Opinion
Record No. 2135-93-1
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, William F. Rutherford, Judge
Ross A. Weinstein (Ashe Weinstein, on brief), for appellant.
Michael T. Judge, Assistant Attorney General, (James S. Gilmore, III, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The sole issue presented by this appeal is whether the Circuit Court of the City of Norfolk (trial court) erred by admitting into evidence and playing to the jury a tape recording of a 911 telephone call made by Daniel E. Willoughby (appellant). Appellant contends that the recording was not properly authenticated.
Appellant does not deny that he made the subject telephone call which was received by Officer Joslin Marsh (Marsh), an operator, whose duty was to respond to 911 emergency calls. Marsh testified that she "vividly" recalled receiving the 911 call at issue. She identified her voice on the tape and affirmed that the tape was an accurate recording of what she had heard and of her responses thereto.
Although at trial appellant made only the general objection that the tape was not properly authenticated, on appeal he argues that no chain of custody was proved and, in addition, argues that the tape may have been tampered with between the time it was made and the time it was produced in court. Those arguments were not addressed to the trial court. Accordingly, that objection was not made with the specificity required by Rule 5A:18.
Appellant further argues that his objection relevant to the authenticity of the tape was timely made and, for that reason, his conviction must be reversed. We disagree.
If an exhibit has a unique characteristic by which it may be identified and distinguished with reasonable certainty from others of its kind, identification by that characteristic is sufficient proof of authenticity. Washington v. Commonwealth, 228 Va. 535, 550, 323 S.E.2d 577, 587 (1984), cert. denied, 471 U.S. 1111 (1985). Here, Marsh distinguished this tape from others by "vividly" remembering the content of the tape, identifying her voice, and stating that the tape was an accurate reproduction of what had been said.
While none has been shown here, the Commonwealth is not required to exclude every conceivable possibility of substitution, alteration, or tampering with the tape. See Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357 (1987).
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.