*1 THE STATE. 31524. THORNTON Pеr curiam. appellant’s appeal This is from conviction for armed robbery Superior County Court of Carroll for which years imprisonment. of 20 he received sentence the facts in the case are Some of dispute. However, the basic chronology happened of what is as follows: On October shotgun, male, a black armed entered the with State Bank and Northside branch of the Carrollton proceeded put shotgun it. the head to rob The robber employee, Williams, a bank Wanda and instructed the manager, White, branch After Charles out of his to come office. threatening an alarm to shoot Ms. Williams were sounded, he a bank tossed a sack to the floor told customer to take it to the money. and fill it with teller’s windоw put approximately bag $4,000 in
The teller and it was returned to the robber. The robber then fled light light green from the scene in a 1962 blue or Pontiac. police tip 5,1975,
On October received a from an appellant informer which identified the robber. The as the bank appellant was arrested on October and the employees two bank him identified as the robber at a lineup day. Appellant by on the same indicted was County jury robbery grand Carroll for armed on October appointed represent 8, 1975, and counsel was day. the next Appellant’s complain first two enumerations the denial the trial court of a defense motion to suppress pre-trial identification of made employees. Appellánt argument bank two basеs his suppression First, for on two theories: he was denied right lineup contrary to counsel at the Sixth and Fourteenth Amendments the United States I, I, Constitution and Art. Par. V the Sec. (Rev. 1973); § Constitution, second, Code Ann. 2-105 procedures im- used were so identification permissibly suggestive they constituted a denial of due of law.
Appellant’s
argument
that,
initial
because
adversary judicial
only suspect
was the
in had been
and the
proceedings
provide
initiated
failure to
him
counsel
with
at the
error.
lineup
Generally,
preindictment
lineup does not trigger
to counsel.
Kirby
Illinois,
1877, 32
cumstances preindictment of this lineup would require counsel appellant because was offered counsel to his prior lineup and consented, writing, participate without the рresence of an attorney. No error is shown here.
The appellant
argues
further
pre-trial
that
identification
procedures were so impermissibly
sug-
gestive that his due process guarantee
of a fair trial
was violated. This argument
rests on
assertions.
two
The
first
the two eyewitnesses
were shown
photographic displays immediately
prior to the lineup.
Appellant
urges
this procedure
so tainted
identification that
the in-court
identification must be set
aside. The test
aof
photographic
array is whether
"procedure was so impermissibly
suggestive as to give
rise
very
to a
substantial
likelihood
of irreparable
States,
misidentification.”
Simmons v. United
390 U. S.
1247)
SC
19 LE2d
A pho-
tographic
array can be suggestive when used close in
time to а lineup. However, we cannot conclude that
procedure
used
this case satisfies the Simmons test and
offended due process. The record is devoid of specifics
which would substantiate
a claim of misidentification.
Conversely,
it should be noted that both witnesses
testified that
they were able to identify
appellant
as the criminal
from his photograph.
By itself,
procedure was not
impermissibly
Cf.
suggestive.
383)
Heyward
circumstances. p. at also, Heyward, supra, See transcript does contain conflicts in the evidence on the the robber. we cannot conclude, law, as a matter of there was such a substantial likelihood of misidentification that appellant was denied a fair trial. It all comes down to questions of сredibility presented by the identification testimony of eyewitnesses two which were resolved by the jury the appellant. We hold that the totality of the circumstances shown here does not establish was denied a fair trial. authorized, The evidencе but did not require, jury conclude that appellant was the perpetrator of the bank robbery. These enumerations are, error therefore, without merit.
2. Appellant next contends that it was error for the trial court to refuse to order disсlosure of the identity of the informer whose tip led to his A arrest. Brady motion prior made to trial requesting this information. At the hearing, prosecutor asserted the so-called informer’s privilege on behalf of the state. The state *3 argued that the tiрster in this case was a mere informer and that identity was absolutely privileged. Counsel for the appellant presented the theory another individual committed the robbery and that the informer could possibly part of a conspiracy to frаme the appellant. The argument was that person this other lived in the same trailer park appellant, that he lived there with his friend, mother and girl disappeared day after and robbery was still missing, informer was female, rumored to be and that the missing person closely resembled appellant. The trial accepted prosecutor’s argument declined to grant the motion without hearing evidence by deciding that the identity of the informer w'as absolutely privileged.
The question before us is novel because disclosure was sought pursuant to a Brady motion. Usually privilege is invoked during a hearing on the of a exigency search warrant or an e.g., Keith v. See, arrest warrant. State, State, Scull v. (178 238 157; Ga. 122 App. Ga. 696 720) (1970). SE2d In however, motion brings the basic issuе in inherent the informer’s privilege
163 (83 83, 87 Brady Maryland, into focus. v. 373 U. S. sharp 215) (1962), held that "the 1194, 10 suppression LE2d SC evidence favorable to an accused prosecution violates due where the evidence is upon request guilt material either to or to . .” punishment. Brady, therefore, requires of evidence favorable disclosure a if defendant the evidence material to guilt is or Illinois, 786, v. U. punishment. Moore 408 S. 794 706) (1972). The evidence is "is of sufficient in the denial of the significance result defendant’s to a fair trial” nоt disclosed. United — — U. Agurs, States v. S. LE2d State, Accord, 393, 396, supra. Hicks v. 232 Ga. an perspective, privilege Considered from this absolute in disclosure every case informer involving impermissible a Brady motion is made.
The informer’s privilege § Ann. grounded Code (Rev. 38-1102 which statеs that no official shall be any "called on disclose state matters of policy which the state and the interest community require concealment.” underlying protect is to encourage flow information to law enforcement officiаls.
The privilege was first
judicially
recognized
State,
Anderson
App.
110) (1945),
where cross examination
as to the
of an informer was held
identity
properly
denied.
Subsequently, Crosby
App.
—
38) (1954),
a
between
distinguished
"decoy”
person
(the
used to obtain evidencе
informer-participant)
(the informer-witness)
establish
upon
facts
which to base
(the
prosecution
and an
tipster)
informer
one
mere
provides
information about criminal activity. Crosby
held
decoy
not privileged
revealed,
must
and Hodges
Gа. App.
(1958), the identity
of an informer was
*4
held
absolutely
privileged.
These
rules had
absolute
(182
(Pass
(4)
State,
been
v.
generally
followed
164
(3)
223)
(202
(1973);
State,
19
SE2d
Morrison v.
129 Ga.
(200
286)
(5)
(1973);
State,
558
App.
SE2d
Butler v.
127
(2)
261)
(194
(1972);
App.
Staggers
State,
Ga.
539
SE2d
v.
(114
142)
(1960);
101 Ga.
465
SE2d
App.
Smallwood
(1) (98
602)
v. State,
(1957);
principle expressly approach absolute case-by-case favor of а determination the trial in all decoy, cases informer-witness is involved informer-participant, may able to provide evidence the defense. See Taylor v. 49) State, (1976). App. 136 Ga. 31 See also (3) 686) Estevez v. App. 215 court approved adoption This of the Roviaro rule in 237 Connally Ga. 203 (1976), is now well as the established law of Georgia.
It is clear then that basis of both Roviaro is fundamental fairness accused.
1 Additionally, we note several United States Appeal Courts of have ruled in favor оf camera consideration to determine proper particular case. e.g., See United (3rd Jackson, Cir., States v. 384 F2d 1967), 825 cert. denied (88 nom States, sub Jackson v. 392 United U. S. 932 (1968); v. North McLawhorn (4th Carolina, 1973); F2d 1 Cir. United States v. (2d Soles, 482 1973); F2d 105 Cir., United States Lloyd, (6th 1968); 400 F2d 414 Cir., United v. Hurse, States (8th F2d Cir., 1972); Rawlinson, United States (9th F2d Cir., *5 here, the where,
Therefore, must be they together read of the state’s the question identity is disclosure if to informer-participant informer-witness or material the on issue or guilt punishment. defense the
When such an under identity informer’s is required in Brady, go the standards set fоrth the trial court must and further the the weigh materiality informer’s to the identity against defense the state’s not to privilege his instances, disclose name under Roviaro. In most the information is material under it Brady, will also be under required Roviaro. But this not so may always be and do abrogate to otherwise is to entirely the state’s a whenever privilege Brady successfully issue by raised the defendant. would if proves
We add the state the court’s satisfaction that the is a pure tipster, informer has in participаted neither offense, nor witnessed the any evidence offer would might be and hearsay the tipster’s identity inadmissible. Thus could not be or guilt material the innocence of the defendant under be Brady helpful or relevant defense under the The Roviarо. the state toward non- disclosure would not be overcome and the may state rely its follows, on It privilege. therefore, trial the court initially merely determines that the informer was pure tipster, his no identity privileged, would inquiry further be necessary. would must, triаl therefore, hearing The on judge conduct merits of the and if motion he finds the evidence under Brady weigh state’s in of the important Roviaro. One factors this will doing type of informer involved informer-participant or pure informer-witness tipster. case, In this the trial in judge refusing erred appellant’s consider Brady motion for disclosure of of the identity informer on its merits and denying solely motion on the theory
absolutely privileged. can be error cured a post-trial If before trial hearing judge cоurt. the trial judge determines should be disclosure required new trial must be ordered. judgment will be trial affirmed with direction that
court conduct a hearing to consider this issue. Appellant granted leave to file a appeal days new within decision the trial оn this issue the decision is adverse to contends in his ruling. abused discretion Appellant’s other enumerations of error have been reviewed and found to be without merit. with direction. All the Justices
Judgment affirmed concur, Gunter, J., judgment who concurs except *6 J., only, Ingram, specially. who concurs Argued January September 1976 Decided 1977.
Word, Cook, Nicholson, Nicholson & R. H. for appellant. Lee, Jr.,
William F. Attorney, District Arthur K. Bolton, General, Attorney appellee. for Justice, concurring specially.
Ingram, I concur majority opinion, but have some apprehension implication residual with the application standards can be an negated by terms, case. In plain majority really does the Roviaro mean to a trial say decides that evidence the hands of the state is so material to the defense that suppression of the evidence will result an unfair trial it may, nevertheless, be the state withheld its If privilege? this is the intended holding I majority, believe the due clause has been dealt a body It blow. is difficult for me to accept proposition the stаte has that would overriding convict an innocent person of a crime. Theoretically, could is extend- majority reasoning result I ed to conclusion. With this reservation logical wholeheartedly opinion embrace the and find it majority correct and well stated. v. GREENE. WRIGHT curiam, Per court evidence, transcript no being There discretion abused find that
cannot