David Eugene Petruska v Commonwealth

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.

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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

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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

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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.