                    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


                                 -3-
             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.




                                  -4-
     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




                                 -5-
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



                                  -6-
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.



                                -7-
     For the foregoing reasons, appellant's conviction is

affirmed.

                                             Affirmed.




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