COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, 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 COURT OF FRANKLIN COUNTY 

William N. Alexander, II, Judge 

 Andrea C. Long (Boone, Beale, Cosby & Long, on brief), for 

appellant. 

 John H. McLees, Senior Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General; Alice T. Armstrong, Assistant 

Attorney General, on brief), for appellee. 

 Stanley Dion Tate (“Tate”) appeals his conviction, following a jury trial, for voluntary 

manslaughter. On appeal, Tate argues that the evidence was insufficient to sustain his 

conviction. More specifically, Tate contends that the killing was not the result of an intentional 

act, but was a justifiable killing for which he should 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 insufficient 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 Commonwealth’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 opinion is not designated for publication. Moreover, 

as this opinion has no precedential value, we recite only those facts necessary to our holding. 
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whatsoever of any malice . . . [therefore] [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 manslaughter. The trial 

court instructed the jury on second-degree murder, voluntary manslaughter, and involuntary 

manslaughter. The jury then convicted Tate of voluntary manslaughter. On appeal, Tate now 

contends the evidence was insufficient to support a conviction of voluntary manslaughter. 

 “The principle is long standing in Virginia that an appellate court will not ‘notice error 

which has been invited by the party 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 invite error . . . and then to take 

advantage of the situation 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 strike the evidence as to the murder charge, 

suggesting that the evidence instead supported two alternative charges, voluntary or involuntary 

manslaughter. And, during oral argument before this Court, Tate’s counsel conceded that she 

proffered the jury instruction for voluntary manslaughter.1

 By offering the instruction for 

voluntary manslaughter, Tate’s counsel “invited the judge to give the 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, 

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 Specifically, when asked whether she objected to the jury instruction for the 

lesser-included offense of involuntary manslaughter, 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 offenses].” It is evident 

from this concession that defense counsel offered the jury instruction for voluntary, as well as 

involuntary, manslaughter. 
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Tate, “having [asked for and] 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). Thus, we affirm his conviction for voluntary manslaughter.

Affirmed.