Thomas v. State , 811 P.2d 1337 ( 1991 )

BRETT, Judge,

concurs in result:

While I agree with the majority that appellant’s conviction and death sentence should be affirmed, I disagree with the analysis on one issue in particular. In his second assignment of error, appellant contends that reversible error occurred when a State witness interjected inadmissible hearsay before the trial court had a chance to sustain defense counsel’s objection. Defense counsel did not request that the jury be admonished to disregard the improper statement.

This Court held in Kelsey v. State, 744 P.2d 190 (Okl.Cr.1987), that a request that the jury be admonished does not preclude appellate review of the issue. However, the majority seems to place the burden back onto the defense counsel to do so by stating, “Such an admonishment in the present case would have been appropriate, but none was requested. Appellant now requests us to reverse his conviction regardless of the fact that the error could have been cured at trial. We are loath to reach such a result which could have easily been avoided.” (Maj. at 8). I agree that this error does not require reversal in this case because of the substantial evidence presented at trial. However, if this had been a closer case, reversal may have been required because of this issue, even if the jury had been properly admonished. In Shepard v. State, 756 P.2d 597 (Okl.Cr. 1988), it appears from the opinion that the sustained objection prevented the inadmissible hearsay from being presented to the jury. Whereas, in this case, the witness interjected the inadmissible hearsay before the trial court was able to exclude the statement. Therefore, Shepard cannot stand for the proposition that reversal would not be required under similar circumstances.

Also, this error cannot be characterized as invited, as the majority states: “Second, appellant’s failure to request admonition of the jury after the witness ignored requests to stop is in the nature of invited error.” (Maj. at 8). Black’s Law Dictionary defines invited error as:

In appellate practice, the principle of “invited error” is that if, during the progress of a cause, a party requests or moves the court to make a ruling which is actually erroneous, and the court does so, that party cannot take advantage of the error on appeal or review.

To be “invited error” in this case, defense counsel would have had to do something before the testimony was presented, not merely object to improper testimony and fail to request an admonishment.

In my view, the admission of the hearsay testimony was error, but in light of the substantial evidence of guilt presented, that error was harmless therefore I agree that the conviction and sentence should be affirmed.