specially concurring.
I cannot agree that the erroneous admission of testimony regarding a photographic line-up, in direct defiance of a trial judge’s ruling on the issue, can be “harmless error.” I concur in the result, however, because I believe that the confusing record before us indicates that the testimony regarding the photographic line-up was admitted at defendant’s behest rather than over his objection.
It is rational to conclude that defendant proposed to offer evidence that the victim could not identify his picture in the photographic line-up prepared by police officers. Such evidence tended to exculpate defendant by rebutting the inculpatory evidence such as fingerprints, the victim’s description and the composite which matched defendant’s driver’s license photograph. Trial counsel should have been concerned that *254the jury might convict defendant on the circumstantial evidence, notwithstanding the absence of direct eyewitness identification. Demonstrating the victim’s inability to make that identification certainly would have been acceptable trial strategy. If the defendant proposed to offer such evidence, then the state could properly attempt to draw the sting, as I think it did here, by presenting the testimony during direct examination in its case in chief. If, in fact, this is what happened at trial, then we have an adequate explanation for the failure of defense counsel to object, move for mistrial, or take any one of a number of other appropriate steps during and after the trial. It explains why the trial judge did not stop the prosecutor as he violated her order.
The conclusion that this did occur is compelled by several other factors from the record. First, it was the defendant that subpoenaed the officer who had handled the photographic line-up (Gerretti) for trial. Next, it was defendant that subpoenaed the photographs. Then, when Gerretti was unavailable to testify at trial, defendant moved for a continuance in order to procure his testimony. Finally, defendant unsuccessfully attempted to offer in evidence Gerretti’s police report, which describes, in detail, the victim’s inability to identify defendant.
I conclude from this record, therefore, that the admission of Gerretti’s testimony regarding the photographic line-up was the result of defendant’s trial strategy and was not error. Thus, I concur in the result.