PRESENT: All the Justices
ROBERT STACY YARBROUGH
v. Record No. 021660 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 3, 2005
WARDEN OF THE SUSSEX I STATE PRISON
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
This petition for a writ of habeas corpus was filed under
our original jurisdiction. We consider whether the petitioner
was denied his Sixth Amendment right to the effective assistance
of counsel in a second penalty phase proceeding conducted after
we remanded his capital murder case.
I. PROCEEDINGS
The petitioner, Robert Stacy Yarbrough, was convicted in a
jury trial in the Circuit Court of Mecklenburg County (the
circuit court) of the capital murder of Cyril Hugh Hamby during
the commission of robbery, in violation of Code § 18.2-31(4),
and of the robbery of Hamby, in violation of Code § 18.2-58.
The jury found Yarbrough guilty of both crimes, and fixed his
punishment at death for the capital murder and at life
imprisonment for the robbery. The circuit court sentenced
Yarbrough in accordance with the jury verdict.
We affirmed Yarbrough’s robbery conviction and sentence,
and his conviction of capital murder, but vacated the death
sentence and remanded the case for a new penalty phase
proceeding because the circuit court had refused Yarbrough’s
request to instruct the jury that he would be ineligible for
parole if he received a sentence of life imprisonment.
Yarbrough v. Commonwealth, 258 Va. 347, 374-75, 519 S.E.2d 602,
616-17 (1999)(Yarbrough I). On remand, a jury again fixed
Yarbrough’s punishment for capital murder at death, and the
circuit court sentenced Yarbrough in accordance with the jury
verdict. We affirmed the circuit court’s judgment. Yarbrough
v. Commonwealth, 262 Va. 388, 551 S.E.2d 306 (2001)(Yarbrough
II), cert. denied, 535 U.S. 1060 (2002).
Yarbrough filed a petition for a writ of habeas corpus
under Code § 8.01-654 against the warden of the Sussex I State
Prison (the warden). Based on the death sentence he received on
remand, Yarbrough alleged that (1) the jury was selected in a
racially discriminatory manner; (2) the jury was misled about
the appropriate burden of proof; (3) his trial counsel rendered
ineffective assistance; and (4) Virginia’s capital murder
statute is unconstitutional. We refused Yarbrough’s petition.
Yarbrough filed a petition for rehearing pursuant to Rule
5:39, which we granted limited to consideration of the claim
that Yarbrough was denied the effective assistance of counsel at
his second penalty phase proceeding. We entered an order
directing the circuit court to conduct an evidentiary hearing
pursuant to Code § 8.01-654(C) to consider the merits of
2
Yarbrough’s allegation that he was denied the effective
assistance of counsel at his penalty phase proceeding on remand
because counsel unreasonably failed to investigate and present
relevant mitigating evidence as required by the United States
Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510
(2003). The circuit court conducted an evidentiary hearing (the
habeas hearing) and submitted a written report that contained
findings of fact and conclusions of law as directed by Code
§ 8.01-654(C)(3). 1
II. FACTS
In Yarbrough I, we provided a complete statement of facts
concerning the crimes for which Yarbrough was convicted and
sentenced. 258 Va. at 353-55, 519 S.E.2d at 603-05. In
Yarbrough II, we described the evidence presented at the second
penalty phase proceeding, which is relevant to the present
habeas corpus proceeding. 262 Va. at 391-92, 551 S.E.2d at 307-
08. We will recite the facts from that opinion:
During the second penalty phase proceeding, the
Commonwealth presented essentially the same evidence
it had presented during the first penalty phase
proceeding, including evidence that the defendant
killed Hamby by stabbing him multiple times in the
neck. The Commonwealth’s evidence also included
testimony from Hamby’s family and friends concerning
1
The Honorable Charles L. McCormick, III (retired)
conducted the evidentiary hearing and submitted the required
report to this Court. Judge McCormick also presided over
Yarbrough’s original guilt and penalty phase proceedings, as
well as the second penalty phase proceeding on remand.
3
the impact of Hamby’s murder on them. Hamby’s two
daughters, his daughter-in-law, and one of his
granddaughters testified that their relationships with
Hamby were close and were nurtured by his kindness and
thoughtfulness, and that Hamby’s death has devastated
their family. Two former neighbors and long-time
customers of Hamby testified that Hamby had developed
close friendships with them that demonstrated his
warmth and generosity.
The Commonwealth also presented testimony from
Dr. Marcella F. Fierro, the Chief Medical Examiner for
the Commonwealth. Dr. Fierro testified that Hamby
bled to death as a result of at least ten separate
knife wounds to his neck. She testified that the
wounds penetrated to the junction between the neck and
skull at several locations on the rear of Hamby’s
neck, and that such wounds “are usually associated
with trying to take the head off.” In addition, Dr.
Fierro identified injuries from at least five separate
blows to Hamby’s head that were consistent with
beating and kicking. She testified that Hamby was
alive when all these wounds were inflicted, and that
it took as long as 15 minutes for him to bleed to
death. The Commonwealth presented additional
testimony from Dominic Rainey, a witness to the
killing, who testified that Hamby was begging the
defendant to stop attacking him while the defendant
was cutting the front and rear of Hamby’s neck in a
“sawing motion.”
Yarbrough presented testimony from his mother who
stated that Yarbrough had lived with her his entire
life except for two years as a teenager during which
he lived with his grandmother. Yarbrough also
presented testimony from his former prison counselor
who testified that Yarbrough had not received any
adverse disciplinary reports during his time in
prison.
Id.
At the habeas hearing, Yarbrough’s trial counsel, Buddy
Ward, testified that he and his investigator, William Smith,
conducted a “deep background check” that began with Yarbrough’s
4
birth. They collected Yarbrough’s school records and
investigated a medical incident from Yarbrough’s childhood.
Ward and Smith interviewed Yarbrough at length, and
contacted Yarbrough’s family members and other potential
character witnesses. According to Ward, Yarbrough did not say
anything negative about his mother, and did not indicate that he
had been neglected during his childhood years.
The only two family members with whom Ward spoke were
Yarbrough’s mother and grandmother. Yarbrough’s mother stated
that at one point, she sent her son to live with his grandmother
in order to “work through” her own problems with drugs.
Yarbrough’s grandmother, however, did not offer any information
suggesting that Yarbrough had experienced a troubled childhood.
Ward did not interview Yarbrough’s father or sister because
Yarbrough stated that he had not had contact with them in many
years.
Ward also stated that he discussed Yarbrough's case with
Dr. Evan Nelson, a psychologist appointed by the circuit court
who interviewed Yarbrough and his family members. Dr. Nelson
informed Ward that Yarbrough’s mother had a drug problem when
Yarbrough was a child and once placed Yarbrough in the care of
his grandmother for this reason.
After receiving Dr. Nelson’s evaluation, Ward attempted to
“follow up” with Yarbrough’s mother and grandmother, but
5
received no new information and did not “push” for more
information about Yarbrough’s childhood or about his mother’s
drug use. Ward also stated that he did not use Dr. Nelson as a
witness at the second penalty phase proceeding because Dr.
Nelson had concluded that his testimony could prove harmful to
Yarbrough’s case.
Yarbrough’s mother, Lorraine R. Mitchell, testified
extensively about Yarbrough’s childhood years and about her
struggle with drug abuse. She stated that Yarbrough spent his
early childhood years with her in a low-income housing project
in Camden, New Jersey. Her boyfriend, Willis Jenkins, and their
daughter, Dorian, also lived there for a number of years.
Mitchell stated that when Jenkins brought crack cocaine
into the home, she started using the drug and became addicted to
it. Jenkins eventually moved out of the home because of her
addiction. After Jenkins left, Mitchell did not pay her bills
regularly, and her utility services often were disconnected.
She eventually lost her home after failing to make the mortgage
payments.
Mitchell testified that the rest of Yarbrough’s childhood
was spent in several different locations. She and the two
children lived for a period of time at her mother’s house and,
when Yarbrough was 11 years old, he spent a year in Illinois
6
with his half brother. While Yarbrough was in Illinois, Jenkins
removed Dorian permanently from Mitchell’s care.
Mitchell stated that after Yarbrough returned from
Illinois, they lived in a shelter and in an apartment she
described as a “slum.” She and Yarbrough later moved to
Virginia’s Eastern Shore. They eventually began living with a
man named Willie Jiggets, who sold crack cocaine and whose home
was a place where neighbors would “hang out,” play cards, and
drink liquor.
Mitchell testified that despite her drug use and living
conditions, she tried not to use illegal drugs in front of her
children, and that Yarbrough was never physically or sexually
abused. Mitchell also testified that her children always had
food, clothing, and a place to live. Mitchell stated that she
answered all the questions Ward and Smith asked, and that she
thought she had discussed her drug use with Ward.
Yarbrough’s grandmother, Annie Mae Riley, testified that
neither Ward nor Smith requested details about Yarbrough’s
personal history. However, Riley stated that she was present
when Smith asked Mitchell some questions about her use of crack
cocaine.
Riley also testified that Yarbrough lived with her while he
was attending kindergarten and first grade. When Yarbrough and
7
Mitchell moved to their own house in Camden, Riley visited them
regularly.
During this time, Riley observed a change in Mitchell’s
behavior and a deterioration of conditions in the home.
However, Riley stated that the children always had food to eat.
Riley also testified that Yarbrough often cared for Dorian when
Mitchell failed to do so.
When Mitchell confessed her drug addiction to Riley, Riley
helped Mitchell obtain assistance to deal with the problem and
later helped her move to Virginia. Riley further stated that
Yarbrough was not abused or neglected as a child.
Yarbrough also presented the testimony of Willis Jenkins,
who confirmed many of the details of Mitchell’s testimony and
testified that neither Ward nor Smith contacted him about
Yarbrough. Jenkins also stated that he introduced Mitchell to
the use of crack cocaine, and that she began using it on a daily
basis. He testified that even after he stopped using the drug,
Mitchell continued taking it and frequently had a “house full of
people getting high” in the basement while the children were
upstairs. Jenkins also stated that during this period Mitchell
took money from his bank account to buy drugs and often did not
pay their utility bills, which resulted in disruptions in
service.
8
Jenkins testified that he never witnessed any abuse of the
children, and that he and Mitchell tried to shield the children
from their drug use. He eventually moved out of the house and
removed Dorian from Mitchell’s care one or two years later.
Jenkins also stated that during the period when Mitchell
was addicted to drugs, the children were able to walk to their
grandmother’s house, about 10 minutes away, where she would
provide them with food. He also noted that Yarbrough often took
care of Dorian’s needs when Mitchell failed to do so.
Yarbrough’s father likewise confirmed aspects of his son’s
early childhood years. He testified that although he remained
in frequent contact with his son over the years, no lawyer or
investigator ever contacted him on his son’s behalf.
Yarbrough’s father also testified that after Mitchell and
his son moved out of his house and began living with Jenkins, he
eventually learned of Mitchell’s drug addiction and took his son
to live with a half brother in Illinois. Yarbrough’s father
testified that when his son returned one year later and resumed
living with Mitchell, she appeared to have overcome her
addiction.
Finally, Yarbrough presented the testimony of his sister,
Dorian Jenkins, and his cousin, Anthony Riley. Both testified
that Yarbrough’s trial counsel did not contact them. Riley
stated that although he was very young at the time, he
9
remembered “rampant” drug activity in Yarbrough’s childhood
home, as well as very poor living conditions. Dorian Jenkins,
who lived with Yarbrough and Mitchell until she was five years
old, described very dirty living conditions, with the frequent
absence of electricity and water. She also stated that
Yarbrough often helped feed her and did “anything [else] I
needed for him to do.”
The warden presented testimony from the investigator,
William Smith, who testified that Yarbrough did not provide any
information about his childhood living conditions. Smith stated
that Yarbrough did not indicate that there were problems in his
home life during his childhood, nor did he suggest any
circumstances that would have required additional investigation.
Smith also testified that Mitchell never mentioned her drug
addiction, nor did she indicate any unusual problems that
occurred during Yarbrough’s childhood years. Smith acknowledged
that he did not request any records from social service
agencies, explaining that he did not think that he could obtain
access to them.
The warden also presented testimony from Ward, who stated
that Mitchell portrayed herself to him as a “good mother with a
problem that she was working her way through.” According to
Ward, Mitchell did not discuss any details of her drug use or
10
provide information about any other difficulties Yarbrough
encountered during his childhood years.
Ward testified that he would have liked to have had Dorian
Jenkins’ testimony at the penalty phase proceeding of the trial.
He did not consider contacting her, however, because Yarbrough
had not seen her in many years.
Ward further testified that while it would have been
possible to present a mitigation case based solely on
Yarbrough’s difficult childhood, he would have preferred to
include the testimony of an expert regarding the impact of such
a childhood on Yarbrough. Ward conceded, however, that he did
not ask the circuit court to appoint a new expert to replace Dr.
Nelson.
In its report, the circuit court found that Ward was unable
to obtain substantial information from the witnesses he
interviewed, and that he did not attempt to obtain any
additional information from other witnesses. The court
concluded that Ward received little assistance from Yarbrough,
his mother, and his grandmother.
The court found that Mitchell and Jenkins both used alcohol
and drugs during Yarbrough’s childhood, but that they attempted
to conceal their drug use from their children. The court also
found that although there was neglect and privation in
Yarbrough’s childhood history, these circumstances did not
11
result from the mother’s willful misconduct toward her children
but from her inability to care for them during the unspecified
period that she was addicted to crack cocaine.
The court noted that on Yarbrough’s return from his one-
year stay in Illinois, Mitchell’s condition had improved. The
court also found that although Mitchell occasionally “slipped
and slid,” she “managed to straighten out her life and avoid her
prior difficulties with crack cocaine use.” The court further
concluded that there was no credible evidence that Yarbrough had
been the victim of physical or sexual abuse.
In addition, the circuit court found that the testimony of
both Anthony Riley and Dorian Jenkins was incredible. The court
concluded that because Dorian’s testimony described living
conditions when she was at most five years old and these events
occurred about 15 years before she testified, her testimony was
“questionable as it was likely influenced by what others had
told her rather than her personal recollection.” The court
further found that Anthony Riley’s testimony “came across as
overreaching and exaggerated – almost rehearsed.”
In its proposed conclusions of law, the circuit court
recommended that Yarbrough’s habeas corpus petition be dismissed
because Yarbrough failed to demonstrate that he was prejudiced
by his counsel’s performance. The court first concluded that
Yarbrough’s counsel rendered ineffective assistance because he
12
failed to investigate aggressively Yarbrough’s personal history
and, thus, could not make a reasonable strategic decision
regarding whether to present mitigation evidence based on a
claim that Yarbrough suffered neglect as a child. The court
further concluded, however, that the mitigation evidence
received at the habeas hearing was insufficient to demonstrate a
reasonable probability that the outcome of the second penalty
phase proceeding would have been different had that evidence
been considered by the jury.
III. DISCUSSION
Yarbrough argues that his trial counsel rendered
ineffective assistance at the second penalty phase proceeding.
He asserts that Ward should have conducted a more thorough
background investigation in order to obtain and present
mitigation evidence during the penalty phase. Yarbrough
contends that Ward failed to contact witnesses who would have
been able to provide information that Yarbrough was severely
neglected as a child, and also failed to pose detailed questions
about his upbringing to those witnesses who were interviewed.
Yarbrough also asserts that the circuit court applied the
wrong standard of proof at the habeas hearing in reaching its
conclusion that Yarbrough did not suffer prejudice as a result
of his counsel’s performance. He maintains that the court
erroneously indicated that he was required to prove that the
13
available mitigation evidence outweighed the evidence in
aggravation of the offense. In the alternative, Yarbrough
contends that he met his actual burden of proof, namely, that
there was a reasonable probability that if the available
mitigation evidence had been presented to the jury during the
second penalty phase proceeding, the jury would have reached a
different result.
In response, the warden argues that Ward provided effective
assistance of counsel during the second penalty phase
proceeding. The warden notes that Ward investigated Yarbrough’s
personal history and reasonably determined that he would not
benefit from further investigation. The warden also contends
that it was reasonable for Ward to have relied on Yarbrough’s
indication that he experienced no particular problems during his
childhood, and that there would be no benefit to be derived from
contacting his extended family.
The warden also argues that the circuit court correctly
held that Yarbrough was not prejudiced by his counsel’s alleged
failure to investigate and present evidence of Yarbrough’s
personal history. The warden observes that at the habeas
hearing, Yarbrough did not present evidence of sexual or
physical abuse, extreme neglect, or other substantial mitigating
evidence. Thus, the warden contends that Yarbrough failed to
meet his burden of proving that but for his counsel’s alleged
14
ineffective assistance, the jury would have fixed his punishment
at life imprisonment.
In reviewing the circuit court’s findings of fact and
conclusions of law submitted pursuant to Code § 8.01-654(C), we
defer to the court’s factual findings and are bound by them
unless they are plainly wrong or without evidentiary support.
Lovitt v. Warden, 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003),
cert. denied, ___ U.S. ___, 124 S.Ct. 2018 (2004); Hedrick v.
Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002). However,
we review de novo the circuit court’s recommended conclusions of
law, because they involve mixed questions of law and fact.
Lovitt, 266 Va. at 229, 585 S.E.2d at 808; Hedrick, 264 Va. at
496, 570 S.E.2d at 847; see Strickland v. Washington, 466 U.S.
668, 698 (1984).
We consider the circuit court’s submissions in the context
of Yarbrough’s Sixth Amendment right to counsel, which includes
the right to the effective assistance of counsel. Strickland,
466 U.S. at 685-86; see Roe v. Flores-Ortega, 528 U.S. 470, 476
(2000); United States v. Cronic, 466 U.S. 648, 654 (1984);
Lovitt, 266 Va. at 248, 585 S.E.2d at 820; Sheikh v. Buckingham
Corr. Ctr., 264 Va. 558, 564, 570 S.E.2d 785, 788 (2002). This
guarantee entitles a criminal defendant to counsel who is
reasonably competent and who provides advice that is within the
range of competence required of attorneys in criminal cases.
15
Strickland, 466 U.S. at 687; see Wiggins v. Smith, 539 U.S. 510,
521 (2003); Kimmelman v. Morrison, 477 U.S. 365, 384 (1986);
Lovitt, 266 Va. at 249, 585 S.E.2d at 820; Green v. Young, 264
Va. 604, 609, 571 S.E.2d 135, 138 (2002).
To prevail on a claim of ineffective assistance of counsel,
a petitioner must ordinarily satisfy both parts of the two-part
test established in Strickland. Strickland, 466 U.S. at 687;
Lovitt, 266 Va. at 249, 585 S.E.2d at 820; see Wiggins, 539 U.S.
at 521; Williams v. Taylor, 529 U.S. 362, 390 (2000). The
petitioner must first show that “counsel’s representation fell
below an objective standard of reasonableness.” Strickland, 466
U.S. at 687-88; see also Wiggins, 539 U.S. at 521; Bell v. Cone,
535 U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91; Lovitt,
266 Va. at 249, 585 S.E.2d at 820. In deciding this question,
the court considering the habeas corpus petition “must indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466
U.S. at 689; see also Kimmelman, 477 U.S. at 381; Lovitt, 266
Va. at 249, 585 S.E.2d at 820.
To prove that counsel’s conduct fell outside the range of
reasonable professional assistance, a petitioner must overcome
the presumption that under the particular circumstances of the
case, the challenged actions may be considered sound trial
strategy. Strickland, 466 U.S. at 689; Lovitt, 266 Va. at 249,
16
585 S.E.2d at 820; see Bell, 535 U.S. at 698; Darden v.
Wainwright, 477 U.S. 168, 186 (1986). However, “strategic
choices made after less than complete investigation are
reasonable” only “to the extent that reasonable professional
judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690-91; see also Wiggins, 539 U.S. at
521; Burger v. Kemp, 483 U.S. 776, 794 (1987); Lovitt, 266 Va.
at 249, 585 S.E.2d at 821.
Addressing the investigation and presentation of mitigation
evidence, the Supreme Court observed in Wiggins that “Strickland
does not require counsel to investigate every conceivable line
of mitigating evidence no matter how unlikely the effort would
be to assist the defendant at sentencing. Nor does Strickland
require defense counsel to present mitigating evidence at
sentencing in every case.” Wiggins, 539 U.S. at 533.
Instead, in determining whether trial counsel exercised
reasonable professional judgment regarding the investigation and
presentation of mitigation evidence, a reviewing court must
focus on whether the investigation resulting in counsel’s
decision not to introduce certain mitigation evidence was itself
reasonable. Id. at 523; Strickland, 466 U.S. at 690-91; Lovitt,
266 Va. at 250, 585 S.E.2d at 821. In making this
determination, “a court must consider not only the quantum of
evidence already known to counsel, but also whether the known
17
evidence would lead a reasonable attorney to investigate
further.” Wiggins, 539 U.S. at 527; see also Lovitt, 266 Va.
250, 585 S.E.2d at 821.
If the reviewing court concludes that counsel’s performance
was deficient under the first part of the Strickland test, a
petitioner seeking relief must also establish that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694; see also Wiggins, 539 U.S. at 534; Williams, 529 U.S. at
391; Lovitt, 266 Va. at 250, 585 S.E.2d at 821; Hedrick, 264 Va.
at 496-97, 570 S.E.2d at 847.
A reviewing court, however, is not required to decide
whether “counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the
alleged deficiencies.” Strickland, 466 U.S. at 697. As the
Supreme Court has stated, “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should
be followed.” Id.; see also Lovitt, 266 Va. at 250, 585 S.E.2d
at 821; Strickler v. Murray, 249 Va. 120, 128, 452 S.E.2d 648,
652, cert. denied, 516 U.S. 850 (1995).
18
When a prejudice determination involves the failure to
pursue the presentation of mitigation evidence, the reviewing
court is required to evaluate the totality of the available
mitigation evidence, both that adduced at trial and that
presented at the habeas hearing, along with the evidence in
aggravation of the offense received at trial. Wiggins, 539 U.S.
at 536; Williams, 529 U.S. at 397-98; Lovitt, 266 Va. 250, 585
S.E.2d at 821.
In the present case, Yarbrough’s contentions address trial
counsel’s alleged failure to investigate his family background,
which he asserts contained evidence of neglect and drug abuse by
his mother, impoverished living conditions, and general abuse
resulting from his mother’s drug-related activities. As
recommended by the Supreme Court in Strickland, we move directly
to consider the second prong of the two-part test, namely, the
issue whether Yarbrough suffered prejudice sufficient to
undermine confidence in the outcome of the second penalty phase
proceeding as a result of his counsel’s failure to investigate
and present available mitigation evidence. 2 See Strickland, 466
2
Because we address the issue of prejudice directly, we
need not consider and we express no opinion on the circuit
court's finding that Yarbrough received ineffective assistance
of counsel in the second penalty phase proceeding. Such
finding, having not been adopted by this Court, has no effect in
these proceedings.
19
U.S. at 694; see also Williams, 529 U.S. at 391; Lovitt, 266 Va.
at 252, 585 S.E.2d at 822.
Initially, we find no merit in Yarbrough’s argument that
the circuit court applied the wrong standard of proof in making
its prejudice determination by requiring Yarbrough to show that
the mitigating evidence outweighed the evidence in aggravation
of the offense. Contrary to Yarbrough’s contention, the circuit
court based its prejudice determination on the Strickland
standard whether there was a reasonable probability of a
different result at the second penalty phase proceeding if the
totality of the available mitigation evidence had been presented
to the jury.
In reaching its conclusion that Yarbrough had not satisfied
the Strickland standard, the circuit court observed that the
evidence in aggravation “more than outweighs” the available
mitigating evidence. This statement did not impose a separate
evidentiary standard in violation of Strickland but merely
served to explain the court’s view that the evidence in
mitigation did not even closely approach the evidence in
aggravation presented at Yarbrough’s trial.
Moreover, as we have already observed, we are required to
make our own prejudice determination without any deference to
the circuit court’s recommended conclusion of law, because this
issue is subject to our de novo review. Lovitt, 266 Va. at 229,
20
585 S.E.2d at 808; Hedrick, 264 Va. at 496, 570 S.E.2d at 847;
see Strickland, 466 U.S. at 698. Thus, we proceed to consider
this mixed question of law and fact under the established
principles stated above.
In making our prejudice determination, we rely on the
Wiggins decision in which the Supreme Court, applying
Strickland, invalidated a habeas petitioner’s death sentence
based on the prejudicial effect of trial counsel’s failure to
investigate and present certain mitigation evidence to the jury
at the petitioner’s sentencing proceeding. Wiggins, 539 U.S. at
537-38. There, the petitioner was convicted of capital murder
in a bifurcated trial. Id. at 515-16. Trial counsel decided
not to present any mitigation evidence during the penalty phase,
and instead sought to prove that the evidence was insufficient
to prove that the defendant was the actual perpetrator of the
murder rather than a lesser participant in the crime. Id.
Under Maryland law, this determination is made at the penalty
phase of a capital murder trial, and a jury may sentence a
defendant to death only if it determines that the defendant was
the actual perpetrator of the crime. See Md. Code Ann., Crim.
Law § 2-202 (2002).
Before adopting this approach, trial counsel had the
defendant evaluated by a psychologist, who concluded that the
defendant “had an IQ of 79, had difficulty coping with demanding
21
situations, and exhibited features of a personality disorder.”
Wiggins, 539 U.S. at 523. However, the psychologist’s report
did not discuss the defendant’s extensive personal history. Id.
Trial counsel also reviewed court and social services records,
which referred to the defendant’s “misery as a youth” and to the
fact that he had spent most of his childhood years in foster
care. Id.
At the habeas hearing in Wiggins, the petitioner presented
a report from a psychologist, who stated that the petitioner had
“experienced severe privation and abuse in the first six years
of his life while in the custody of his alcoholic, absentee
mother.” Id. at 534-35. The psychologist also stated that the
petitioner “suffered physical torment, sexual molestation, and
repeated rape during his subsequent years in foster care.” Id.
at 535. Additionally, the evidence showed that the petitioner
was homeless for a period of time and had “diminished mental
capacities.” Id.
The Supreme Court held that trial counsel’s decision to
limit their investigation of mitigation evidence was
unreasonable, because the information counsel had seen in the
social services records would have led a reasonably competent
attorney to conduct a further investigation. Id. at 534. The
Court determined that the petitioner suffered prejudice as a
result of counsel’s unprofessional errors of judgment because
22
the mitigating evidence that counsel failed to discover and
present was “powerful.” Id.
Mindful of this analysis, we consider the evidence
presented at Yarbrough’s habeas hearing and the circuit court’s
recommended findings of fact. The evidence of Yarbrough’s
personal history consisted of testimony from family members and
friends. As stated above, the circuit court found the testimony
of both Dorian Jenkins and Anthony Riley incredible. Having
rejected the testimony of these two witnesses, the circuit court
made its findings of fact based on the remaining evidence
received at the habeas hearing.
We conclude that the testimony of Yarbrough’s mother and
grandmother supports the circuit court’s finding that although
Yarbrough faced periods of privation and neglect during his
childhood due to his mother’s drug addiction, at other times she
provided adequately for him under difficult circumstances.
Their testimony also supports the court’s finding that
Yarbrough’s mother did not regularly use drugs after she
admitted her problem to her mother and took action to correct
it.
We also conclude that in addition to the testimony of
Yarbrough’s mother and grandmother, evidence from Willis Jenkins
and Yarbrough’s father supports the circuit court’s conclusion
that Yarbrough was not physically or sexually abused as a child.
23
Further, the testimony of Willis Jenkins and Yarbrough’s
grandmother supports the court’s finding that Yarbrough often
cared for himself and his sister as a result of his mother’s
drug addiction. Thus, we conclude that there is evidence in the
record to support these recommended findings of fact, and we
apply them in undertaking our prejudice analysis. See Lovitt,
266 Va. at 229, 585 S.E.2d at 808; Hedrick, 264 Va. at 496, 570
S.E.2d at 847.
In determining prejudice, we “reweigh the evidence in
aggravation against the totality of available mitigating
evidence.” Wiggins, 539 U.S. at 534; see also Williams, 529
U.S. at 397-98; Lovitt, 266 Va. at 256, 585 S.E.2d at 824-25.
The evidence in aggravation at Yarbrough’s second penalty phase
proceeding included the brutal nature of the attack on Hamby, a
77-year old man, which appeared to be an attempted decapitation.
Also in aggravation was the fact that Hamby was alive when all
ten of the knife wounds were inflicted on him, and that he may
have lived for 15 minutes as he bled to death. The evidence
also showed that Yarbrough continued to cut Hamby’s neck in a
sawing motion even after Hamby pleaded with Yarbrough to stop
cutting him.
The mitigation evidence concerning Yarbrough’s childhood
home life showed that his mother was addicted to crack cocaine
for an unspecified period of time, and that the family lost its
24
home and later faced substandard living conditions at different
locations. During the time of her drug addiction, Yarbrough’s
mother sometimes neglected her children. Yarbrough frequently
helped to take care of his sister to compensate for his mother’s
failure to do so.
Because of his mother’s drug addiction, Yarbrough was
required to live with relatives on two occasions, and his
sister was removed permanently from the mother’s home. The
mitigation evidence also showed that Yarbrough had no prior
record.
In contrast to the penalty phase evidence in Wiggins, the
record from Yarbrough’s second penalty phase proceeding shows
that counsel presented some recent personal background
information for the jury’s consideration. That testimony,
provided by Yarbrough’s former prison counselor, showed that
Yarbrough had adjusted to prison life in that he had not
received any adverse disciplinary reports during the time he had
been incarcerated.
We further observe that there was no mitigation evidence
presented at the habeas hearing showing that Yarbrough has a
diminished mental capacity. This aspect of his case constitutes
a major distinction from the evidence presented in Wiggins,
which showed that the petitioner exhibited “borderline
retardation.” Wiggins, 539 U.S. at 518. Also missing from the
25
present case is the evidence of extreme physical abuse that
permeated the record in Wiggins.
These critical differences likewise distinguish Yarbrough’s
case from Williams. There, the Supreme Court concluded that a
defendant had suffered prejudice resulting from his counsel’s
failure to present substantial mitigation evidence at the
penalty phase of his capital murder trial. Williams, 529 U.S.
at 396-98. The evidence presented at the habeas hearing in that
case showed that the petitioner was “borderline mentally
retarded” and had suffered extreme abuse and neglect as a child.
Id. at 370. That evidence included documents that “dramatically
described mistreatment, abuse, and neglect during his early
childhood, as well as testimony that he . . . had suffered
repeated head injuries, and might have mental impairments
organic in origin.” Id.
With these distinctions in mind, and reviewing the evidence
in mitigation and aggravation of the offense in accordance with
the holding of Wiggins, we conclude that Yarbrough has failed to
demonstrate that his defense was prejudiced by trial counsel’s
failure to investigate and present the available mitigation
evidence introduced at the habeas hearing. We hold that the
record does not demonstrate that, but for his trial counsel’s
alleged failures, there is a reasonable probability that the
result of the second penalty phase proceeding would have been
26
different. See Strickland, 466 U.S. at 694; see also Wiggins,
539 U.S. at 534; Williams, 529 U.S. at 391; Lovitt, 266 Va. at
257, 585 S.E.2d at 825. In short, the record before us does not
undermine confidence in the outcome of the proceedings. See
Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S. at 534;
Williams, 529 U.S. at 391; Lovitt, 266 Va. at 257, 585 S.E.2d at
825.
For these reasons, we will dismiss the petition for a writ
of habeas corpus.
Petition dismissed.
27