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. 
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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 

Commonwealth to disclose the identities of the two witnesses.1

 

 1The 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.