Yarbrough v. Commonwealth

Present: All the Justices

ROBERT STACY YARBROUGH
OPINION BY
v. Record Nos. 990261, 990262 JUSTICE LAWRENCE L. KOONTZ, JR.
September 17, 1999
COMMONWEALTH OF VIRGINIA

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

In this appeal, as required by Code § 17.1-313(A), we

review the capital murder conviction and death sentence imposed

upon Robert Stacy Yarbrough. 1

I. BACKGROUND

Under familiar principles of appellate review, we will

review the evidence in the light most favorable to the

Commonwealth, the party prevailing below. Clagett v.

Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert.

denied, 519 U.S. 1122 (1997). Yarbrough and Dominic Jackson

Rainey had attended high school together in Mecklenburg County

prior to Rainey’s moving to Richmond with his mother. While on

a subsequent visit to see his grandfather in Mecklenburg County,

1
Record number 990262 is the appeal of Yarbrough’s related
conviction for robbery which was transferred to this Court from
the Court of Appeals. Although Yarbrough seeks to have this
conviction overturned, none of his assignments of error presents
a direct challenge to the merits of that conviction.
Accordingly, his conviction and sentence of life imprisonment on
that charge will be affirmed.
Rainey renewed his acquaintance with Yarbrough. On May 7, 1997,

Yarbrough told Rainey of his plan to rob Cyril Hugh Hamby, the

77-year-old owner of Hamby’s Store on U.S. Route 1 in

Mecklenburg County. The following evening, Yarbrough went to

Rainey’s grandfather’s house and told Rainey that “he was ready

to go rob Mr. Hamby.”

Yarbrough and Rainey were seen walking along U.S. Route 1

toward Hamby’s Store between 9:30 and 10:30 p.m. on May 8, 1997.

Yarbrough was armed with a shotgun. The two men waited at a

picnic table across the road until there were no customers in

the store. Yarbrough hid the shotgun under his coat and the two

men entered the store. At Yarbrough’s direction, Rainey locked

the front door.

Yarbrough pointed the shotgun at Hamby and ordered him to

come out from behind the store’s counter. Yarbrough and Rainey

took Hamby to the living quarters at the rear of the store where

they found an electrical extension cord and string. Yarbrough

brought Hamby back into the public area of the store, forced him

to lie on the floor in an aisle, and tied Hamby’s hands behind

his back with the extension cord and string.

Yarbrough went to the store’s electrical circuit box and

turned off the outside lights. He then demanded that Hamby

reveal where guns were hidden in the store. When Hamby denied

2
having any guns, Yarbrough kicked Hamby in the head and upper

left arm. Yarbrough then forced the store’s cash register open

by dropping it on the floor and took the money that was in the

register.

Yarbrough returned to where Hamby was lying and, pointing

the shotgun at him, again demanded to be told where guns were

hidden in the store. When Hamby again denied having any guns,

Yarbrough put down the shotgun, took a knife from his pocket,

and began to cut Hamby’s neck with a “sawing motion” as Hamby

pleaded with Yarbrough to stop. After cutting Hamby’s neck at

least ten times, Yarbrough rifled through Hamby’s clothing and

took his wallet. Yarbrough and Rainey took beer, wine, and

cigarettes from the store and left by the back door. Yarbrough

gave Rainey one hundred dollars in small bills and kept a larger

sum for himself.

Yarbrough and Rainey returned to Rainey’s grandfather’s

house to change clothes and then went to the home of Conrad

Dortch to buy marijuana. Dortch was not at home, so Yarbrough

and Rainey waited on the porch and drank the wine taken during

the robbery. Dortch arrived home at approximately 12:45 a.m.

and sold Yarbrough a marijuana cigarette for $10. According to

Rainey, Yarbrough was “flashing” his money. When Yarbrough and

3
Rainey left Dortch’s home, Rainey threw an empty wine bottle

into the yard.

Yarbrough and Rainey returned to Rainey’s grandfather’s

house where they spent the remainder of the night. Before

leaving in the morning, Yarbrough threw his tennis shoes, which

were stained with Hamby’s blood, into a trash barrel behind the

house.

Hamby’s body was discovered at approximately 8:20 a.m. on

May 9, 1997 by Betsy Russell, a former employee of Hamby’s who

had been informed by a neighbor that “there was something wrong

at the store.” A subsequent autopsy revealed that Hamby had

bled to death as a result of deep, penetrating wounds to his

neck. According to a state medical examiner, Hamby’s wounds

were “entirely consistent” with an attempted beheading, however,

because no major arteries were cut, it would have taken at least

several minutes for Hamby to have bled to death. Hamby also had

several blunt force injuries to his head and upper left arm

consistent with his having been kicked with moderate force.

On May 10, 1997, Dortch contacted the Virginia State Police

and told them of his encounter with Yarbrough and Rainey.

Police later recovered a wine bottle and label from Dortch’s

yard. The wine bottle was of a brand that was sold at Hamby’s

store.

4
 On May 14, 1997, police executed a search warrant at

Yarbrough’s home and recovered bloodstained clothing and a

three-bladed “Uncle Henry” pocketknife. Police also recovered

Yarbrough’s tennis shoes from the trash barrel behind Rainey’s

grandfather’s house. DNA testing of the bloodstains found on

Yarbrough’s shoes and clothing established a positive match with

Hamby’s blood. DNA tests of blood traces found on the “Uncle

Henry” knife established that a mixture of Hamby’s and

Yarbrough’s DNA was present on the blade of the knife.

Forensic analysis of the bloodstain patterns on Yarbrough’s

clothing supported the conclusion that they were consistent with

a spray of blood resulting from trauma. An expert testified

that the bloodstains on the lower front of Yarbrough’s shirt

were made “in close proximity to the trauma that released the

blood.” Several shoeprints found in the store were identified

as having been made by Yarbrough’s shoes, including those near

the circuit box, behind the counter, and in the bloodstains near

Hamby’s head. Police also recovered Rainey’s boots and

identified prints found near Hamby’s feet and in the living

quarters as having been made by these boots.

5
 II. PROCEEDINGS

A. Pre-trial

On September 8, 1997, after Yarbrough had been arrested,

but before he was indicted for Hamby’s murder, the Commonwealth

filed a motion for the appointment of a special assistant

prosecutor. In that motion, the Commonwealth relied on Code

§ 19.2-155, which permits the appointment of a special

prosecutor where the local Commonwealth’s Attorney is unable to

fulfill his duties by reason of temporary disability or ethical

disqualification. The Commonwealth further asserted that “it

would be proper to have another attorney assist in prosecuting

[Yarbrough] because of the complex nature of the case.”

(Emphasis added.)

Following an ex parte hearing, the trial court granted the

Commonwealth’s motion and appointed Warren Von Schuch, an

assistant Commonwealth’s Attorney for Chesterfield County, as a

special assistant prosecutor. In doing so, the trial court

cited Code § 19.2-155 and made reference to Von Schuch’s

experience with complex cases.

On September 25, 1997, Yarbrough filed a motion to vacate

the appointment of Von Schuch. The trial court agreed to review

its prior order and permitted Yarbrough to present argument

opposing the Commonwealth’s renewed motion for appointment of a

6
special assistant prosecutor. After hearing argument from both

Yarbrough and the Commonwealth, the trial court vacated the

prior order and then granted the Commonwealth’s renewed motion,

again appointing Von Schuch to assist in the prosecution of

Yarbrough. In doing so, the trial court relied on its inherent

authority to administer cases on its docket, making no reference

to Code § 19.2-155.

During its December 1997 term, the Mecklenburg County grand

jury indicted Yarbrough for capital murder of Hamby during the

commission of a robbery, Code § 18.2-31(4), and robbery of

Hamby, Code § 18.2-58. On January 30, 1998, Yarbrough filed a

motion and supporting memorandum challenging the

constitutionality of Virginia’s capital murder statute and

capital punishment sentencing and appellate review procedures on

multiple grounds. The trial court heard argument on this motion

and other pre-trial matters on May 4, 1998. In an order entered

June 24, 1998 nunc pro tunc to May 4, 1998, the trial court

overruled the motion in its entirety without specific comment.

B. Guilt-determination Phase

A four-day jury trial commenced in the trial court on June

23, 1998. At that trial, the Commonwealth presented evidence in

accord with the above-recited facts. Rainey was the principal

witness for the Commonwealth. In his testimony, Rainey stated

7
that on the way to Hamby’s Store he told Yarbrough that “I was

ready to go back to the house, I didn’t want to go.” Yarbrough

threatened “to do something” to Rainey if he did not assist in

the robbery. Rainey then described in detail the events leading

up to the killing. According to Rainey, when Yarbrough pulled

the knife from his pocket, Rainey protested and asked Yarbrough

what he planned to do. Yarbrough did not respond and “started

to cut Mr. Hamby . . . around the [front of the] neck. And then

after he finished, he cut him on the back of the neck.” Rainey

further testified that when Yarbrough first started the cutting,

Hamby “was saying ‘please’ and ‘no’.”

David Thompson testified that he saw Yarbrough and Rainey

walking toward Hamby’s Store between 9:30 and 10:30 on the

evening of the murder. Dortch also testified, relating the

incidents of his encounter with Yarbrough and Rainey later that

night. The Commonwealth presented extensive testimony and

physical evidence through police investigators and forensic

experts.

At the conclusion of the Commonwealth’s evidence, Yarbrough

moved to strike “the capital aspect of the murder charge” on the

ground that Rainey’s accomplice testimony was the only evidence

from which the jury could find that Yarbrough, and not Rainey,

was the actual killer. Yarbrough contended that Rainey’s

8
testimony was unreliable and inherently self-serving. The trial

court overruled the motion to strike stating that the

Commonwealth had made out a prima facie case through Rainey’s

testimony and the forensic evidence.

Yarbrough called as witnesses the assistant principal and a

teacher from the high school Yarbrough and Rainey had attended.

Each testified that they knew Rainey and that “[h]is reputation

is not that good in reference to honesty.” Yarbrough called no

other witnesses and did not testify on his own behalf.

At the conclusion of the evidence, Yarbrough renewed his

motion to strike the capital element of the murder charge, again

asserting that Rainey’s testimony was not sufficiently credible

to permit the jury to find that Yarbrough, and not Rainey, had

cut Hamby’s neck. The trial court overruled the motion. The

jury returned its verdict against Yarbrough, finding him guilty

of the capital murder and robbery of Hamby.

C. Penalty-determination Phase

After the jury returned its verdict finding Yarbrough

guilty of capital murder and robbery, the penalty-determination

phase of the trial immediately commenced. Prior to the

presentation of evidence, the trial court received proposed jury

instructions. At that time, the Commonwealth indicated that it

would present evidence and argument solely on the issue of

9
whether the death penalty was warranted because Yarbrough’s

crime was “outrageously or wantonly vile, horrible or inhuman in

that it involved torture, depravity of mind or an aggravated

battery to the victim,” commonly referred to as the “vileness”

aggravating factor. See Code § 19.2-264.2. Accordingly, the

jury was not to be instructed to consider the probability that

Yarbrough “would commit criminal acts of violence that would

constitute a continuing serious threat to society,” the “future

dangerousness” aggravating factor. Id.

Yarbrough, asserting that he would be ineligible for parole

if given a sentence of life imprisonment, proffered the

following jury instruction: “The words ‘imprisonment for life’

mean imprisonment for life without possibility of parole.” The

Commonwealth opposed the instruction on the ground that Simmons

v. South Carolina, 512 U.S. 154 (1994), and its application in

prior decisions of this Court required a “life means life”

instruction only where the Commonwealth sought to prove the

future dangerousness aggravating factor. Yarbrough contended

that where a “life means life” instruction is given, the jury

tends to favor life imprisonment over the death penalty and that

the Commonwealth chose not to present evidence on future

dangerousness in order to avoid the applicability of such an

instruction. Yarbrough asserted that the instruction was

10
nonetheless appropriate as a matter of fundamental fairness and

to assure a lack of juror confusion even in the absence of an

assertion of future dangerousness. The trial court refused

Yarbrough’s “life means life” instruction, stating that it was

not appropriate under the current state of the law in Virginia

where the Commonwealth relies only on the vileness aggravating

factor.

The Commonwealth’s evidence during the penalty-

determination phase of the trial consisted of the testimony of

several of Hamby’s relatives and an acquaintance. Yarbrough

called his mother as a witness on his behalf.

During closing argument Yarbrough’s counsel did not

expressly assert that Yarbrough would be ineligible for parole,

but did assert that “[l]ife is life . . . [h]e will spend a long

time in prison” and suggested that Yarbrough’s life span would

determine the number of years he would serve in prison. After

the Commonwealth’s closing argument, Yarbrough again sought to

have the jury instructed that he would be ineligible for parole

should he be given a life sentence, asserting that the

Commonwealth had implicitly argued that Yarbrough would present

a continuing danger to society if not given the death sentence.

The trial court again refused to give the instruction, finding

11
that the Commonwealth’s argument had not implicated the issue of

Yarbrough’s future dangerousness.

After deliberating for some time, the jury sent a question

to the trial court. The trial court indicated to counsel that

“[i]t is the same question we always have.” The jury’s note

read:

If possible:
Will you please define “life in prison?” Does
that mean your entire life or does it have a certain
limit such as 12 years? (is there a specific limit
already set?)

Does that also include parole will be offered after a
specified number of years have been served?

Yarbrough again urged the trial court to define life

imprisonment as life imprisonment without possibility of parole.

The Commonwealth again asserted that the instruction was not

proper and asked the trial court to refuse to answer the jury’s

question. The trial court recalled the jury to the courtroom

and responded to the question, saying

The only way I can answer [the jury’s question] under
the present law in Virginia, as I understand it, is to
say to you that I can’t answer it, and that is that in
sentencing you must do what you feel is appropriate
under the circumstances of this case and not concern
yourselves with what might happen afterwards.

The jury then deliberated further and sentenced Yarbrough

to death for the capital murder of Hamby and to life

imprisonment for the associated robbery charge.

12
D. Post-trial

Following the preparation of a pre-sentence report, the

trial court received argument from counsel on confirming the

jury’s sentence of death. In arguing to set aside the death

sentence, Yarbrough’s counsel asserted the trial court was

“wrong in not telling” the jurors that Yarbrough would have been

parole-ineligible because “[t]his Court knows the truth, that

there is no parole.” The trial court, without comment, imposed

the jury’s verdict and sentence. This appeal followed.

III. DISCUSSION

We begin by noting that Yarbrough has neither briefed nor

presented oral argument on the fourth assignment of error

originally designated by him under Rule 5:22(b). That

assignment of error asserted that the trial court erred in

denying Yarbrough’s motion in limine to exclude certain physical

evidence and laboratory analysis of that evidence for failure of

the Commonwealth to establish the necessary chain of custody.

At oral argument of this appeal, Yarbrough conceded that the

failure to address an assignment of error constituted a waiver

of the issue asserted therein. Sheppard v. Commonwealth, 250

Va. 379, 386, 464 S.E.2d 131, 135 (1995), cert. denied, 517 U.S.

1110 (1996). Accordingly, we will not address the issue

asserted in assignment of error number 4. Moreover, we will

13
address the remaining assignments of error as originally

designated in the Rule 5:22(b) statement. Id. at 385-86, 464

S.E.2d at 135.

A. Issues Previously Decided

In assignment of error number 7, Yarbrough raises various

challenges to the constitutionality of Virginia’s capital murder

statute and the statutory scheme under which capital murder

trials are conducted and death sentences are reviewed on appeal.

The arguments raised within this assignment of error have been

thoroughly addressed and rejected in numerous prior capital

murder cases. 2 We find no reason to modify our previously

expressed views on these issues.

2
See, e.g., Smith v. Commonwealth, 219 Va. 455, 476-77, 248
S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967 (1979)
(“vileness” and “dangerousness” predicates for imposition of the
death penalty do not impermissibly fail to guide the jury’s
discretion); Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d
670, 675, cert. denied, 513 U.S. 971 (1994) (method of
instructing jury on mitigation does not impermissibly interfere
with jury’s consideration of evidence offered in mitigation);
Joseph v. Commonwealth, 249 Va. 78, 82, 452 S.E.2d 862, 865,
cert. denied, 516 U.S. 876 (1995) (death penalty does not
constitute cruel and unusual punishment; appellate review
process does not deprive defendant of statutory rights and due
process of law); Payne v. Commonwealth, 233 Va. 460, 473-74, 357
S.E.2d 500, 508-09, cert. denied, 484 U.S. 933 (1987)
(procedures for appellate review of death penalty cases,
including expedited review, provide a meaningful appeal and are
constitutional).

14
B. Appointment of Special Assistant Prosecutor

In assignment of error number 1, Yarbrough asserts that the

trial court erred in granting the Commonwealth’s renewed motion

to appoint as a special assistant prosecutor an assistant

Commonwealth’s Attorney from another jurisdiction. Yarbrough

contends that by its express terms Code § 19.2-155, the statute

relied upon by the Commonwealth in originally seeking the

appointment and cited by the trial court in its original order,

applies only where “the attorney for the Commonwealth . . . is

unable to act, or to attend to his official duties as attorney

for the Commonwealth, due to sickness, disability or other

reason of a temporary nature,” such as a fiduciary or familial

relationship to the accused, or some other ethical bar.

Yarbrough correctly asserts that no conflict or disability

was present that would have prohibited the Commonwealth’s

Attorney for Mecklenburg County from prosecuting the case.

Indeed, the Commonwealth’s Attorney served as lead counsel for

the Commonwealth throughout the trial. Additionally, Yarbrough

asserts that a further provision of Code § 19.2-155 permitting a

trial court to appoint “as a special assistant attorney for the

Commonwealth, without additional compensation, an attorney

employed by a state agency” upon request of the Commonwealth and

upon a finding by the trial court that “such appointment will

15
aid in the prosecution of a particular case or cases” is also

inapplicable. Yarbrough asserts that this is so because the

special assistant prosecutor named by the trial court in this

instance was an assistant Commonwealth’s Attorney and, thus, he

was an employee of a locality, not a state agency. 3

We need not address these contentions, however, because the

trial court vacated its original ex parte order citing Code

§ 19.2-155. In the subsequent order appointing the special

assistant prosecutor, entered after Yarbrough was afforded an

opportunity to be heard and oppose the Commonwealth’s renewed

motion, the trial court relied solely on its inherent authority

to administer cases on its docket. Thus, we need only be

concerned with whether the appointment of a special prosecutor

on motion of the Commonwealth falls within this broad discretion

afforded to a trial court. This is a matter of first impression

and one of obvious import to the conduct of criminal trials in

this Commonwealth.

Code § 15.2-1628(C), requiring the Commonwealth’s Attorneys

of most counties and their assistants to devote full time to

their duties, provides that

3
We note, however, that a Commonwealth’s Attorney is a
constitutional officer and that the State Compensation Board
must authorize the employment of assistant Commonwealth’s
Attorneys. Code §§ 15.2-1626, -1632, and -1633.
16
 [n]otwithstanding any other provisions of law, no
attorney for the Commonwealth or assistant required to
devote full time to his duties shall receive any
additional compensation from the Commonwealth or any
county or city for substituting for or assisting any
other attorney for the Commonwealth or his assistant
in any criminal prosecution or investigation.

The clear import of this statute, and an identical

provision of Code § 15.2-1630 applicable to the Commonwealth’s

Attorneys for independent cities and their assistants, is that

the prosecutors from one locality may call upon the prosecutors

of another locality to assist in complex litigation. Indeed,

because a Commonwealth’s Attorney, no less than any other member

of the bar, is subject to the rules of professional

responsibility, the duty of competence may require a

Commonwealth’s Attorney of lesser experience to seek the

association of more experienced counsel when prosecuting a

difficult, complex case. This being true, certainly a trial

court does not abuse its discretion in permitting the

Commonwealth to obtain the assistance of a Commonwealth’s

Attorney or assistant Commonwealth’s Attorney from another

jurisdiction who has greater familiarity with the issues

involved in such prosecutions and whose services are to be

rendered without additional expense to the taxpayers.

Yarbrough contends, however, that “[a] prosecutor from

outside the county will not have the same sense of dedication to

17
the citizens of the county, including the defendant” and, thus,

“[t]he out-of-county prosecutor has a legal disability”

analogous to that of the disability of a prospective juror who

is excused from jury service because he or she has not been a

resident of the locality in which a trial occurs for at least

six months. See Code § 8.01-337. We disagree.

The statutory residency requirements for determining the

pool of potential jurors in a locality may arguably be taken as

securing the right of a defendant to a trial by a jury of his

peers. To suggest, however, that a similar residency

requirement should be imposed upon a prosecutor is totally

without merit.

In the first place, the statutes governing the appointment

of assistant Commonwealth’s Attorneys contain no requirement of

residency in the locality in which they are employed. See Code

§§ 15.2-1628 and –1630. Secondly, as noted above, the rules of

professional responsibility place upon a Commonwealth’s Attorney

the same burdens and duties as any attorney. Paramount among

these responsibilities is the duty to perform competently and to

perform his duties to the fullest extent permitted and required

by the law. We presume that any Commonwealth’s Attorney,

cognizant of his or her professional responsibility, will

perform the duties required of the office without regard to the

18
locality in which he or she is called upon to render service.

Finally, and moreover, the appointment of a special assistant

attorney for the Commonwealth does not prejudice the defendant.

This is necessarily so simply because such an appointment does

not alter the truth-finding process of the defendant’s trial.

For these reasons, we hold that it rests within the sound

discretion of the trial court to appoint a Commonwealth’s

Attorney or an assistant Commonwealth’s Attorney to assist the

regular Commonwealth’s Attorney where the Commonwealth requests

the appointment for good cause. In the present case, the trial

court did not err in granting the Commonwealth’s requested

appointment of a special assistant prosecutor.

C. Credibility and Sufficiency of Evidence of Capital Murder

In assignments of error 5 and 6, Yarbrough asserts that the

trial court erred in failing to strike the capital aspect of the

murder indictment and in imposing the jury’s verdict with

respect to capital murder. As he did at trial, Yarbrough

maintains that the evidence adduced by the Commonwealth fails to

establish that he, and not Rainey, was the actual instigator and

perpetrator of the robbery and killing of Hamby. Yarbrough

asserts that Rainey’s accomplice testimony lacked sufficient

credibility and that, absent credible corroboration from direct

testimony, the forensic evidence established only that Yarbrough

19
was present at the time of the murder. Thus, he contends that

the evidence failed to support the indictment for capital murder

or, in the alternative, that the jury could not find him guilty

of capital murder because of reasonable doubt arising from

Rainey’s accomplice testimony.

Yarbrough further contends that even if he could be found

guilty of capital murder, the evidence was insufficient for the

jury to find in the penalty-determination phase that the killing

involved torture or an aggravated battery and, thus, that the

Commonwealth had failed to sustain its burden of proof as to the

vileness aggravating factor. Code § 19.2-264.2.

Specifically, Yarbrough asserts that the Commonwealth did

not establish that Hamby was conscious at the time of the murder

because the forensic evidence did not show that Hamby struggled

or resisted, which, Yarbrough contends, would be inconsistent

with Rainey’s testimony that Hamby pleaded with Yarbrough to

stop. Thus, he contends that the Commonwealth failed to prove

that the murder was necessarily vile in that it involved torture

of the victim.

Similarly, Yarbrough contends that the forensic evidence

failed to establish that the manner in which the killing

occurred constituted an aggravated battery beyond the minimum

necessary to accomplish an act of murder. Thus, Yarbrough

20
contends that the Commonwealth failed to establish the necessary

criteria from which the jury could find the murder to have been

sufficiently vile to warrant imposition of the death penalty. 4

For the reasons that follow, we disagree with each of these

contentions.

“[T]he credibility of witnesses and the weight to be

accorded their testimony are questions for the fact finder.”

Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42,

cert. denied, 502 U.S. 944 (1991). Where the jury has seen and

heard the witnesses and assessed their credibility and the

weight of their testimony, its determination of the facts will

not be overturned on appeal unless it is plainly wrong or

without evidence to support it. Code § 8.01-680. Where the

testimony of an accomplice comports with and is corroborated by

the forensic evidence, that testimony is not inherently

incredible. Cardwell v. Commonwealth, 248 Va. 501, 512, 450

S.E.2d 146, 153 (1994), cert. denied, 514 U.S. 1097 (1995). In

such a case, the determination of whether the accomplice’s

version of events is to be believed rests soundly within the

discretion of the jury. See, e.g., Joseph v. Commonwealth, 249

4
Yarbrough offered no express argument that the Commonwealth
failed to prove by sufficient evidence that the murder was the
result of a depravity of mind, the third criterion that may be
used to establish vileness. See Code § 19.2-264.2.
21
Va. 78, 86-87, 452 S.E.2d 862, 868, cert. denied, 516 U.S. 876

(1995). Accordingly, we hold that Rainey’s testimony, which was

corroborated by the forensic evidence, was not inherently

incredible and, thus, that the Commonwealth’s evidence was

sufficient to permit the jury to find that Yarbrough killed

Hamby.

Similarly, the question whether Hamby was conscious during

the murder is resolved by Rainey’s testimony that Hamby pleaded

with Yarbrough as Yarbrough cut Hamby’s neck. Because this

testimony was not inherently incredible particularly in light of

the state medical examiner’s testimony that it would have taken

several minutes for Hamby to have bled to death, the jury

reasonably could have found that Hamby was conscious throughout

the entire ordeal. Moreover, the fact that the forensic

evidence failed to establish that the 77-year-old victim

struggled does not necessarily support the conclusion that he

was unconscious. Indeed, it is just as reasonable for the jury

to have concluded that Hamby did not struggle in order to show

his submission to the threats being made by Yarbrough. While

Yarbrough may selectively craft an interpretation of the

evidence to suit his theory that Hamby was not conscious during

the murder, “the trial court, and this Court on appeal, may not

substitute its own judgment for that of the jury where a

22
reasonable interpretation of the evidence supports the verdict.”

Atkins v. Commonwealth, 257 Va. 160, 176, 510 S.E.2d 445, 455-56

(1999).

In support of his contention that the murder did not

involve an aggravated battery, Yarbrough asserts on brief that

although the method by which the killing was accomplished was

“inept and inefficient . . . the evidence never established that

one or even several cuts would have resulted in Hamby’s death.”

Thus, he argues that the jury could not find that the killing

was the result of an aggravated battery beyond the minimum

necessary to accomplish an act of murder. In essence, Yarbrough

contends that because the forensic evidence showed that none of

the individual cuts in Hamby’s neck would have been fatal,

Hamby’s death from loss of blood was necessarily the result of

all the multiple wounds and, thus, these wounds constituted the

minimum force necessary to accomplish the murder.

In defining an “aggravated battery” as “a battery which,

qualitatively and quantitatively, is more culpable than the

minimum necessary to accomplish an act of murder,” Smith v.

Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978),

cert. denied, 441 U.S. 967 (1979), we have never expressly

confined our consideration of the acts taken to accomplish the

murder to those wounds which actually caused the victim’s death.

23
To the contrary, we have held that acts that facilitate the

murder, such as restraining the victim by force or assaulting

the victim in the commission of a predicate felony are

additional factors to be considered. See, e.g., Hedrick v.

Commonwealth, 257 Va. 328, 338-39, 513 S.E.2d 634, 640 (1999).

Here, the evidence fairly establishes that Yarbrough both

restrained and assaulted Hamby in order to facilitate the

murder, acts which constituted an aggravated battery beyond that

necessary to accomplish the murder.

Moreover, in proving the aggravating factor of vileness

under Code § 19.2-264.2, we have consistently held that it is

necessary for the Commonwealth to prove only that the murder

“involves torture, depravity of mind, or aggravated battery to

the victim.” Bunch v. Commonwealth, 225 Va. 423, 442, 304

S.E.2d 271, 282, cert. denied, 464 U.S. 977 (1983)(emphasis

added); see also Hedrick, 257 Va. at 339-40, 513 S.E.2d at 640.

In other words, the use of the disjunctive “or” indicates that

only one criterion must be established, though the Commonwealth

may attempt to prove more than one. Here, as we have

demonstrated, the evidence established at least two of those

criteria. Accordingly, the evidence was sufficient for the jury

reasonably to find that Yarbrough was Hamby’s killer and that

the manner in which the killing occurred was sufficiently vile

24
to warrant imposition of the death penalty and, thus, that the

trial court did not err in refusing to strike the capital aspect

of the indictment.

D. “Life Means Life” Instruction

In assignments of error 2 and 3, Yarbrough contends that

the trial court erred in failing to instruct the jury that he

would be ineligible for parole if given a sentence of life

imprisonment and that the trial court further erred in failing

to respond to the jury’s question on this issue with an

instruction that life imprisonment means life without

possibility of parole. In making his argument, both in the

trial court and on appeal, Yarbrough asserts that the holding of

Simmons should be extended to all capital cases, and not limited

to those in which the prosecution relies on the aggravating

factor of the defendant’s future dangerousness to society. See

Simmons, 512 U.S. at 178 (O’Connor, J., concurring). The

Commonwealth contends that we have already limited the

application of the Simmons holding to those instances where the

defendant’s future dangerousness is at issue and the defendant

is, in fact, parole-ineligible, citing, e.g., Roach v.

Commonwealth, 251 Va. 324, 346, 468 S.E.2d 98, 105, cert.

denied, 519 U.S. 951 (1996). Thus, the Commonwealth asserts

that we have declined to extend the application of Simmons to a

25
case where the defendant is parole-ineligible, but where the

Commonwealth relies solely on the aggravating factor of the

vileness of the crime. The trial court accepted the

Commonwealth’s assertion that this was “the present state of the

law in Virginia” and refused to grant the proposed instruction

both prior to charging the jury and in responding to the jury’s

inquiry on this issue.

The trial court correctly noted that this Court has not

heretofore applied the holding in Simmons beyond the specific

factual situation of that case. Indeed, following the United

States Supreme Court’s decision in Simmons and the subsequent

abolition of parole in Virginia, we have not been presented with

a capital murder conviction in which a defendant sentenced to

death by a jury was parole-ineligible and the Commonwealth

relied solely on the vileness aggravating factor, rather than

relying on that factor and future dangerousness or future

dangerousness alone. 5 For example, Roach, cited by the

Commonwealth, was submitted to the jury solely on the future

dangerousness aggravating factor. Thus, we are presented with

an issue of first impression. For the reasons that follow, we

5
Cf. Cardwell, 248 Va. at 515, 450 S.E.2d at 155 (assuming
issue of applicability where aggravating factor is vileness was
not moot, Simmons did not apply in any case because defendant
was not parole-ineligible).
26
hold that the trial court erred in failing to grant the

instruction requested by Yarbrough.

As we have noted, both parties rely on Simmons as the

principal basis for their respective positions on this issue.

Yarbrough contends that Simmons created a broad due process

right “that a jury be fully informed as to what the realities of

a sentence are.” The Commonwealth contends that Simmons is

properly limited to those cases where future dangerousness is at

issue because the possibility that a mistaken belief by the jury

that the defendant is eligible for early release from a life

sentence would necessarily prejudice the jury in favor of

imposing the death penalty if the jury believed the defendant

posed a continuing threat to society. The Commonwealth asserts

that this prejudice is not invoked in the jury’s determination

of the vile nature of a crime already committed.

We find neither of these views to be persuasive on the

issue we are called upon to address in this appeal. The Simmons

decision has no application to the present case because the

defendant in that case did not challenge a conviction premised

solely on the aggravating factor of vileness and, thus, the

reliance of both parties on the analysis in that case is

misplaced. Simmons was decided under the Due Process Clause of

the Fourteenth Amendment, and in that decision the United States

27
Supreme Court established a minimum level of protection

applicable based upon a specific factual scenario. 6 While

Virginia courts are required to adhere to that minimum standard,

this Court must make its own determination about what additional

information a jury will be told about sentencing to ensure a

fair trial to both the defendant and the Commonwealth. In this

context, we agree that “the wisdom of the decision to permit

juror consideration of [post-sentencing events] is best left to

the States.” California v. Ramos, 463 U.S. 992, 1014 (1983);

see also Simmons, 512 U.S. at 183 (Scalia, J., dissenting).

Initially, we reject the Commonwealth’s contention that we

have declined, even by implication, to extend the rule in

Simmons to a capital murder case where the defendant was parole-

ineligible and the Commonwealth relied solely on the aggravating

factor of vileness of the crime. Since the abolition of parole

in Virginia through the enactment of Code § 53.1-165.1, a jury

has imposed the death sentence only where the Commonwealth

asserted the defendant’s future dangerousness to society. 7 Thus,

6
One of the plurality opinions in Simmons would have also
applied the jury trial right of the Eighth Amendment in
mandating a “life means life” instruction. See Simmons, 512
U.S. at 172 (Souter, J., concurring).
7
Code § 53.1-165.1, in pertinent part, provides that “[a]ny
person sentenced to a term of incarceration for a felony offense
committed on or after January 1, 1995, shall not be eligible for
28
in every capital murder trial where future dangerousness was an

issue and the crime occurred on or after January 1, 1995, the

defendant has been parole-ineligible if convicted, and the trial

courts of this Commonwealth have been required by Simmons to

instruct the jury on the defendant’s ineligibility for parole

where such an instruction was requested by the defendant prior

to the jury being instructed or following a jury’s question to

parole upon that offense.” Code § 53.1-40.01 provides for
parole of geriatric prisoners, but expressly excludes from its
application individuals convicted of capital murder, a class one
felony. Similarly, there is no possibility of parole from a
sentence of death. Code § 53.1-151(B).

In the following cases the defendants were parole-
ineligible and the jury imposed a sentence of death based upon
both the future dangerousness and vileness aggravating factors:
Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999);
Hedrick v. Commonwealth, 257 Va. 328, 513 S.E.2d 634 (1999);
Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999); Kasi
v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 2399 (1999); Swisher v.
Commonwealth, 256 Va. 471, 506 S.E.2d 763 (1998); Walton v.
Commonwealth, 256 Va. 85, 501 S.E.2d 134, cert. denied, ___ U.S.
___, 119 S.Ct. 602 (1998); Lilly v. Commonwealth, 255 Va. 558,
499 S.E.2d 522, cert. granted, ___ U.S. ___, 119 S.Ct. 443
(1998), judgment rev’d on other grounds, ___ U.S. ___, 119
S.Ct. 1887 (1999); Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d
898, cert. denied, ___ U.S. ___, 118 S.Ct. 608 (1997). In
Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d 538, cert.
denied, ___ U.S. ___, 119 S.Ct. 796 (1999), the jury imposed the
death sentence based solely upon a finding of future
dangerousness. In Reid v. Commonwealth, 256 Va. 561, 506 S.E.2d
787 (1998), the death sentence was imposed by the trial court
following a guilty plea based solely upon a finding of vileness;
however, it is self-evident that the concerns raised by Simmons
and in this appeal are not present where the sentence is imposed
by the trial court.
29
the trial court on that issue during deliberations.

Accordingly, in reviewing such decisions, we have applied

Simmons only under a factual scenario consonant with that

considered by the United States Supreme Court in that case. 8

Compare Wright v. Commonwealth, 248 Va. 485, 487, 450 S.E.2d

361, 363 (1994), cert. denied, 514 U.S. 1085 (1995)(finding that

defendant was not parole-ineligible) with Mickens v.

Commonwealth, 249 Va. 423, 425, 457 S.E.2d 9, 10 (1995)(finding

that defendant was parole-ineligible and remanding for

resentencing). Thus, since the abolition of parole in Virginia,

this appeal presents our first opportunity to consider whether

the granting of an instruction on parole ineligibility is

required in a capital case in which the Commonwealth relied on

the vileness aggravating factor alone.

There is no constitutional right, under either the

Constitution of Virginia or the United States Constitution, for

a defendant to have a jury determine his sentence. Fogg v.

Commonwealth, 215 Va. 164, 165, 207 S.E.2d 847, 849 (1974).

8
In doing so, we have limited our application of Simmons to
the penalty-determination phase, rejecting attempts to expand
its application to other procedures during trial. See, e.g.,
Lilly v. Commonwealth, 255 Va. 558, 567-68, 499 S.E.2d 522, 529-
30 (1998), rev’d on other grounds, ___ U.S. ___, 119 S.Ct. 1887
(1999) (holding that Simmons does not require the trial court to
“educate” potential jurors on effect of parole ineligibility
during voir dire).
30
Nonetheless, where the jury is delegated the responsibility of

recommending a sentence, the defendant’s right to a trial by an

informed jury requires that the jury be adequately apprised of

the nature of the range of sentences it may impose so that it

may assess an appropriate punishment. Cf. Commonwealth v.

Shifflett, 257 Va. 34, 43, 510 S.E.2d 232, 236 (1999). The

underlying concern is whether issues are presented in a manner

that could influence the jury to assess a penalty based upon

“‘fear rather than reason.’” Farris v. Commonwealth, 209 Va.

305, 307, 163 S.E.2d 575, 576 (1968) (quoting State v. Nickens,

403 S.W.2d 582, 585 (Mo. 1966)).

Where information about potential post-sentencing

procedures could lead a jury to impose a harsher sentence than

it otherwise might, such matters may not be presented to the

jury. Thus, it has long been held in this Commonwealth that it

is error for the trial court to instruct the jury that the

defendant would be eligible for parole or could benefit from an

executive act of pardon or clemency. 9 See, e.g., Hinton v.

9
As we have noted in prior opinions addressing this issue,
this rule is by no means universal, with many states taking the
position that such instructions are proper because a fully
informed jury is a right of both the defendant and the state.
See Hinton v. Commonwealth, 219 Va. 492, 495, 247 S.E.2d 704,
706 (1978). See generally Annotation, Prejudicial Effect of
Statement or Instruction of Court as to Possibility of Parole or
Pardon, 12 A.L.R.3rd 832 (1999); Annotation, Procedure to be
31
Commonwealth, 219 Va. 492, 496, 247 S.E.2d 704, 706 (1978);

Jones v. Commonwealth, 194 Va. 273, 279, 72 S.E.2d 693, 696-97

(1952); Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797,

799 (1935).

Unquestionably, it was this long-standing rule which

prompted the trial court’s refusal of Yarbrough’s proffered

“life means life” instruction and its response to the jury’s

question concerning the meaning of a life sentence. However,

the present case presents the diametrically opposite situation:

a case where information about post-sentencing procedures is

needed to prevent a jury from imposing a harsher sentence than

it otherwise might render out of speculative fears about events

that cannot transpire. Accordingly, an examination in some

detail of the cases which established this rule is warranted and

guides our further analysis as to their continued application to

capital murder prosecutions in light of the abolition of parole

under Code § 53.1-165.1.

In Coward, the jury in a drunk driving case made a specific

inquiry as to “what time the defendant would get off while he

Followed Where Jury Requests Information as to Possibility of
Pardon or Parole from Sentenced Imposed, 35 A.L.R.2d 769 (1997).
This division of authority, however, merely lends credence to
the views expressed in Ramos and by Justice Scalia in Simmons,
supra.

32
was confined in jail.” 164 Va. at 643, 178 S.E. at 798. The

trial court responded to this query by detailing for the jury

the then applicable rules for “good behavior” reduction of a

sentence. Id. We held that this was error and that “[t]hese

jurors should have been told that it was their duty, if they

found the accused guilty, to impose such sentence as seemed to

them to be just. What might afterwards happen was no concern of

theirs.” Id. at 646, 178 S.E. at 800. This language from

Coward has become the standard charge to a jury whenever an

inquiry is made regarding the possibility of a defendant being

paroled, pardoned, or benefited by an act of executive clemency.

In Jones, after determining that the defendant was guilty

of first-degree murder, the jury inquired whether “if they gave

him life imprisonment . . . they would have any assurance that

the defendant would not ‘get out.’” Jones, 194 Va. at 275, 72

S.E.2d at 694. The trial court responded that “it could not

give that assurance; that would be in the hands of the executive

branch of the government.” Id. The jury imposed a sentence of

death on Jones. We reversed that sentence.

Noting that under the law then applicable, a defendant

sentenced to life imprisonment for first-degree murder was not

eligible for parole, this Court asked rhetorically “who can say

that the verdict here would have been rendered had the jury been

33
told that the defendant could not be paroled after a sentence of

life imprisonment and would not ‘get out’ unless pardoned by the

governor?” Id. at 278-79, 72 S.E.2d at 696. Accordingly, we

held that the trial court’s instruction was erroneous because

“it did not fully inform the jury upon the point to which their

inquiry was directed.” Id. at 278, 72 S.E.2d at 696.

Nonetheless, because the defendant would have been subject to

parole if sentenced to a lesser term of years, or to pardon in

any case, in giving instructions to the trial court for the

remanded trial the majority adhered to the rule announced in

Coward in order to avoid having the jury base its sentence “on

speculative elements, rather than on the relevant facts of the

case, [since this] would lead inevitably to unjust verdicts.”

Id. at 279, 72 S.E.2d at 697.

Concurring, Justice Spratley, joined by Justice Smith,

opined that the defendant was prejudiced by the trial court’s

failure to inform the jury, as the defendant had requested, that

if given a sentence of life imprisonment he would not be

eligible for parole. Id. at 282, 72 S.E.2d at 698 (Spratley,

J., concurring). Moreover, Justice Spratley opined that the

failure to properly instruct the jury would inevitably result in

juror confusion and “a reaction, just as likely against the

accused as in his favor.” Id. at 281, 72 S.E.2d at 698.

34
Asserting that the view expressed by the majority of other

states at that time was that the jury could best perform its

duty when given full knowledge of the possible consequences of

the law, Justice Spratley concluded that “had such information

been given [to the jury] in simple and direct language” no

prejudice would have resulted. Id. at 283, 72 S.E.2d at 698.

The most succinct statement of the policy behind the rule

announced in Coward is to be found in our subsequent decision in

Hinton. In that case, the trial court responded to a jury’s

question concerning parole by instructing the jurors that “early

release [of prisoners] is not for the Court or jury to be

concerned about.” Hinton, 219 Va. at 494, 247 S.E.2d at 705.

However, the trial court then described the manner under which

early release might occur and told the jury that “[s]ometimes

people never serve their entire sentence.” Id. The trial court

concluded by stating that it “would like to advise [the jury]

about the probability of early release, but I’m not allowed to

tell you what it is in order that you may take it into

consideration when you fix punishment.” Id. at 494-95, 247

S.E.2d at 705. Following this instruction, the jury returned in

only five minutes with a verdict imposing the maximum sentence

possible for the defendant’s offense. Id. at 495, 247 S.E.2d at

706.

35
 Rejecting the Commonwealth’s argument that the trial

court’s statement comported with the holdings in Coward and

Jones, we reversed Hinton’s conviction. Noting that the issue

was still a matter of serious contention among the states, we

stated that “Virginia is committed to the proposition that the

trial court should not inform the jury that its sentence, once

imposed and confirmed, may be set aside or reduced by some other

arm of the State.” Hinton, 219 Va. at 495, 247 S.E.2d at 706

(citing Coward, 164 Va. at 646, 178 S.E. at 799-800) (emphasis

added). Rejecting the Commonwealth’s contention that the trial

court’s error was not sufficiently prejudicial to warrant

reversing the conviction, we stated the policy underlying our

continued adherence to the rule from Coward as follows:

[T]he jury’s question would have been necessary only
if one or more of the jurors contemplated voting for a
sentence less than the maximum; the inquiry would have
been superfluous if the jury had already decided to
assess [the maximum penalty]. Thus, as a result of
the improper emphasis on post-verdict procedures . . .
it [is] likely that some member of the jury,
influenced by the improper remarks, agreed to fix the
maximum penalty, when he or she otherwise would have
voted for a lesser sentence. Consequently, prejudice
to the defendant is manifest.

219 Va. at 496-97, 247 S.E.2d at 706-07.

In sum, the policy underlying the rule first announced in

Coward, and subsequently affirmed in Hinton, is that the jury

should not be permitted to speculate on the potential effect of

36
parole, pardon, or an act of clemency on its sentence because

doing so would inevitably prejudice the jury in favor of a

harsher sentence than the facts of the case might otherwise

warrant. This prejudice to the defendant was manifest in

Hinton, where the jury was required to fix punishment at a

specific term of years, and in Jones, where the jury could elect

between a sentence of death, of life imprisonment without

possibility of parole, or a term of years from which the

defendant might be paroled after a time. We have upheld the

rule from Coward and its progeny in capital murder cases where

the defendant would have been eligible for parole if given a

life sentence. See, e.g., Stamper v. Commonwealth, 220 Va. 260,

278, 257 S.E.2d 808, 821 (1979), cert. denied, 445 U.S. 972

(1980).

As we have noted above, the present case presents the

converse situation. It is manifest that the concern for

avoiding situations where juries speculate to the detriment of a

defendant on post-sentencing procedures and policies of the

executive branch of government requires that the absence of such

procedures or policies favoring the defendant be disclosed to

the jury. Where a defendant is convicted of capital murder in a

bifurcated jury trial, in the penalty-determination phase of the

trial the jury must select solely between a sentence of life

37
imprisonment without possibility of parole or one of death. The

Coward rule simply does not address that unique situation.

This unique situation arises from the fact that a defendant

sentenced to life imprisonment for capital murder, a class one

felony, is not subject to “geriatric parole.” See note 7,

supra. Accordingly, while we recognize that the limitations

placed upon the availability of parole by Code §§ 53.1-40.01 and

53.1-165.1 may call into question the continued viability of the

Coward rule in a non-capital felony case, as where, for example,

a defendant subject to a maximum term of years for a specific

crime would serve that entire sentence before being eligible for

geriatric parole, we emphasize that our decision today is

limited to the effect of Code § 53.1-165.1 on capital murder

prosecutions.

Undeniably, in the specific circumstance where the jury

must select between only two sentences: death and life

imprisonment without possibility of parole, the jury’s knowledge

that a life sentence is not subject to being reduced by parole

will cause no prejudice to the defendant, and may work to his

advantage. It is equally clear that without this knowledge the

jury may erroneously speculate on the possibility of parole and

38
impose the death sentence. 10 If the jury is instructed that the

defendant’s parole ineligibility is a matter of law and not one

of executive discretion, there is no possibility that the jury

would speculate as to whether “its sentence . . . imposed and

confirmed may be set aside or reduced by some other arm of the

State.” On the other hand, without this knowledge, there is a

very real possibility that the jury may erroneously speculate on

the continuing availability of parole. The real danger of this

possibility is amply demonstrated by the jury’s question in this

case in which the jurors posited the hypothetical situation that

Yarbrough might serve as few as twelve years of a life sentence.

In short, whereas in the circumstances presented in some

prior cases the availability of parole was not a proper matter

for jury speculation because it might lead to the unwarranted

imposition of harsher sentences, in the context of a capital

10
These conclusions arise not merely from reasoned logic,
but have been repeatedly confirmed through empirical research.
Indeed, that research was cited in Simmons, 512 U.S. at 172-74
(Souter, J. concurring), and serves as the basis for a plurality
of the United States Supreme Court continuing to urge expansion
of the Simmons rule. See, e.g., Brown v. Texas, 522 U.S. 940,
940-41 and n.2 (1997) (Stevens, J., dissenting) (four justices
dissenting from denial of certiorari). We note that in Brown,
Justice Stevens observed that “the likelihood that the issue [of
expanding the application of Simmons] will be resolved correctly
may increase if this Court allows other tribunals ‘to serve as
laboratories in which the issue receives further study before it
is addressed by this Court.’” Id. at 943 (citation from
footnote omitted).
39
murder trial a jury’s knowledge of the lack of availability of

parole is necessary to achieve the same policy goals articulated

in Coward and Hinton. Moreover, a jury fully informed on this

issue in this context is consistent with a fair trial both for

the defendant and the Commonwealth. Accordingly, we hold that

in the penalty-determination phase of a trial where the

defendant has been convicted of capital murder, in response to a

proffer of a proper instruction from the defendant prior to

submitting the issue of penalty-determination to the jury or

where the defendant asks for such an instruction following an

inquiry from the jury during deliberations, the trial court

shall instruct the jury that the words “imprisonment for life”

mean “imprisonment for life without possibility of parole.” 11

Because the trial court refused such an instruction, Yarbrough

was denied his right of having a fully informed jury determine

his sentence.

Finally, we must consider whether the comments concerning

the effect of a life sentence made by Yarbrough’s counsel during

closing argument render harmless the prejudice resulting from

11
We emphasize that the defendant must request the
instruction. The trial court is not required to give the
instruction sua sponte. Cf. Peterson v. Commonwealth, 225 Va.
289, 297, 302 S.E.2d 520, 525, cert. denied, 464 U.S. 865
(1983).

40
the trial court’s failure to instruct the jury on the issue of

Yarbrough’s parole-ineligible status. 12 The Commonwealth

contends that Yarbrough adequately addressed this issue to the

jury in his closing argument and, therefore, Yarbrough was not

prejudiced. 13 We disagree.

Yarbrough’s counsel argued that “[l]ife is life . . . [h]e

will spend a long time in prison” and made other similar

comments during the closing argument which implied that

Yarbrough would be ineligible for parole. Clearly, as indicated

by its subsequent inquiry to the trial court, the jury did not

accept counsel’s assertions as to the law. Accordingly, we

12
We have previously held that in consideration of the
United States Supreme Court’s decision in Caldwell v.
Mississippi, 472 U.S. 320 (1985), the Commonwealth is barred
from commenting on the power of the trial court and this Court
to set aside a jury’s sentence of death since such statements
might “lead[] a jury to believe the sentencing responsibility
lies ‘elsewhere’.” Frye v. Commonwealth, 231 Va. 370, 397, 345
S.E.2d 267, 285 (1986). Nothing in the view we express herein
should be interpreted as diminishing that holding.
13
In Williams v. Commonwealth, 234 Va. 168, 178-79, 360
S.E.2d 361, 367-68 (1987), cert. denied, 484 U.S. 1020 (1988),
relying on Hinton, we held that a parole-ineligible defendant
was not entitled to “argue the meaning of a life sentence”
because “the jury is not to be concerned with what may later
happen to a defendant sentenced to the penitentiary, [and] no
inference can be drawn or argued one way or the other as to
whether he will serve his full term.” Id. at 179, 360 S.E.2d at
368. In light of the view expressed by a plurality of justices
in Simmons, 512 U.S. at 178 (O’Connor, J., concurring), that the
issue of parole ineligibility may be addressed in argument, our
holding in Williams has clearly been called into question.
41
cannot say that Yarbrough was not prejudiced by the trial

court’s failure to respond to the jury’s question with the

appropriate instruction as Yarbrough had requested. Therefore,

the death sentence in this case will be vacated.

E. Sentence Review

In view of our ruling that the sentence of death will be

vacated on other grounds, we will not conduct the sentence

review provided by Code § 17.1-313(C) to determine whether that

sentence was imposed under the influence of passion, prejudice,

or any other arbitrary factors or whether the sentence is

excessive or disproportionate to the sentences imposed in

similar cases.

IV. CONCLUSION

For the reasons assigned, we will affirm Yarbrough’s

conviction of capital murder, vacate the death sentence, and

remand the case for a new penalty-determination phase. We will

affirm Yarbrough’s robbery conviction and sentence of life

imprisonment.

Record No. 990261 — Affirmed in part,
sentence vacated,
and case remanded.

Record No. 990262 — Affirmed.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
dissenting in part.
42
 I agree that Yarbrough's conviction of capital murder

should be affirmed. I disagree, however, that his death

sentence should be vacated and the case remanded for

redetermination of the capital murder penalty.

The majority holds that in the penalty phase of a trial

when the defendant has been convicted of capital murder, either

upon the defendant's tender of a proper instruction prior to

submitting the issue of penalty to the jury or upon the

defendant's request for such an instruction following an inquiry

from the jury during deliberations, the trial court shall

instruct the jury that the words "imprisonment for life" mean

"imprisonment for life without possibility of parole." This

viewpoint, based upon the idea of having a "jury fully

informed," even on matters not relevant for jury consideration,

amounts to an unwise change in the landscape for trial of

capital murder cases in Virginia when the crime meets the

vileness aggravating factor.

In Virginia, a jury's duty and responsibility, upon a

finding of guilt, is to impose such punishment as is authorized

by law and is just and proper under the evidence, considering

the crime and the defendant. All other matters, such as

probation and parole, are not relevant for jury consideration.

43
 The majority seeks to justify its viewpoint by relying upon

a purported distinction in the context of jury sentencing

between parole ineligibility and parole eligibility. The

majority discusses Hinton v. Commonwealth, 219 Va. 492, 496, 247

S.E.2d 704, 706 (1978); Jones v. Commonwealth, 194 Va. 273, 279,

72 S.E.2d 693, 696-97 (1952); and Coward v. Commonwealth, 164

Va. 639, 646, 178 S.E. 797, 799 (1935), admitting those cases

stand for the proposition that a jury should not be permitted to

speculate on the potential effect of parole, pardon, and

executive clemency. Yet, according to the majority, "the

present case presents the converse situation," to those cases.

Not so. When the real basis underlying the settled rule (until

today) preventing a jury from speculating is understood, the

present case does not involve a "converse situation."

"Under our system, the assessment of punishment is a

function of the judicial branch of government, while the

administration of such punishment is a responsibility of the

executive department. The aim of the rule followed in Virginia

is to preserve, as effectively as possible, the separation of

those functions during the process when the jury is fixing the

penalty, in full recognition of the fact that the average juror

is aware that some type of further consideration will usually be

44
given to the sentence imposed." Hinton, 219 Va. at 496, 247

S.E.2d at 706.

That statement is as applicable in 1999 as it was when

written in 1978 because, even with the abolition of parole

effective in 1995, "further consideration" by way of the

Governor's constitutional power of executive clemency remains an

avenue for relief from a mandatory life sentence for a capital

murder.

Parenthetically, the majority's "fairness" concerns focus

only upon the defendant, not the Commonwealth and her citizens.

If the majority is truly concerned about "fairness" in directing

that the jury be informed about the irrelevant matter of parole

ineligibility, then the prosecution should be entitled to have

the jury informed about the matter of executive clemency, in a

spirit of "fairness."

Simply put, this Court, as a matter of state law, has held

"[i]n an unbroken line of capital cases . . . that parole is not

a proper matter for consideration by a jury." King v.

Commonwealth, 243 Va. 353, 368, 416 S.E.2d 669, 677, cert.

denied, 506 U.S. 957 (1992). I would adhere to that principle

in this case, and would affirm Yarbrough's death sentence.

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