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.
45