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.