Henry G. Perry Bey v. Commonwealth of Virginia ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
HENRY G. PERRY, S/K/A
HENRY GARFIELD PERRY BEY
MEMORANDUM OPINION * BY
v. Record No. 2409-00-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Matthew T. Foley for appellant.
Paul C. Galanides, Assistant Attorney General
(Randolph A. Beales, Acting Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.
Henry Garfield Perry Bey appeals his conviction of possession
of a firearm by a convicted felon. He alleges that the trial
court erroneously: (1) refused to exclude evidence not properly
disclosed to him; and (2) refused to grant a mistrial where the
jury heard evidence of similar crimes without a cautionary
instruction. For the reasons that follow, we affirm his
conviction.
A. Exclusion of Evidence in Violation of Discovery Order
Bey contends that the trial court erred by allowing the
Commonwealth to introduce into evidence an inculpatory statement
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that was disclosed the morning of trial. We hold that Bey waived
this objection.
"[W]here an accused unsuccessfully objects to evidence which
he considers improper and then on his own behalf introduces
evidence of the same character, he thereby waives his objection,
and we cannot reverse for alleged error." Hubbard v.
Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992); see also
Bynum v. Commonwealth, 28 Va. App. 451, 459, 506 S.E.2d 30, 34
(1998). The record, viewed in the light most favorable to the
Commonwealth, see Winckler v. Commonwealth, 32 Va. App. 836, 844,
531 S.E.2d 45, 49 (2000), makes evident that Bey, after objecting
to the admission of his statement that he committed the crime with
a .32 caliber gun, asked Detective Carrig on cross-examination,
"[W]hat caliber gun is that? Carrig responded, "[I]t is a silver
. . . .32 caliber revolver." 1 Later, Bey again asked, "What
caliber gun is it?" and Carrig responded, "[I]t appears to me to
be, from the picture, a .32." Because Bey elicited the same
evidence that he claims should have been excluded, we will not
consider his objection on appeal.
B. Motion for Mistrial
Bey appeals the trial court's denial of his motion for a
mistrial on the ground that Detective Carrig's testimony on
redirect examination referring to Bey as "involved in a series of
1
As the parties are familiar with the record, we state only
those facts necessary to an understanding of this opinion.
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robberies in Northern Virginia," prejudiced his defense. The
Commonwealth contends that Bey's motion was untimely and that Bey
invited the alleged error. We agree.
Although Bey promptly objected to this testimony, he did not
move for a mistrial until the prosecutor asked several more
questions. Hence, Bey failed to make "the motion [for a mistrial]
when the objectionable words were spoken." Yeatts v.
Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991)
(internal quotations and citations omitted); accord Bennett v.
Commonwealth, 29 Va. App. 261, 281, 511 S.E.2d 439, 448-49 (1999).
As a result, his motion was untimely, and the trial court's denial
was not error.
Moreover, the court's denial was proper because Bey invited
the alleged error. See Luck v. Commonwealth, 30 Va. App. 36, 46,
515 S.E.2d 325, 329 (1999) (defendant may not invite error and
take advantage of that error). The record shows that before
Carrig referred to Bey as "involved in a series of robberies in
Northern Virginia," Bey, during his cross-examination of
Detective Carrig, elicited testimony regarding a robbery he
committed in Fairfax County. Bey thus "opened the door" to the
trial court's admission of evidence of other crimes and failed to
show that Detective Carrig's subsequent statement on redirect
examination required the trial court to grant a mistrial. See
Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792
(1979) ("The defendant, having agreed upon the action taken by the
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trial court, should not be allowed to assume an inconsistent
position."); Commonwealth v. Beavers, 150 Va. 33, 142 S.E. 402(1928) (noting that defendant may not assume inconsistent
positions at the trial or appellate level); Luck, 30 Va. App. at
46, 515 S.E.2d at 329 (holding that a criminal defendant may not
"approbate and reprobate –- . . . invite error . . . and then to
take advantage of the situation created by his own wrong"
(internal quotation omitted)). We thus conclude that the court
did not abuse its discretion in denying Bey's motions for a
mistrial. See Bunch v. Commonwealth, 225 Va. 423, 438, 304 S.E.2d
271, 279-80 (1983) (holding that where a defendant opens the door
to a subject by soliciting testimony, the scope of examination on
that subject is within the trial court's sound discretion).
Finally, Bey complains on appeal that the judge did not
instruct the jury to disregard this portion of the witness'
testimony. Because Bey did not request such an instruction, he
cannot now raise the issue. See Clanton v. Commonwealth, 223 Va.
41, 54, 286 S.E.2d 172, 179 (1982) (holding that it is defense
counsel's duty to move for a cautionary instruction where such an
instruction is deemed necessary).
For the reasons stated, we affirm Bey's conviction.
Affirmed.
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