EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, August 12, 2008

Two Men Walk Into A Bar: Ohio Court Finds Defendant's Appeal Barred By The Invited Error Doctrine

All of a sudden, invited error doctrine cases abound.  In its recent opinion in State v. Harp, 2008 WL 2853672 (Ohio App. 4 Dist. 2008), the Court of Appeals of Ohio addressed an evidentiary challenge, but it possibly should have been addressing (and might at some point address) an ineffective assistance of counsel claim.  Why?

Well, in Harp, a jury found Mark A. Harp guilty of one count of felonious assault based upon a fight between Harp and John Bays.  The verdict came after what essentially boiled down to the word of Harp against the word of Bays, with the former claiming that he fought Bays in self-defense after Bays threatened to shoot him and kicked him in the groin, and the latter claiming that Harp started the fight by attacking him with a broken pocketknife

During Harp's testimony, he testified, inter alia, that Bays had a reputation for shooting people.  The State thereafter "objected to testimony regarding Bays's reputation for shooting people, and Harp's lawyer represented to the court that he had instructed Harp not to discuss Bays's reputation for violence."  Both the State and Harp's attorney then agreed that the court should strike that statement and give a corrective instruction, which the court did

After Harp was convicted, he appealed, claiming, inter alia, that the court erred in striking his testimony.  The Court of Appeals disagreed, finding that Harp's trial counsel himself indicated that he instructed Harp not to discuss Bays' reputation and agreed with the State that the court should strike the testimony and give a corrective instruction.  It thus found that not only did Bays' trial counsel fail to argue that his testimony was admissible, but that he also "invited any error by moving that the testimony be stricken and that a curative instruction be given."  The court then noted that "[u]nder the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make."  It thus concluded that Harp could not complain that the trial court erred in excluding testimony regarding Bays' reputation for shooting people.

Furthermore, the Court of Appeals found that even if the invited error doctrine error doctrine were inapplicable, Harp's testimony still would have been inadmissible.  According to the court, Harp's argument for admissibility was that he was aware of Bays' reputation for shooting people, meaning that he had a bona fide fear of Bays and was acting in self-defense.  The Court of Appeals rejected this argument, finding that it was "not clear from the record that Harp was aware of Bays's reputation for violence before the fight."

It's tough to argue with any of the court's findings, but it seems to me that there was a strong possibility that Harp's trial counsel committed serious error.  Let's take the Court of Appeals at face value and assume that there was not enough evidence that Harp was actually aware of Bays' supposed reputation so that his testimony was inadmissible to prove that he feared him.  That still leaves another ground for admitting Harp's testimony.

While propensity character evidence -- evidence whose probative value relies on the aphorism, "Once a criminal, always a criminal" -- is generally inadmissible, pursuant to the "mercy rule" contained in Ohio Rule of Evidence 404(a)(2), "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same" is admissible.  In other words, Pandora's box is firmly in the defendant's hands.  If he wants to inject the issue of character into his trial, he can do so by, inter alia, presenting reputation or opinion testimony concerning the victim's bad character for a pertinent character trait, which in turn opens the door for the prosecution presenting good character evidence about the victim.  If, however, the defendant does not want character evidence to infect his trial, he merely needs to refrain from presenting any character evidence, and the prosecution will be precluded from introducing its own.

This both explains why Harp's trial counsel might have been correct or incorrect.  Under the "mercy rule," Harp at least arguably could have testified to Bays reputation for violence to establish that Bays had a reputation for acting violently and thus likely acted in conformity with that propensity by starting the bar fight.  And thus Harp's trial counsel could have been wrong in instructing him not to discuss Bays' reputation for violence.  On the other hand, maybe Harps' trial counsel was aware that if Harp testified concerning Bays' reputation for violence, the prosecution had a "murderer's row" of witnesses itching to testify about Bays' reputation for peaceableness but who would be forever frozen in the on deck circle unless Harp's opened the door (My initial thought was that Harp's testimony about Bays' reputation for violence also would have opened the door for the prosecution presenting evidence concerning Harp's violent character, which would be allowed under Federal Rule of Evidence 404(a)(1)Ohio Rule of Evidence 404(a)(1), however, does not contain a similar provision).



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