David Eugene Petruska v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 4, 1996
• Docket: 0748954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Bray and Senior Judge Duff Argued at Alexandria, Virginia

DAVID EUGENE PETRUSKA

v. Record No. 0748-95-4 MEMORANDUM OPINION * BY JUDGE RICHARD S. BRAY COMMONWEALTH OF VIRGINIA JUNE 4, 1996

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Michael P. McWeeny, Judge Frank W. Romano, Assistant Public Defender, for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

David Eugene Petruska (defendant) was convicted by a jury of

first degree murder. On appeal, defendant complains that the

trial court erroneously overruled his "Motion For Judgment Of

Acquittal" after a jury was unable to reach a verdict in an

earlier trial for the same offense. We find defendant's claim

procedurally barred and affirm the conviction.

The parties are fully conversant with the record in this

case, and we recite only those facts necessary to a disposition

of this appeal.

On November 14, 1994, defendant was initially tried before a

jury on the subject indictment. Deliberations began on November

16, 1994, and, the following day, the foreman advised the court

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. that the jury "[could] continue to discuss the issues but . . .

[was] no longer being productive." Deliberations resumed the

next morning, but the jury was again unable to reach a verdict.

Overruling defendant's objection and attendant motion for a

mistrial, the court then instructed the jury with the "Allen

Charge" upon motion of the Commonwealth, but continued

deliberations concluded with the jury still at an "impasse."

Defendant again moved for a mistrial and, without objection from

the Commonwealth, the court granted the motion, then scheduling a

retrial for February 28, 1995, by agreement of counsel. At retrial, defendant first moved for a "judgment of

acquittal," reasoning that "[b]ecause the Commonwealth's evidence

was insufficient to support a unanimous finding of guilt beyond a

reasonable doubt [at the previous trial], the [c]ourt should

enter a judgment of acquittal . . . ." The court overruled the

motion and the instant conviction resulted from the ensuing

trial.

"When a defendant 'successfully seeks to avoid his trial

prior to its conclusion by a motion for mistrial,' . . . [s]uch

action . . . is considered to be a 'deliberate election on his

part to forgo his valued right to have his guilt or innocence

determined before the first trier of fact.'" Harris v.

Commonwealth, 222 Va. 205, 211, 279 S.E.2d 395, 399 (1981)

(citations omitted). "No litigant, even a defendant in a

criminal case, will be permitted to approbate and

- 2 - reprobate . . . ." Fisher v. Commonwealth, 236 Va. 403, 417, 374

S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 1028 (1989). "The

defendant, having agreed upon the action taken by the trial

court, should not be allowed to assume an inconsistent position."

Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792

(1979), cert. denied, 444 U.S. 1049 (1980).

Here, defendant twice moved the trial court to order a

mistrial, without once asserting that the inconclusive proceeding

required his acquittal as a matter of law. The trial court

granted defendant's motion and, without objection from either the

Commonwealth or defendant, immediately scheduled the instant

retrial. See Cantrell v. Commonwealth, 7 Va. App. 269, 279, 373

S.E.2d 328, 332 (1988). Thus, having expressly requested the

mistrial, defendant is now precluded from complaining of

attendant error.

Moreover, it is well established that, "[o]n appeal, a

ruling of a trial court cannot be a basis for reversal unless an

objection is stated 'together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice.'" Campbell v.

Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (en

banc) (quoting Rule 5A:18). Arguments not presented to the trial

court will not be entertained on appeal. Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).

Defendant's failure to make a motion for acquittal and related

- 3 - argument during the first trial prevented the trial court from

engaging that issue while it remained subject to redress as a

part of those proceedings. Thus, finding no justification for

the "ends of justice" exception to Rule 5A:18, we are similarly

precluded from considering the argument. See Mounce v.

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).

Accordingly, the conviction is affirmed.

Affirmed.

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