concurring.
I concur in the majority’s decision that the conviction in this case should be affirmed. I also agree with both the majority and the dissent that the Middlebrooks error in this case requires a remand for re-sentencing. I write separately because I disagree with the *399majority’s rationale for affirming the conviction.
At trial, four out-of-court statements made by co-defendants Danny Branam and Ernest Walker were admitted without objection by the defendant under the co-conspirator exception to the hearsay rule. The majority concludes that admission of the statements was error, but that the error was harmless and does not require reversal. After reviewing the record, I conclude that appellate review of the issue has been waived as a result of the defendant’s tactical decision not to object at trial.
As the State points out, it is a well-established rule that a defendant’s failure to timely object to the introduction of evidence constitutes a waiver of appellate review of the issue. Tenn.R.App.P. 3(e); 13(b) & 36(a); see also State v. Harrington, 627 S.W.2d 345 (Tenn.1981); State v. Gregory, 862 S.W.2d 574 (Tenn.Crim.App.1993); State v. Killebrew, 760 S.W.2d 228 (Tenn.Crim.App.1988). Indeed, Rule 36(a), Tenn.RApp.P., specifically directs that relief on appeal need not be granted “to a party responsible for an error or [to a party] who faded to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.”
In this case, the defendant faded to interpose an objection to the admission of the statements even though the trial judge spe-cificady inquired if the defense objected before admitting the evidence now chadenged as error. Thus, the trial judge had no opportunity to rule on the evidence that the defendant now claims was admitted in error.
In criminal cases, however, appedate courts have been given additional authority to consider issues otherwise waived under the principle of “plain error.” Rule 52(b), Tenn.R.Crim.P. provides:
(b) Plain Error. — An error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appedate court where necessary to do substantial justice.
The dissent concludes that the issue of the admissibility of out-of-court statements made by co-defendants Branam and Walker was not waived because defense counsel argued that the State had introduced an altered copy of the transcript during trial without informing defense counsel of the alterations. Assuming the issue was waived due to defense counsel’s failure to object, the dissent then concludes that the principle of plain error applies and overturns the conviction after further concluding that the plain error was not harmless.
After carefudy reviewing the record, I disagree. First, the record does not support the dissent’s characterization of defense counsel’s argument during the hearing on the motion for new trial as an objection to admission of the tape. Defense counsel was objecting to the State’s use of one certain version of the transcript of the tape. Counsel never objected to admission of the tape itself, which was the evidence, as the trial comí repeatedly instructed the jury.
Because defense counsel did not object to admission of the tape or any of the hearsay statements now assigned as error, review of the issues is precluded unless the plain error rule appdes. However, it is wed-established that plain error rule is not appdcable when the record reflects that a defendant made a dedberate, tactical choice to waive an objection. State v. Ogle, 666 S.W.2d 58 (Tenn.1984) (stating that the plain error rule does not apply when the defendant intentionady waives an objection for tactical reasons). See also People v. Collins, 730 P.2d 293, 305 (Colo.1986); State v. Ross, 230 Conn. 183, 646 A.2d 1318, 1338 (1994); Jones v. United States, 477 A.2d 231, 242 (D.C.1984); Ferguson v. State, 642 A.2d 772, 780 (Del.1994); State v. Brown, 138 N.J. 481, 651 A.2d 19, 45 (1994); State v. Claytor, 61 Ohio St.3d 234, 574 N.E.2d 472 (1991); State v. Bullock, 791 P.2d 155, 159 (Utah 1989); Henry v. State, 861 P.2d 582, 589 (Alaska App.1993); Ellington v. Bilsel, 255 Ill.App.3d 233, 193 Ill.Dec. 353, 358-59, 626 N.E.2d 386, 291-92 (1993); State v. Vineyard, 839 S.W.2d 686, 693 (Mo.App.1992); State v. Crislip, 110 N.M. 412, 796 P.2d 1108, 1113 (App.1990); State v. Collier, 30 Or.App. 951, 569 P.2d 38, 39 (1977); United States v. Valenciar-Lucena, 925 F.2d 506, 514 (1st Cir.1991); United States v. Mill*400er, 666 F.2d 991, 998 (6th Cir.1982). In discussing the rule in the context of a Bruton violation, the Court in Ogle, stated that
when the defendant who is incriminated by such a co-defendant’s statement fails to object at trial to the admission of that statement, his conviction may be reversed on that ground only if (1) the statement constitutes plain error, (2) the statement , was an important part of the state’s case, and (3) the objection was not intentionally waived for tactical purposes.
Id., 666 S.W.2d at 60 (emphasis added) (citations omitted). Applying that rule in Ogh, the Court recognized the Bruton violation as plain error and reversed and remanded for a new trial. In so holding, the Ogle court rejected the State’s assertion that the Bruton violation was not raised for tactical reasons because the assertion was not supported by the record and was based instead on mere speculation. The Court emphasized that “[wjhether or not an appellate court should recognize the error and grant relief in the absence of an objection in the trial court must depend upon the facts and circumstances of the particular case.” Id. at 61.
In this case, the record clearly demonstrates that the defendant made a deliberate tactical decision not to object to admission of the tape at trial. In fact, counsel for the defendant in arguing the motion for new trial flatly stated, “I made a tactical decision to let that tape in.” The dissent characterizes that decision as “absurd.” On the other hand, the trial judge says it was “well thought out.” In ruling on the motion for new trial, the trial judge said of the defendant’s tactical decision to admit without objection the tape recorded conversation:
The strategic decision to let it in was clear. The strategy was well thought out in this court’s opinion because the entire theory of the defense was — is that Ray Elliott was the leader in this crime. He’s the one that fashioned it. He’s the one that sent the henchmen to conduct the crime, and may have been one of them himself under the theory of this defendant. In order to facilitate that theory you have got to put this tape into evidence so one can have an opportunity to cross-examine Naomi Ruth Elliott, and in order to set up your theory as to how she was likewise involved at least in knowledge of this — these criminal activities.
It is difficult to conceive of evidence more probative of an attorney’s reason for not objecting than the attorney’s own statement. Whether a second-guessing appellate court thinks a tactical decision is inspired or poor is not the issue on direct appeal. The issue is whether the action, or in this case, the inaction, was the result of a deliberate, tactical decision. The plain error rule is clearly not applicable when the defendant makes a deliberate tactical choice to waive an objection.
The plain error rule “should not be used to provide a second bite at the apple for a defendant whose deliberate trial strategy failed.” United States v. Vahncia-Lucena, 925 F.2d at 514. To apply the plain error rule under such circumstances would encourage defense counsel to gamble for a favorable verdict, and should the verdict be unfavorable, resort to appeal on errors which might have been obviated on objection. United States v. Campbell, 419 F.2d 1144, 1145 (5th Cir.1969).
Where, as here, the record clearly reflects that the defendant’s failure to object was a tactical decision, waiver applies and appellate review is foreclosed. Accordingly, I concur in the majority’s decision affirming the defendant’s conviction for first-degree felony murder, but do not reach the question of whether the challenged statements were admissible under the co-conspirator exception to the hearsay rule. In my view that issue has been waived.
DROWOTA and BIRCH, JJ., concur.