COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
DARRYL ANDRE GREGORY
v. Record No. 0625-95-4 MEMORANDUM OPINION *
BY JUDGE CHARLES H. DUFF
COMMONWEALTH OF VIRGINIA MAY 21, 1996
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Susan L. Korfanty (Office of the Public
Defender, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Darryl Andre Gregory (appellant) appeals from a judgment of
the Circuit Court of the City of Alexandria finding him guilty of
distributing cocaine. Appellant challenges the trial court's
ruling that the police officer's identification of him was
reliable and admissible. He further argues that the trial court
should have required the Commonwealth to disclose the identity of
two individuals who accompanied the police officer when she
contacted the person who sold drugs to her. We disagree and
affirm appellant's conviction.
Facts
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the facts showed that on October 15, 1992,
Officer Renee Holden, an experienced police officer, was involved
in an undercover narcotics operation in Alexandria. During
daylight hours, Holden saw a person she later identified as
appellant standing on the front porch of an apartment building.
At the time, Holden was accompanied by two unidentified
individuals. Holden and appellant made eye contact, and
appellant asked if Holden was "looking for anything." Holden
said that she was. Holden and the two individuals proceeded onto
the porch. Holden told appellant she was looking for two "20s,"
meaning twenty dollar pieces of crack cocaine. Appellant and
Holden went inside the doorway of the building.
Holden gave money to appellant, and he gave her two pieces
of cocaine in exchange. Holden asked if appellant was "always
out here." Appellant told her that he was, and that his name was
"Darryl." During the three to four minutes of the transaction,
Holden focused upon appellant's face and clothing so she could
later identify him.
Immediately after the purchase, Holden left the area with
the two people who had accompanied her there. She contacted
Detective George King by telephone and told him what had
occurred. Holden described the suspect as a black male who was
"not too tall" and was wearing a blue horizontally striped shirt,
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dark blue jeans, a silver chain link belt, and black and white
Adidas tennis shoes. Holden told King the location of the
transaction and that the seller's name was "Darryl."
King arrived in the area of the sale seven to ten minutes
after his conversation with Holden. King saw appellant, whom
King knew was named "Darryl." Appellant was wearing clothing
that exactly matched the description Holden had provided. No one
in the vicinity was dressed similarly.
The next day, King showed Holden two photographs, one of
them of appellant. Holden selected appellant as the person who
sold cocaine to her the day before.
At trial, Holden stated that her identification of appellant
as the one who sold the cocaine was based upon her recollection
of the event, and that she was "one hundred percent" certain
about the identification.
The Identification Issue
In Hill v. Commonwealth, 2 Va. App. 683, 693, 347 S.E.2d
913, 918 (1986), this Court set forth the applicable standards
for determining if the trial court should have suppressed an
out-of-court identification:
Such evidence will be admitted if either (a)
the identification was not unduly suggestive,
or (b) the procedure was unduly suggestive,
but the identification is nevertheless so
reliable, in accordance with the factors
noted in [Neil v.] Biggers [, 409 U.S. 188
(1972),] and [Manson v.] Brathwaite [, 432
U.S. 98 (1977)], that there is no substantial
likelihood of misidentification.
Factors affecting the reliability of an identification include
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the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy of
the witness' prior description of the
criminal, the level of certainty demonstrated
by the witness at the confrontation, and the
length of time between the crime and the
confrontation.
Biggers, 409 U.S. at 199-200. In evaluating reliability, courts
must look to the totality of the circumstances present in a given
case. See McCary v. Commonwealth, 228 Va. 219, 234, 321 S.E.2d
637, 644 (1984); Doan v. Commonwealth, 15 Va. App. 87, 97, 422
S.E.2d 398, 404 (1992).
Appellant argues that Holden's identification of him was
obtained through an unduly suggestive procedure compelling her to
choose one of the photographs. There is no "per se rule of
exclusion" applied in assessing the suggestiveness of an
identification procedure. Bryant v. Commonwealth, 10 Va. App.
421, 425, 393 S.E.2d 216, 218 (1990). Because Holden viewed two
photographs, the procedure here was one step removed from that
employed in Wise v. Commonwealth, 6 Va. App. 178, 184, 367 S.E.2d
197, 200-01 (1988), where this Court found that the display of a
single photograph was unduly suggestive. Unlike the display of a
single photograph it may not be said that the display of two
photographs carries with it the suggestion that a particular
photograph depicts the suspect. Furthermore, there is no
evidence that, in showing Holden the photographs, King exerted
any pressure upon her to make an identification.
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Assuming for the sake of argument that the identification
procedure contained an element of suggestiveness, the record
establishes the reliability of the identification nonetheless.
Knowing she would have to identify the drug seller later, Holden
observed him for several minutes under favorable lighting
conditions. Her description of the perpetrator's physical
attributes and clothing, including the brand of his shoes,
demonstrated her attention to detail. King saw appellant minutes
after the transaction, and he matched the description Holden had
provided. Furthermore, the time lapse between the identification
and the crime was minimal, only one day. Holden harbored no
doubt concerning the accuracy of the identification.
Under the totality of the circumstances, Holden's
identification of appellant was so reliable that no substantial
likelihood of misidentification existed. Thus, the trial court
did not err in ruling that Holden's out-of-court identification
of appellant was admissible.
The "Informant" Identity Issue
Characterizing the two individuals who accompanied Holden on
the day of the sale as "informants," appellant argues the trial
court should have required the Commonwealth to disclose their
identities because their testimony could have cast doubt upon the
Commonwealth's evidence proving that appellant sold Holden
cocaine. As a general rule, "the identity of a person furnishing
the prosecution with information concerning criminal activities
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is privileged." Gray v. Commonwealth, 233 Va. 313, 328, 356
S.E.2d 157, 165, cert. denied, 484 U.S. 873 (1987). In Roviaro
v. United States, 353 U.S. 53 (1957),
the Supreme Court established an exception to
this general rule, in federal cases, and held
that "where the disclosure of an informer's
identity . . . is relevant and helpful to the
defense of an accused, or is essential to a
fair determination of a cause, the privilege
[of nondisclosure] must give way." The Court
stated that "no fixed rule with respect to
disclosure is justifiable" and explained that
"the problem is one that calls for balancing
the public interest in protecting the flow of
information [to the police] against the
individual's right to prepare his defense."
Daniel v. Commonwealth, 15 Va. App. 736, 739-40, 427 S.E.2d 423,
425 (1993) (citations omitted).
The privilege of nondisclosure applies to protect the
identity of those who actually provide the police with
information about criminal activities. See Gray, 233 Va. at 328,
356 S.E.2d at 165. Indeed, the privilege is referred to as "the
informer's privilege." Lanier v. Commonwealth, 10 Va. App. 541,
550, 394 S.E.2d 495, 501 (1990). In distinguishing between an
"informant" and a "tipster" for purposes of performing a Roviaro
analysis, this Court has presupposed that the person whose
identity the defendant sought to discover gave the police
information leading to the defendant's arrest. See Stephenson v.
Commonwealth, 18 Va. App. 247, 250, 443 S.E.2d 173, 175 (1994);
Keener v. Commonwealth, 8 Va. App. 208, 212, 380 S.E.2d 21, 24
(1989). Whereas the role of a "tipster" does not extend beyond
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that of simply providing information, an "'informant' is usually
a person who participates in the transaction that results in the
arrest and who the record shows could relate testimony helpful to
the defense." Stephenson, 18 Va. App. at 250, 443 S.E.2d at 175.
The evidence does not demonstrate that the involvement of
the two witnesses in this case rose even to the level of a
"tipster," whose identity generally is not subject to disclosure.
See Daniel, 15 Va. App. at 740, 427 S.E.2d at 425. Although
appellant had the opportunity to elicit such evidence at the
suppression hearing, the record does not show that the two
witnesses in this case provided the police with any information,
much less information contributing to appellant's arrest. The
two witnesses simply accompanied Holden when she first approached
the seller, were present when she discussed the sale with him,
and departed with Holden after she purchased the drugs. The two
individuals did not participate in the transaction, did not
observe it, and did not instigate it. Thus, the two witnesses
were not "informants" with respect to appellant, and the
"informer's privilege" had no application here. For this reason,
the trial court did not err in refusing to require the
1
Commonwealth to disclose the identities of the two witnesses.
1
The Commonwealth, of course, was not relieved of its
responsibility to provide the defense with material exculpatory
evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
However, the issue of whether the Commonwealth possessed
exculpatory evidence pertaining to the two witnesses is not
before us, and we do not address it.
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For the foregoing reasons, appellant's conviction is
affirmed.
Affirmed.
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