Yarbrough v. Commonwealth

Present: All the Justices

ROBERT STACY YARBROUGH

v. Record No. 010161 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 14, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge

In this appeal, we review the death sentence imposed on

Robert Stacy Yarbrough after penalty phase proceedings conducted

upon remand of this case to the trial court.

I. PROCEEDINGS

The defendant was convicted in a jury trial of capital

murder for the willful, deliberate, and premeditated killing of

Cyril Hugh Hamby during the commission of robbery, in violation

of Code § 18.2-31(4). The trial court sentenced the defendant

to death in accordance with the jury verdict. A full statement

of facts surrounding the crime is set forth in Yarbrough v.

Commonwealth, 258 Va. 347, 353-55, 519 S.E.2d 602, 603-05

(1999). In that appeal, we affirmed the defendant’s conviction

but remanded the case for a new penalty determination because

the trial court denied the defendant's request for a jury

instruction that he would be ineligible for parole if sentenced

to life imprisonment. Id. at 366-74, 519 S.E.2d at 611-17.

In the penalty phase proceeding on remand, a different jury

fixed the defendant’s punishment for capital murder at death
based on a finding of “vileness.” Code § 19.2-264.2. The trial

court sentenced the defendant in accordance with that verdict.

In this appeal, we review the defendant’s death sentence

pursuant to Code § 17.1-313(C) and consider his assignments of

error related to various rulings made by the trial court during

the second penalty phase proceeding.

II. PENALTY PHASE EVIDENCE

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

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

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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.

III. JURY SELECTION ISSUE

During jury selection, the prosecutor used three peremptory

strikes to remove African Americans from the 24-member venire.

The defendant asserted a challenge to the jury panel under

Batson v. Kentucky, 476 U.S. 79 (1986), alleging that these

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members of the venire were excluded from the jury panel because

of their race. After the prosecutor explained his reasons for

striking these three individuals, the trial court overruled the

defendant’s Batson challenge.

The prosecutor gave the following explanation of his action

striking potential juror Melvin L. Woodson, Sr., from the panel:

[W]hen he first walked in the room his eyes were on the
defendant. . . . He subsequently, gave us a great deal of
concern. We had a problem hearing the last comment he made
to [defense counsel]. The air conditioning was on. We
didn’t hear what was said. . . . We [were] concerned about
his sympathies lying with the defendant or [defense
counsel], based upon the comment that he made to [defense
counsel], and based upon his actions in court. . . . If we
knew what comment he made, I might be able to answer the
question to the Court in more detail. . . .

The prosecutor also stated that Woodson’s last “comment”
concerned him because “[i]t was about race.” The comment in
question took place during the following exchange:

[DEFENSE COUNSEL]: [The defendant], obviously is black.
[The victim] is white. I know you realize that. Do either
of you think that would influence you in any way? Do you
think you might reach a different decision if they were
both white?

MR. WOODSON: I deal with both races every day.

[DEFENSE COUNSEL]: I know you do.

At defense counsel’s request, the court reporter related

the substance of Woodson’s comment, and the prosecutor

responded,

We didn’t hear that. We believe[d] based upon [defense
counsel’s] reaction to his comment that something else was
said. That is why we did it, because we didn’t know. . . .
We didn’t have that information at the time we made the

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 strikes, and we didn’t know what was said. We were back
there blind. That is essentially why we made the strike.
We didn’t know, but it raised a concern, because it was
about race that it concerned me what it was. [sic] That is
the basis for the strike. One of the primary reasons.

The prosecutor further stated:

[O]ur concern [also] was as to his reaction to the
defendant. He is a teacher who teaches children that are
just a couple of years younger than [the defendant], and we
did not know what that comment was at that time. . . . [I]n
view of . . . [Mr. Woodson’s] relationship with people that
age, and the reaction that I noted when he first came in.
I made note of him in my notes that we would be concerned,
and we would have a very difficult time to convince him to
impose the death penalty on someone 19 years old.

On appeal, the defendant concedes that the prosecutor had

valid race-neutral reasons for using peremptory strikes to

remove two other African Americans from the jury panel, but

contends that the prosecutor struck Melvin Woodson “on racial

grounds.” The defendant argues that the prosecutor failed to

present a valid race-neutral reason for making this peremptory

strike because he stated to the court that he believed Woodson

had made a “racial” comment.

In response, the Commonwealth contends that the facts do

not raise an inference that the prosecutor struck Woodson from

the jury panel because of his race. The Commonwealth notes the

prosecutor’s explanation that Woodson exhibited an unusual

interest in the defendant and that as a teacher, Woodson may

have been sympathetic to a 19-year-old defendant. The

Commonwealth contends that such concerns about a potential

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juror’s demeanor and interest in a defendant provide a race-

neutral explanation for exercising a peremptory strike. The

Commonwealth also asserts that the prosecutor’s inability to

hear Woodson's complete response concerning race provides a

separate race-neutral explanation for striking Woodson from the

panel.

In considering this argument, we review the principles that

govern the determination of a Batson challenge. In Batson, the

Supreme Court stated the requirements for establishing a prima

facie case of purposeful discrimination in the selection of a

petit jury. 476 U.S. at 96. The Court held that to establish a

prima facie case,

the defendant first must show that he is a member of a
cognizable racial group . . . and that the prosecutor has
exercised peremptory challenges to remove from the venire
members of the defendant’s race. Second, the defendant is
entitled to rely on the fact, as to which there can be no
dispute, that peremptory challenges constitute a jury
selection practice that permits “those to discriminate who
are of a mind to discriminate.” . . . Finally, the
defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used
that practice to exclude the veniremen from the petit jury
on account of their race.

Id.

The defendant has the burden of producing a record that

supports a prima facie case of purposeful discrimination.

United States v. Escobar-de Jesus, 187 F.3d 148, 164 (1st Cir.

1999), cert. denied, 528 U.S. 1176 (2000); Johnson v.

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Commonwealth, 259 Va. 654, 674, 529 S.E.2d 769, 780, cert.

denied, ___ U.S. ___, 121 S.Ct. 432 (2000); Atkins v.

Commonwealth, 257 Va. 160, 175, 510 S.E.2d 445, 454 (1999); see

Batson, 476 U.S. at 96-97. The fact that the prosecution has

excluded African Americans by using peremptory strikes does not

itself establish such a prima facie case under Batson. Johnson,

259 Va. at 674, 529 S.E.2d at 780; see Batson, 476 U.S. at 96-

97.

A defendant also must identify facts and circumstances that

raise an inference that potential jurors were excluded based on

their race. Batson, 476 U.S. at 96; Escobar-de Jesus, 187 F.3d

at 164; Johnson, 259 Va. at 674, 529 S.E.2d at 781. If a

defendant makes a prima facie showing that the prosecutor has

made a peremptory strike on the basis of race, the burden shifts

to the prosecution to articulate race-neutral reasons for that

strike. Batson, 476 U.S. at 97; Atkins, 257 Va. at 175, 510

S.E.2d at 454; Chichester v. Commonwealth, 248 Va. 311, 323, 448

S.E.2d 638, 646 (1994), cert. denied, 513 U.S. 1166 (1995).

A trial court’s determination whether the reason given for

exercising a peremptory strike is race-neutral is entitled to

great deference. Atkins, 257 Va. at 175, 510 S.E.2d at 454;

Spencer v. Commonwealth, 238 Va. 295, 310, 384 S.E.2d 785, 795

(1989), cert. denied, 493 U.S. 1093 (1990). This determination

will not be reversed on appeal unless it is “clearly erroneous.”

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Hernandez v. New York, 500 U.S. 352, 369 (1991); Atkins, 257 Va.

at 175, 510 S.E.2d at 454.

Assuming, without deciding, that the defendant established

a prima facie case of purposeful discrimination under Batson, we

hold that the record supports the trial court’s conclusion that

Woodson was not struck from the jury panel because of his race.

The trial court accepted the prosecutor’s two-fold explanation

concerning Woodson’s profession as a teacher and the

prosecutor's inability to hear Woodson’s complete response to

the question concerning racial bias. The trial court’s

determination that these explanations were race-neutral

necessarily was based on the court’s evaluation of the

prosecutor’s credibility. We find nothing in the record to

support a conclusion that the court’s determination was clearly

erroneous, and we observe that the trial judge himself indicated

that he was unable to hear Woodson’s response on the subject of

race. Thus, we will not disturb the trial court’s finding that

the prosecutor’s explanations for striking Woodson were race-

neutral.

IV. MISTRIAL MOTION

The defendant assigns error to the trial court’s refusal to

grant his motion for a mistrial, which was based on allegedly

improper remarks made by the prosecutor in his rebuttal to

defense counsel’s closing argument. Defense counsel had argued

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that if the defendant were sentenced to life imprisonment, he

would remain in prison for life with “[n]o chance of ever seeing

the outside world,” and that he would “never leave, ever.” In

rebuttal, the prosecutor stated:

[W]e used to have parole eligibility, and then a few years
ago the legislature decided to abolish that. . . . What
[defense counsel] is asking you to do is take a pair of
dice and roll them and hope that the law doesn’t change
again.

Defense counsel objected to this remark, stating that it

was “highly improper,” and that the prosecutor knew that “even

if the law changes, it doesn’t change this.” The trial court

responded, “I think the comment is improper, and I would ask

that the jury disregard that.”

The prosecutor continued his closing argument, stating that

“I don’t know what is worse[,] the fear that he gets out[,] or

the fear of what he is going to do with nothing to lose for the

rest of his life.” Defense counsel objected to this remark but

did not request a mistrial during the penalty phase trial based

on this or any other of the prosecutor’s arguments.

Nearly six months after the penalty phase trial, but prior

to sentencing, the defendant filed a motion for a mistrial

asserting that the prosecutor’s remarks about potential changes

in the law of parole eligibility were so inflammatory that the

trial court’s cautionary instruction was insufficient. The

defendant contended that the prosecutor’s remarks generally

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misstated the law and also were improper because the defendant’s

future dangerousness was not at issue. At the sentencing

hearing, the trial court denied the mistrial motion, stating

that the “prompt cautionary instruction that the [c]ourt gave

the jury . . . was sufficient to take care of any problems that

were raised by those remarks. And I’m not going to assume that

the jury or any juror did not follow the instructions that the

[c]ourt had given them.”

On appeal, the defendant argues that the trial court erred

in denying his mistrial motion because the prosecutor’s remarks

were improper and were an incorrect statement of the law. The

defendant also contends that the court’s cautionary instruction

was inadequate because the court did not instruct the jury to

disregard the remarks at issue but merely asked the jury to do

so. The defendant asserts that the trial court’s actions denied

him a fair trial and due process of law. We do not reach the

merits of these arguments.

A motion for a mistrial based on allegedly improper

argument of counsel is untimely unless the motion is stated when

the remarks at issue were made. Yeatts v. Commonwealth, 242 Va.

121, 137, 410 S.E.2d 254, 264 (1991), cert. denied, 503 U.S. 946

(1992). Here, the defendant’s mistrial motion, including his

objection to the form and the content of the trial court’s

curative instruction, was made several months after the jury

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delivered its verdict. Since this mistrial motion was untimely,

we will not consider its substance on appeal. See Schmitt v.

Commonwealth, 262 Va. 127, 148, 157 S.E.2d 186, 200 (2001);

Sheppard v. Commonwealth, 250 Va. 379, 394-95, 464 S.E.2d 131,

140-41 (1995), cert. denied, 517 U.S. 1110 (1996); Breard v.

Commonwealth, 248 Va. 68, 82, 445 S.E.2d 670, 679, cert. denied,

513 U.S. 971 (1994); Yeatts, 242 Va. at 137, 410 S.E.2d at 264;

Cheng v. Commonwealth, 240 Va. 26, 38-39, 393 S.E.2d 599, 605-06

(1990).

V. SENTENCE REVIEW

Passion and Prejudice

Under Code § 17.1-313(C), we review the defendant’s death

sentence to determine whether it (1) was imposed under the

influence of passion, prejudice, or any other arbitrary factor;

or (2) is excessive or disproportionate to the penalty imposed

in similar cases, considering both the crime and the defendant.

The defendant argues that the death sentence was based on

passion, prejudice, and arbitrariness, and that the trial court

erred in “refusing” to vacate the sentence, because “[t]he

probability of prejudice and emotion taking their toll on the

jury was great, most especially in light of the prosecutor’s

highly improper argument concerning the possibility of [the

defendant] one day being paroled.” The defendant asserts that

since the trial court did not grant his motion for a mistrial,

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“the only way to be certain that the death penalty was not

imposed as the result of passion and fear was to vacate that

sentence and impose a sentence of life imprisonment.” We find

no merit in these arguments.

The trial court gave a prompt, explicit curative

instruction when the defendant objected to the prosecutor’s

argument. Unless the record clearly shows that a jury has

disregarded such a curative instruction, we will presume that

the jury followed it. Schmitt, 262 Va. at 147-48, 547 S.E.2d at

200; Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411,

420, cert. denied, 510 U.S. 859 (1993); Spencer v. Commonwealth,

240 Va. 78, 95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908

(1990). Here, the record does not show that the jury

disregarded the court’s instruction or that its verdict was

based on any consideration other than the evidence presented.

Thus, we conclude that record fails to support the defendant’s

argument that the prosecutor’s remarks caused the jury to act

with passion, prejudice, or in an arbitrary manner. We also

hold that the record, considered in its entirety, fails to show

that the jury rendered its verdict based on passion, prejudice,

or any other arbitrary factor.

Excessiveness and Proportionality

The defendant argues that the trial court erred in

“refusing” to vacate the jury’s death sentence because it was

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disproportionate to the penalty imposed in similar cases. The

defendant also contends that his case “pale[s] by comparison

with virtually every case in which the Court has found the

evidence sufficient to support the vileness predicate.” We

disagree.

First, the death penalty statutes do not require the trial

court to conduct a proportionality review. Lovitt, 260 Va. 497,

518, 537 S.E.2d 866, 880 (2000). Instead, Code § 19.2-264.5

directs that “[a]fter consideration of the [post-sentence]

report, and upon good cause shown, the [trial] court may set

aside the sentence of death and impose a sentence of

imprisonment for life.” This provision permits the capital

murder defendant the same opportunity as any other criminal

defendant, under a precise and unambiguous standard, to ask the

trial court to change the jury’s sentence. Id.; Bassett v.

Commonwealth, 222 Va. 844, 860, 284 S.E.2d 844, 854 (1981),

cert. denied, 456 U.S. 938 (1982). Here, after hearing argument

from the defendant’s counsel, the trial court declined to

exercise its discretionary authority under the statute to impose

a sentence of life imprisonment. Based on the record before us,

we conclude that the trial court did not abuse its discretion in

declining to change the sentence set by the jury.

In conducting this Court’s proportionality review, we must

determine whether other sentencing bodies in this jurisdiction

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generally impose the death penalty for comparable or similar

crimes, considering both the crime and the defendant. Schmitt,

262 Va. at 154, 547 S.E.2d at 203; Lovitt, 260 Va. at 518, 537

S.E.2d at 880; Johnson, 259 Va. at 683, 529 S.E.2d at 786;

Jenkins v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371

(1992), cert. denied, 507 U.S. 1036 (1993). We have compared

the record in the present case with the records of other capital

murder cases, including those in which a sentence of life

imprisonment was imposed. We also have examined the records of

all capital cases reviewed by this Court pursuant to Code

§ 17.1-313(E).

Under Code § 19.2-264.2, the jury’s finding of “vileness”

was based on a conclusion that the defendant’s “conduct in

committing the offense for which he stands charged was

outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind or an aggravated battery to

the victim.” Since the jury imposed the death sentence based on

this predicate, we give particular consideration to other

capital murder cases in which the death penalty was obtained

under the same predicate.

Considering both the crime and the defendant, we conclude

that the death sentence in this case is not excessive or

disproportionate to penalties imposed by other sentencing bodies

in the Commonwealth for comparable or similar crimes. As stated

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above, after robbing Cyril Hamby, the defendant repeatedly cut

the front and rear of Hamby’s neck in a “sawing motion” with a

pocket knife, while Hamby was conscious and begging the

defendant to stop attacking him. Hamby sustained a minimum of

ten separate knife wounds to the neck, which were of a type

usually associated with an attempted decapitation.

The vileness of this offense, as shown by the aggravated

battery the defendant inflicted on Hamby and the depravity of

mind required for the execution of this particular crime, is

comparable to the vileness we have considered in other cases.

We also observe that juries in this Commonwealth, with some

exceptions, generally have imposed the death sentence for

convictions of capital murder based on a finding of “vileness”

in which the underlying predicate crime was robbery. See, e.g.,

Overton v. Commonwealth, 260 Va. 599, 539 S.E.2d 421 (2000),

cert. denied, ___ U.S. ___, 121 S.Ct. 1651 (2001); Fry v.

Commonwealth, 250 Va. 413, 463 S.E.2d 433 (1995), cert. denied,

517 U.S. 1110 (1996); Bennett v. Commonwealth, 236 Va. 448, 374

S.E.2d 303 (1988), cert. denied, 490 U.S. 1028 (1989); Turner v.

Commonwealth, 234 Va. 543, 364 S.E.2d 483, cert. denied, 486

U.S. 1017 (1988); Correll v. Commonwealth, 232 Va. 454, 352

S.E.2d 352, cert. denied, 482 U.S. 931 (1987); Wise v.

Commonwealth, 230 Va. 322, 337 S.E.2d 715 (1985), cert. denied,

475 U.S. 1112 (1986); Boggs v. Commonwealth, 229 Va. 501, 331

15
S.E.2d 407 (1985), cert. denied, 475 U.S. 1031 (1986); Jones v.

Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984), cert. denied,

472 U.S. 1012 (1985); LeVasseur v. Commonwealth, 225 Va. 564,

304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063 (1984); Bunch

v. Commonwealth, 225 Va. 423, 304 S.E.2d 271, cert. denied, 464

U.S. 977 (1983); Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d

162, cert. denied, 459 U.S. 882 (1982).

VI. CONCLUSION

We find no reversible error in the judgment of the trial

court. Having reviewed the defendant’s death sentence pursuant

to Code § 17.1-313, we decline to commute the sentence.

Accordingly, we will affirm the trial court’s judgment.

Affirmed.

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