Present: Hassell, C.J., Koontz, Kinser, Goodwyn, and Millette,
JJ., and Carrico and Lacy, S.JJ.
DONNA L. BLANTON
OPINION BY
v. Record No. 091878 SENIOR JUSTICE HARRY L. CARRICO
September 16, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal involving convictions for murder in the
first degree (Code § 18.2-32) and use of a firearm in the
commission of a felony (Code § 18.2-53.1), we decide whether the
circuit court erred in failing to hold that the prosecutor made
improper statements during his rebuttal to the closing argument
of the defense. Finding that the circuit court did not err, we
will affirm the judgment of the Court of Appeals of Virginia.
The record shows that in the early morning hours of October
16, 2003, Taylor Blanton (Taylor), a Virginia State Trooper, was
shot and killed while still in bed in his home located on
approximately twelve acres of land at Ruther Glen in Caroline
County. His wife, Donna L. Blanton (Donna), was charged with
the murder and weapon offenses, and she was convicted of both by
a jury in the Circuit Court of Caroline County.
In an unpublished opinion, the Court of Appeals reversed
both convictions and remanded the case to the circuit court,
holding that the trial court erred in permitting the
Commonwealth to use all of its peremptory strikes against five
white females without supplying a gender-neutral reason.
Blanton v. Commonwealth, Record No. 1955-05-2, slip op. at 6
(April 17, 2007). Upon remand, the circuit court ordered a
change of venue to the Circuit Court of the City of Virginia
Beach.
In a jury trial held in Virginia Beach, Donna was convicted
of both offenses, and the jury fixed her punishment at life
imprisonment and a fine of $100,000 on the murder charge and
three years imprisonment on the weapons charge. The circuit
court imposed the sentences fixed by the jury and entered its
final order on September 3, 2008.
In a per curiam order, a judge of the Court of Appeals
refused Donna’s petition for appeal, and a three-judge panel of
the court by order upheld the refusal for the reasons stated in
the order. We awarded Donna this appeal.
BACKGROUND
Donna and Taylor began dating after she was divorced from
her former husband, Glen Udart, and in 1999 she moved into
Taylor’s home. Donna and Taylor were married about four years
later, on April 14, 2003.
According to the story Donna told at the time, she arose
before Taylor about 6:00 a.m. on the morning of October 16,
2003, and she was in the bathroom when she heard gunshots. She
exited the bathroom and called 911. She reported that an
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intruder had broken into her home and shot her husband. When
police arrived, Donna stated that she was in the bathroom
brushing her teeth ∗ when she heard gunshots and that she exited
the bathroom and saw the intruder running out of the house. She
said that the intruder dropped his gun on the bedroom floor and
that she picked it up and fired it at the intruder as he was
running down the driveway. She then placed the gun on the
center island in the kitchen.
Police retrieved the gun from the center island in the
kitchen when they arrived. They recovered six shell casings
from the bedroom, which was located on the first floor of the
house, two shell casings from the yard outside, and two bullets
from the bedroom. Four more bullets were found in Taylor’s body
during an autopsy. He died from “gunshot wounds of the back.”
Forensic analysis determined that all the bullets and shell
casings had been fired from the gun retrieved from the center
island in the kitchen. In addition, the gun perfectly fitted
into an imprint in a towel found in a linen closet outside the
bedroom door. The gun had actually been purchased by Taylor and
used at a state police firing range for several years prior to
his death.
∗
Later the same day, Taylor’s sister, Debbie Thomas,
arrived on the scene and Donna asked her for “a mint or a piece
of gum because she had not brushed her teeth all day.”
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Police investigation disclosed nothing indicating the entry
of an intruder into the residence on the morning in question.
The first officer to arrive saw no tracks other than his own in
the heavy dew on the ground. There were no signs of forced
entry. One window was open some three or four inches above the
sill but a cobweb was intact in the open space and there were no
signs inside or on the ground below the window of anything out
of order. No door or window in the house appeared to be damaged
and there was no dirt on any floor.
The Blanton family kept three dogs in their household that
“barked at anybody[,]” including “[f]amily members, . . .
[e]verybody” who “came to the door” or “walked on the driveway.”
On the morning in question, no one heard the dogs bark until the
police arrived on the scene in response to Donna’s 911 call.
The record discloses that Donna experienced serious
difficulty with her finances. She was employed for about three
years by a community action program in Caroline County but was
“fired” on July 9, 2002, for “gross insubordination.” She filed
a claim against the agency with the Equal Employment Opportunity
Commission, which determined on March 30, 2003 that the claim
was “not founded.”
Before Taylor and Donna were married, they engaged in
conversations at softball games with his ex-wife, Julie Henry,
with whom they were on friendly terms. The two women also
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talked frequently on the telephone, and Donna told Julie Henry
she was expecting a settlement for the loss of her prior
employment. In one conversation before Donna’s marriage, she
was crying and stated that Taylor “wanted her to spend [the
settlement money] fixing up [his] house . . . and since they
weren’t married . . . she didn’t think that she should have to
spend that money on the house.” In a conversation after Donna’s
marriage, she “seemed . . . aggravated” about not having a joint
checking account with Taylor and said “she was going to do
something about that.”
Donna told two other friends, Nancy Barnett and Susan
Jenkins, that she had filed a lawsuit against her former
employer, had won the case, and was expecting to receive her
money soon. Donna told Taylor’s nephew, John Thomas, that she
would be receiving “an undisclosed settlement . . . large in
nature” as a result of her discharge by her former employer and
that she and Taylor talked about using the money she expected
from the settlement to purchase “a beach house in Nags Head as
well as a new tractor for Taylor.” Yet there was never any
settlement, there was never any lawsuit, and Donna never got “a
penny out of” her former employer.
In August 2003, Taylor purchased a John Deere tractor from
a local equipment dealer. He paid a deposit of $200.00 and said
he would pay the balance later. The tractor was delivered to
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his home. On August 27, he gave the dealer a check for
$16,644.56 drawn on SunTrust Bank and signed by Donna. Taylor
asked that the check be held for a few days, when the funds
would be available to pay it. The dealer talked with Donna
several times in September of 2003 and she kept saying she would
soon be receiving funds to cover the check. She also said that
Taylor was “getting upset and blaming her” for the delay in
paying the money.
The dealer finally cashed the check, and it was returned on
September 14 for insufficient funds in the bank to cover it.
The dealer notified Taylor that the check had been returned and
Taylor delivered to the dealer a faxed copy of a letter
supposedly from SunTrust Bank, purportedly signed by one “R.
Montgomery,” and stating that the funds from a cancelled
cashier’s check dated October 6, 2003, would be deposited in
Donna’s account by October 10. The dealer never received
anything from the bank.
On October 14, 2003, Donna called the dealer and said she
was leaving the bank and was on the way to the dealer’s office
to pay in full for the tractor. The dealer never saw or heard
from Donna again and never received any money and therefore
repossessed the tractor with the full purchase balance still
unpaid. It turned out that SunTrust Bank had no one on its
staff named “R. Montgomery,” that the letterhead on which the
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faxed letter was written was not something used by SunTrust
Bank, and that the handwriting on the letter was Donna’s.
Donna was involved in gambling. Taylor’s daughter,
Katherine, who lived in the Blanton household, saw Donna on the
computer “[a]ll the time” with “casino gambling games” on the
screen. When Donna heard Katherine coming, she “minimize[d]”
the screen “so [one] can’t see” what is on it.
Donna traveled to Atlantic City, New Jersey, to gamble.
She told her friend Nancy Barnett, who accompanied her there “a
time or two,” that “she was real lucky” and would “win a lot.”
She told her friend Susan Jenkins, who was asked by Donna to
accompany her to Atlantic City but “never did get to go,” that
“she was a high roller and that she would call a man there at
the casino any time she wanted to go up; and he would have a
suite ready for her, a limousine, [and] tickets to any show she
wanted to go to.”
If Donna ever won “a lot” at gambling, it obviously was not
sufficient to keep her out of financial trouble. When she moved
into Taylor’s home, her two daughters from her previous
marriage, Chelsea and Danielle Udart, also moved. They used one
of the two bedrooms on the second floor and Taylor’s daughter,
Katherine, used the other. Taylor also had a son, but he lived
with his mother.
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On weekdays in the spring of 2003, when Chelsea and
Danielle arrived home from school, one of them would collect the
mail and then await a call from Donna. She had them go through
the mail and read off the return address on each piece and she
would instruct the girls where the mail should be placed. She
would have them hide “specific pieces” of mail, such as those
from credit card companies and banks, in her briefcase, which
she kept under the television table in her bedroom. After
Taylor’s murder, the police found batches of Donna’s financial
records in three other places, her purse, a briefcase in her
automobile, and under female clothing in a dresser drawer.
The hiding of mail abated during the summer months of 2003,
but when Chelsea arrived home one summer day she found a
“warrant in debt, judgment, and garnishment summons” for Donna
posted on the front door of the Blanton home. The hiding of
mail began again in the fall of 2003. Danielle estimated that
she placed 250 to 300 pieces of mail in Donna’s briefcase in
the fall of 2003.
Donna told Danielle “every day” not to “tell anybody” about
hiding the mail “because bad things would happen.” When
Danielle asked “what would happen,” Donna stated that Taylor
“would find out . . . there would be a divorce,” and “we would
be homeless and penniless.”
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Donna also placed “[q]uite a few” mail hold cards at the
post office in Ruther Glen. These cards permitted customers to
have mail held from three to thirty days. Donna visited the
post office on occasion to pick mail up and at other times to
place new holds. Taylor did not visit the post office.
During several months preceding Taylor’s murder, Donna
wrote a series of checks that were all returned by the bank for
insufficient funds. For the entire month of September 2003, she
had a negative balance in her checking account, and the bank
closed the account on October 3, 2003. In May of 2003, Donna
entered into a series of payday loans, which were payable on the
next payday and which she had “going until a loan was defaulted
[i]n late October” 2003.
There was little Donna could have done in October of 2003
to improve her financial situation. She had received a
discharge in bankruptcy in May of 1998 and would not have been
eligible to receive another discharge for six years, or until
May 2004.
On the evening of Taylor’s viewing after his death, Donna
telephoned Julie Henry, Taylor’s ex-wife, and asked about his
two children. Julie Henry stated that they “weren’t doing that
well.” Donna replied: “Well, they’ll be okay. They’ll get
Taylor’s Social Security, they’ll go to school for free and
they’ll get lots of money because he was killed in the line of
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duty.” When Julie Henry said she could not see how Taylor’s
death could be deemed to have been in the line of duty, Donna
responded: “What else could it be?” And on the day of Taylor’s
funeral, she told her daughters, Chelsea and Danielle, “[w]ell,
at least you’ll have your own rooms now.”
Finally, we note one of the conversations Taylor and Donna
had with Julie Henry at a softball game shortly before his
marriage to Donna. He stated that “if he died Donna would be a
rich woman.”
Donna did not testify at trial.
ANALYSIS
In his rebuttal to defense counsel’s closing argument, the
prosecutor made two statements that are the subjects of four
assignments of error made by Donna. Assignments 1 and 2 relate
to the first statement and 3 and 4 to the second statement.
The First Statement
The prosecutor said this to the jury:
The defense did put in some evidence. They put in the
three lab reports, and they had all of this here. You
better believe that if there were one shred of evidence in
all of this that proved that the defendant was not guilty
that [defense counsel] would have presented it to you, and
he didn’t.
Donna objected to the argument, and the circuit court
overruled the objection. Donna now argues that the prosecutor’s
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statement “was an improper comment on the Defendant’s failure to
present evidence, including [her] failure to testify.”
However, we do not reach the merits of Donna’s argument in
support of her first two assignments of error. “Unless a
defendant has made a timely motion for a cautionary instruction
or for a mistrial, we will not consider [her] assignments of
error alleging that improper remarks were made by the
prosecutor.” Schmitt v. Commonwealth, 262 Va. 127, 148, 547
S.E.2d. 186, 200 (2001); see also Sheppard v. Commonwealth, 250
Va. 379, 394-95, 464 S.E.2d 131, 140-41 (1995); Breard v.
Commonwealth, 248 Va. 68, 82, 445 S.E.2d 670, 679 (1994); Cheng
v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990).
Donna did not make a motion in the circuit court for a
cautionary instruction or for a mistrial. Hence, she has waived
any claim of error she may have had with respect to the First
Statement. Rule 5:25; see, e.g., Schmitt, 262 Va. at 148, 547
S.E.2d at 200-01 (2010).
The Second Statement
In his closing argument, defense counsel stated that after
Taylor’s funeral, Donna returned to the house she and Taylor had
lived in but she was arrested within seven days and did not
receive the house nor did she get “one penny” as a result of
Taylor’s death. In rebuttal, the prosecutor made this
statement: “She was in jail ten days after [Taylor’s death]
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happened. That’s why she didn’t get one penny. That’s why she
didn’t get the house.”
Defense counsel objected to the prosecutor’s reference to
Donna’s presence in jail and moved for a mistrial or a curative
instruction. Defense counsel likened the comment about Donna
being in jail to allowing an accused to appear before a jury
while in shackles or prison garb and, hence, was “overly
prejudicial.”
The trial judge remarked that defense counsel had “sort of
opened that door” by his statement that Donna had been arrested
seven days after Taylor’s murder. The prosecutor stated that he
had not said that Donna had “been in jail continuously since
that time,” only that she was in jail ten days after the murder.
The prosecutor also said he may have misstated the number of
days as ten rather than seven between the murder and the arrest.
The circuit court denied the defense motion for a mistrial.
However, the trial judge reminded the jurors that he had
previously instructed them that “what the attorneys say is not
evidence,” that it “is only their recollection of the evidence,”
that “[y]ou are the triers of fact,” and “[y]ou heard the
evidence based upon your collective memories as to what, in
fact, is the evidence.”
Resuming his rebuttal argument, the prosecutor stated to
the jury: “Let me correct myself. Of course, she didn’t get
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the house. Of course, she didn’t get any money. She was
arrested for the murder of Taylor Blanton seven days after he
was murdered.”
We hold that the circuit court did not err in denying
defense counsel’s motion for a mistrial. The denial is
supported by established principles of law, as follows:
The decision whether to grant a motion for mistrial lies
within a trial court’s exercise of discretion. When a
motion for mistrial is made, based upon an allegedly
prejudicial event, the trial court must make an initial
factual determination, in the light of all the
circumstances of the case, whether the defendant’s rights
are so indelibly prejudiced as to necessitate a new trial.
Unless we can say that the trial court’s determination was
wrong as a matter of law, we will not disturb its judgment
on appeal.
Green v. Commonwealth, 266 Va. 81, 102, 580 S.E.2d 834, 846
(2003) (citations and internal quotation marks omitted).
We cannot say that the circuit court’s determination was
wrong as a matter of law. Considering the innocuous nature of
the prosecutor’s comment under all the circumstances of the
case, the circuit court’s cautionary instruction to the jury,
and the prosecutor’s corrective statement, Donna’s rights were
clearly not so indelibly prejudiced as to necessitate a new
trial. Accordingly, we will not disturb the circuit court’s
judgment.
CONCLUSION
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For the reasons assigned, we will affirm the judgment of
the Court of Appeals.
Affirmed.
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