COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgar dner, Frank and Humphreys Argued at Salem, Virginia

STANLEY DION TATE MEMORANDUM OPINION * BY v. Record No. 2956-04-3 JUDGE ROBERT J. HUMPHREYS DECEMBER 20, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FRANKLIN COUNTY William N. Alexander, II, Judge Andrea C. Long (Boone, Beal e, Cosby & Long, on brief), for appellant. John H. McLees, Senior Assistan t Attorney General (Judith Williams Jagdmann, Attorney General; Alice T. Armstrong, Assistant Attorney General, on brief), for appellee.
Stanley Dion Tate (“Tate”) appeals his c onviction, following a jury trial, for voluntary manslaughter. On appeal, Tate argues that the evidence was insufficient to sustain his conviction. More specifically, Ta te contends that the killing was not the result of an intentional act, but was a justifiable killing for which he s hould be acquitted. However, because defense counsel took a contrary position before the trial court, we hold that Tate is procedurally barred from arguing that the evidence was insuffici ent to support his conviction for voluntary manslaughter. Accordingly, we affirm the judgment below. Tate was indicted for murder and use of a firearm in the commission of murder and tried before a jury. Following the Commo nwealth’s case in chief, and again at the conclusion of all the evidence, Tate’s counsel moved to strike the evidence, arguing that “there is no evidence

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.- 2 - whatsoever of any malice . . . [the refore] [t]he best that we would have is either a voluntary or involuntary manslaughter.” Consistent with this legal position, Tate asked that the jury be instructed on the lesser-included offenses of voluntary and involuntary ma nslaughter. The trial court instructed the jury on second-degree mu rder, voluntary manslaughter, and involuntary manslaughter. The jury then convicted Tate of voluntary manslaughter. On appeal, Tate now contends the evidence was insufficient to s upport a conviction of voluntary manslaughter. “The principle is long standing in Virginia that an appellat e court will not ‘notice error which has been invited by the pa rty seeking to take advantage thereof on appeal.’” McBride v. Commonwealth , 44 Va. App. 526, 529-30, 605 S.E.2d 773, 774 (2004) (quoting Saunders v. Commonwealth , 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970)). In other words, even if we were to assume that the court’s ruling was technically erroneous, . . . [the appellant] is barred from invoking it on appeal. No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate—to invi te error . . . and then to take advantage of the situatio n created by his own wrong. Fisher v. Commonwealth , 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988). In this case, counsel for Tate moved to st rike the evidence as to the murder charge, suggesting that the evidence instead supported two alternative charges, vo luntary or involuntary manslaughter. And, during oral argument before th is Court, Tate’s counsel conceded that she proffered the jury instruc tion for voluntary manslaughter. 1 By offering the instruction for voluntary manslaughter, Tate’s couns el “invited the judge to give th e instructions to the jury, the act [s]he now asserts to be error.” McBride , 44 Va. App. at 530-31, 605 S.E.2d at 775. Clearly,

1 Specifically, when asked whether she objected to the jury instruction for the lesser-included offense of involuntary manslaugh ter, defense counsel responded, “Of course I did not. I . . . offered the instruction as a [trial ] strategy.” Defense counsel further asserted that she “felt like [she] had no choice but to offer all of the lesser[-included offe nses].” It is evident from this concession that defense counsel offere d the jury instruction for voluntary, as well as involuntary, manslaughter.- 3 - Tate, “having [asked for and] agreed upon the action taken by the trial court should not be allowed to assume an inconsiste nt position.” Clark v. Commonwealth , 220 Va. 201, 214, 257 S.E.2d 784, 792 (1979). Thus, we affirm his conviction for voluntary manslaughter

. Affirmed.