 370 S.E.2d at 317. In Penny, the
prosecutor sought to introduce the evidence of a
computer-generated "call trap" record. The prosecutor
introduced no evidence, however, that the particular trap placed
on the victim's telephone "accurately traced" calls made to that
telephone. 6 Va. App. at 500, 370 S.E.2d at 317. 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. Id. at 498-99, 370 S.E.2d at 316-17. Cf.
- 11 -
Dance v. Commonwealth, 32 Va. App. 466, 474-75, 528 S.E.2d 723,
727-28 (2000) (noting that the reliability of the computer
operated "call trace" system was established by the testimony of
a technician who helped design the system and train people in
its use); Tatum, 17 Va. App. at 588-90, 440 S.E.2d at 135-36
(noting that the testimony of the homeowner may be sufficient to
establish the reliability of a telephone caller identification
device).
The evidence in this record established that the
identification devices displayed computer-generated information.
The witness was permitted to testify concerning that
information. The evidence failed to establish, however, the
reliability, the accuracy, or the proper functioning of the
devices.
The information gleened from the identification devices was
an important piece of evidence supporting these convictions.
Significantly, the prosecutor included the following references
to this evidence in his closing argument:
With reference to the phone call, the
significance of this phone call is that it
was made at 3:48 A.M. on the morning of June
28th during that twenty-four hour window
when the burglary could have occurred. And
it doesn't stretch one's imagination to
conclude that he undoubtedly made this call
to the home to find out if anybody was there
so he could then come over and burglarize
it.
- 12 -
After hearing this and other arguments of counsel, the trial
judge made no specific findings. We can only conclude that this
evidence as recited by the prosecutor was persuasive to the
trial judge when he ruled as follows in convicting Watlington:
Have the defendant stand. (Defendant
stands). Jason Jerome Watlington, based on
the evidence the Court has heard in this
case, the Court finds you guilty of
statutory burglary as charged in Indictment
#1, and guilty of grand larceny as charged
in Indictments 2 and 3.
For these reasons, I would hold that the evidence was improperly
admitted and relied upon to support the convictions. I would
reverse the convictions and remand for a new trial.
I dissent.
- 13 -