State v. Kinsey , 173 Conn. 344 ( 1977 )

Bogdanski, J.

The defendant was charged in an information with the sale of narcotics in violation of § 19-480 (a) of the General Statutes and found guilty on a trial to a jury. He appealed from the judgment rendered on the verdict and briefed the following issues: (1) error in the denial of his motion to suppress, (2) error in certain rulings on evidence, and (3) error in permitting certain arguments to the jury.

Evidence was submitted at the trial from which the jury could have found the following facts: In the afternoon of June 9, 1971, Officer Michael DiLullo, a police undercover agent, was approached by an individual known to him from “street intelligence” as Willie Tripp. That individual offered to sell him heroin, and the sale was made. After the sale, Officer DiLullo returned to headquarters and viewed an array of photographs. From that array, he selected a photo of the defendant as the individual who had sold him the heroin. A warrant was subsequently issued for the arrest of James Kinsey a/k/a Willie Tripp. When the defendant learned of the warrant, he appeared at police headquarters, denied any participation in the sale, and claimed that the officer erred in identifying him. He informed the police of the existence of a cousin of his by the name of Willie Tripp, who resembles him, and who had been involved with narcotics. Although Willie Tripp was later arrested on other charges, he was never seen by Officer DiLullo.

The defendant claims that the testimony of Officer DiLullo with respect to the photographic identification should not have been admitted into evidence because that identification was impermissibly tainted by the procedure used. He also claims that no independent basis for the subsequent in-court identification was ever established. The court held a hearing-on the motion to suppress. It found that the photographic identification procedure was not impermis-sibly suggestive. The court also found that the in-court identification of the defendant was independent of the photographic identification.

On a motion to suppress, the moving party has “the initial burden ... of proving to the satisfaction of the trial court that the photographic identification was [in some manner] unconstitutional.” State v. Hafner, 168 Conn. 230, 235, 362 A.2d 925. Although such an identification procedure is not inherently suspect, any improper elements in the procedure may make it “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247. The totality of surrounding circumstances must be examined to determine whether a defendant has established that the proceeding was impermissibly suggestive. Furthermore, evidence relating to a pretrial identification may be admissible at trial despite an unnecessarily suggestive procedure if, on the entire factual situation, the identification itself was reliable. Manson v. Brath-waite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140; Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401; State v. Hafner, supra, 236, 241.

In this ease, the photographs used in the out-of-court identification procedure were not preserved. A record, however, was kept by the police of the identification numbers of the individuals whose photographs were shown to Officer DiLullo. Photographs of those same individuals were then introduced at the hearing to suppress. They consisted of bust photos of individuals of approximately the same size, age and build as the defendant. Testimony was offered that the photos were not presented in any suggestive manner and that the officer identified the defendant without hesitation. No evidence was offered to show that any particular photograph was singled out or that the police did anything to influence the selection of the defendant’s photograph. In view of those circumstances, the court did not err in denying the motion to suppress. See Manson v. Brathwaite, supra.

The defendant next claims that the trial court denied him due process of law by excluding testimony that suggested that an individual other than the defendant had committed the crime.¹ Ordinarily, evidence concerning a third party’s involvement is not admissible until there is some evidence which directly connects that third party with the crime. State v. Perelli, 125 Conn. 321, 328, 5 A.2d 705. The defendant was unable to show that Willie Tripp was in the state at the time of the alleged offense or that he was selling narcotics at or about that time. The defendant did, however, offer evidence to show Willie Tripp’s heroin addiction which evidence the court ruled out as remote. It is within the trial court’s discretion to determine whether evidence offered is remote or relevant. State v. Brathwaite, 164 Conn. 617, 619, 325 A.2d 284. We find no abuse of discretion and no error in the trial court’s other rulings on evidence.

The defendant’s final claim is that he was denied due process by the action of the court in permitting the state’s attorney to make improper comments to the jury. He contends that the prosecutor was permitted to express a personal opinion as to the defendant’s guilt; to comment on the defendant’s sexual lifestyle; to comment as to possible pressure exerted upon the alibi witness; and to comment on the defendant’s failure to call Willie Tripp as a witness.

In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom. United States v. Dibrizzi, 393 F.2d 642 (2d Cir.); State v. Evans, 165 Conn. 61, 71, 327 A.2d 576. Comments to the jury will not constitute error unless they are prejudicial and deprive the defendant of a fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431. Moreover, the comments must be viewed in the context of the entire trial. United States v. Phillips, 482 F.2d 191 (8th Cir.), cert. denied, 414 U.S. 1114, 94 S. Ct. 846, 38 L. Ed. 2d 741.

An examination of the record reveals that it was the defendant himself who introduced evidence as to his lifestyle, as to the alibi witness, and as to the evidence concerning Willie Tripp. Having introduced evidence which invited these comments, the defendant is in no position to complain. Furthermore, the trial court’s instructions to the jury negated any prejudice from those comments.

There is no error.

In this opinion House, C. J., Longo and Speziale, Js., concurred.

1 The defendant offered evidence of the involvement of the defendant’s cousin, Willie Tripp, in the sale of narcotics; of the lifestyles of narcotics dealers; and of the defendant’s lifestyle as being different from that of narcotics dealers. Although the court initially excluded that testimony, the evidence was later admitted. Error cannot be predicated on the court’s exclusion of evidence which is later admitted. Gillette v. Schroeder, 133 Conn. 682, 685, 54 A.2d 498.