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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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 
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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