Harlen (Harlon) Dillon Blankenship v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Humphreys, McClanahan and Petty
Argued at Salem, Virginia
HARLEN (HARLON) DILLON BLANKENSHIP
MEMORANDUM OPINION* BY
v. 	Record No. 2250-05-3 	JUDGE ROBERT J. HUMPHREYS
JANUARY 9, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Michael L. Moore, Judge
Benjamin G. Sharp (Gerald F. Sharp, P.C., on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Robert F. McDonnell, Attorney General, on brief), for appellee.
Harlen Dillon Blankenship (“Blankenship”) appeals his convictions for distribution of a
controlled substance, and conspiracy to distribute a controlled substance, in violation of
Code §§ 18.2-22 and 18.2-248. He contends that the trial court erred in allowing the prosecutor
to make improper remarks to the jury during his closing argument. For the reasons that follow,
we hold that Blankenship failed to properly preserve the issue for appeal, and thus, we affirm the
convictions.
ANALYSIS
Blankenship’s sole contention on appeal is that he did not receive a fair and impartial trial
because of the remarks made by the Commonwealth’s Attorney during his closing argument.
Because Blankenship did not adequately preserve this issue for appeal, we refrain from
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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addressing it. The law regarding preservation of appellate issues arising from improper closing
argument is long established.
When allegedly improper comments are made during closing
argument in the guilt phase of a trial, the objecting party must
expressly seek the action that it desires the judge to take. It is well
settled that errors assigned because of a prosecutor’s alleged
improper comments or conduct during argument will not be
considered on appeal unless an accused timely moves for a
cautionary instruction or for a mistrial. A timely motion for a
mistrial or a cautionary instruction is required to preserve the issue
for appeal even if an objection was properly made to the conduct
or comments and improperly overruled by the trial judge. The
recognized purpose of this requirement is to prevent retrials by
calling error to the attention of the trial judge, who may then
caution the jury to disregard the inappropriate remarks.
Bennett v. Commonwealth, 29 Va. App. 261, 280-81, 511 S.E.2d 439, 448 (1999) (citations
omitted). See also Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990);
Morris v. Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992). This is a bright
line rule in Virginia, and we know of no exceptions.1 While Blankenship did raise an objection
1 Blankenship argues that his assignment of error is not procedurally defaulted.
Specifically, Blankenship contends that because the objection was overruled, he would not have
been entitled to a cautionary instruction or a mistrial. He relies on Martinez v. Commonwealth,
10 Va. App. 664, 668, 395 S.E.2d 467, 470 (1990), in which we held:
We disagree with the Commonwealth that where the trial judge has
overruled an objection to the Commonwealth attorney’s closing
argument defense counsel must request a cautionary instruction or
a mistrial in order to preserve the issue for appeal. [Appellant]
objected to the prosecutor’s argument with specificity and the
judge overruled the objection. Since the objection was overruled
on the basis that the argument was proper, Martinez was not
entitled to a cautionary instruction. The evidence upon which the
argument was based had not been admitted for a limited purpose,
and the trial judge ruled that the argument constituted permissible
comment on the evidence. Since the trial judge ruled that the
argument was proper, there was no reason to request a limiting or
cautionary instruction. A motion for a mistrial also would have
been a useless gesture because the objection had been overruled on
the basis that the argument was proper.

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to the prosecutor’s remarks, he neither requested a cautionary instruction, nor did he move the
court to declare a mistrial. As such, this issue is procedurally defaulted, and we will not address
the merits of Blankenship’s assignment of error. Accordingly, we affirm the convictions.
Affirmed.
We are unable to distinguish this case from numerous subsequent decisions, both from this Court
and the Supreme Court of Virginia, holding that a motion for a mistrial, or a request for a
cautionary instruction, are required even if the trial court overrules the objection.
The Commonwealth appealed the Martinez case to the Supreme Court of Virginia.
Although the Supreme Court did not address the issue of preservation in its opinion, it strongly
hinted that it would have reversed the decision of this Court if it had the opportunity. The
Supreme Court stated:
[We have] repeatedly held that errors assigned because of a
prosecutor’s improper comments or conduct during argument will
not be considered on appeal unless the accused timely moves for a
cautionary instruction or for a mistrial. These motions must be
made timely if the accused desires to take advantage of his
objection on appeal. See Cheng v. Commonwealth, 240 Va. 26,
38-39, 393 S.E.2d 599, 605-06 (1990), and cases cited therein.
Martinez failed to move for a mistrial or seek a cautionary
instruction. For some reason, the Court of Appeals, in holding that
this issue was not procedurally barred, overlooked the fact that we
have consistently adhered to this established procedure. However,
during oral argument before this Court, the Commonwealth
withdrew its assignment of cross-error on this issue, and, therefore,
we do not reach it here.
Martinez v. Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2 (1991). We
therefore conclude that Martinez has been implicitly overruled.