Executed June 25, 2008 at 9:28 p.m. by Lethal Injection in Virginia
9th murderer executed in U.S. in 2008
1108th murderer executed in U.S. since 1976
2nd murderer executed in Virginia in 2008
100th murderer executed in Virginia since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Robert Stacy Yarbrough
B / M / 18 - 30
||Cyril Hugh Hamby
W / M / 77
Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602 (Va. 1999) (Direct Appeal - Reversed).
Yarbrough v. Johnson, 262 Va. 388, 551 S.E.2d 306 (Va. 2001) (Direct Appeal - Affirmed).
Yarbrough v. Warden of Sussex I State Prison, 269 Va. 184, 609 S.E.2d 30 (Va. 2005) (State Habeas).
Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. 2008) (Habeas).
Fried chicken tenders and cheese pizza.
"Tell my kids I love them, and let's get it over with. Make people happy. Help celebrate the murder."
"Virginia executes its 100th inmate; Yarbrough killed Mecklenburg store owner during 1997 robbery," by Frank Green. (June 26, 2008)
JARRATT -- Virginia's 100th execution in modern times was carried out last night as Robert Stacy Yarbrough died by injection for the 1997 slaying of a country store owner. Yarbrough, 30, was pronounced dead at the Greensville Correctional Center at 9:28 p.m. Asked if he had any last words, he said, "Tell my kids I love them. Let's get it over with. Make people happy," according to a prison spokesman.
He was sentenced to die for the May 8, 1997, capital murder of Cyril H. Hamby, 77. Hamby was tied up and nearly decapitated with a knife during a robbery of the small Mecklenburg County business he operated for more than 50 years.
Yarbrough appeared calm and looked down toward the gurney as he was led into the execution chamber. He seemed to drift into sleep as the first of three chemicals were administered. The execution took longer than normal. The curtain was closed at 9 p.m., blocking the view of witnesses, as the IV lines were inserted into his arms, a procedure that is usually performed in just a few minutes. Virginia Department of Corrections spokesman Larry Traylor said there was difficulty placing one of the IV lines. The curtain reopened at 9:17 p.m. and Yarbrough gave his last statement, and then the signal was given to start the chemicals. According to court papers, it takes an average of 4˝ minutes for an inmate to die after the chemicals start flowing. But in Yarbrough's case, the process appeared to take about 10 minutes.
Virginia is the second state to execute 100 people since the U.S. Supreme Court allowed the death penalty to resume in 1976. Texas, with 406 executions, leads the country. The two states account for nearly half of all executions carried out across the U.S. since 1976. Virginia's 100th was marked by about 30 protesters holding a vigil in a field in front of the rural prison last night. At 9 p.m., the scheduled execution time, the protesters took turns ringing a bell for each person executed in Virginia.
Anne Gray, a Richmond Quaker, said she comes every time protesters try to fill the field in front of the prison. She was last there about two years ago. She said she doesn't know why more people didn't come last night. "It's not as many as I expected, and it's not as many as we've had before, but more than we usually have."
The first person executed in Virginia after the death penalty resumed was Frank J. Coppola, a former altar boy and Portsmouth police officer who beat a bound woman to death during a 1978 burglary of her Newport News home. Coppola was pronounced dead Aug. 10, 1982, at 11:27 p.m., ushering in the state's modern era of capital punishment. Since Jan. 1, 1995, when lethal injection became an option, Yarbrough was the 72nd condemned man in Virginia to have selected injection. Just four have chosen the electric chair.
Yarbrough was 18 when he and a friend, Dominic Rainey, 17, robbed Hamby's store, which was near their homes. After tying up Hamby and kicking him in the head, Yarbrough used a pocketknife to cut around Hamby's neck. The two fled with cash, beer, wine and cigarettes. They were caught days later. Rainey was charged with first degree murder in exchange for testifying against Yarbrough. In addition to Rainey's testimony, forensic evidence, including DNA, linked Yarbrough to the crime.
His lawyers contended that a black juror was improperly stricken from the second jury that sentenced Yarbrough to death and that his trial lawyer failed to request the help of a DNA expert or do an adequate job in researching Yarbrough's troubled childhood. A clemency petition was filed with Gov. Timothy M. Kaine and an appeal for a stay of execution with the U.S. Supreme Court. The justices denied the appeal yesterday evening. Then Kaine declined to intervene, saying he found no compelling reason to set aside the sentence.
Traylor said that immediate family members of Hamby witnessed the execution. Authorities said that Yarbrough visited with his mother and great aunt for two hours yesterday morning.
Virginia had not executed anyone since 2006 until last month, when Kevin Green died by injection for a 1998 murder in Brunswick County.
Virginia Attorney General - Press Release.
For Release: June 25, 2008
Contact: J. Tucker Martin or David Clementson
Email: firstname.lastname@example.org or email@example.com
Statement of Attorney General Bob McDonnell on Execution of Robert Yarbrough
“Robert Stacy Yarbrough was executed tonight for the 1997 murder of 77-year old Cyril Hugh Hamby. On the evening of May 8, 1997 Yarbrough and an accomplice robbed Mr. Hamby’s convenience store on U.S. Route 1 in Mecklenburg County. Yarbrough then brutally murdered Mr. Hamby. It was a gruesome crime that took the life of an innocent man. Cyril Hamby was known for his warmth and generosity. His murder left his family devastated.
“The jury verdict of guilt and sentence of death in this case have been reviewed and upheld by the trial court, U.S. District Court, U.S. Court of Appeals, Virginia Supreme Court and the Supreme Court of the United States. Governor Kaine has declined to intervene. Tonight justice has been served. Our thoughts and prayers remain with Mr. Hamby’s children, grandchildren, great-grandchildren and all his friends and family.”
"Va. Inmate Executed For Killing Store Clerk; Governor Declines to Halt Lethal Injection," by Jerry Markon. (Thursday, June 26, 2008)
Convicted killer Robert Stacy Yarbrough was put to death last night for nearly beheading a convenience store clerk in 1997. He was the 100th inmate executed in Virginia since the U.S. Supreme Court reinstated capital punishment in 1976.
Yarbrough, 30, died by lethal injection at the Greensville Correctional Center in Jarratt. He was pronounced dead at 9:28 p.m. His last words were, "Tell my kids I love them, and let's get it over with," said Larry Traylor, a spokesman for the Virginia Department of Corrections. Traylor said the execution was briefly delayed because it took more time than usual to get one of the intravenous lines into Yarbrough's arm.
Convicted killer Kevin Green was executed last month after an unusual hour-long delay, as his attorneys tried to win a reprieve. This month, Gov. Timothy M. Kaine (D) stopped the execution of triple murderer Percy L. Walton and commuted his sentence to life in prison without parole, saying that Walton is mentally incompetent.
Kaine declined yesterday to block Yarbrough's execution, and the U.S. Supreme Court refused to intervene, although Justices John Paul Stevens and Ruth Bader Ginsburg would have granted a stay, the court said. In a statement, Kaine said: "The trial, verdict, and sentence have been reviewed in detail by various state and federal courts, including the Supreme Court of Virginia, a United States Magistrate, a United States District Court Judge, and the United States Court of Appeals for the Fourth Circuit. The Supreme Court of the United States also has denied Yarbrough's petition for review." Kaine continued: "Having carefully reviewed the Petition for Clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury, and then imposed and affirmed by the courts. Accordingly, I decline to intervene."
The execution has added to the debate on capital punishment nationally and in Virginia. Only Texas, with 406 executions, has put more inmates to death since 1976.
Sue Gunawardena-Vaughn, director of Amnesty International USA's campaign to abolish the death penalty, said Yarbrough's execution "marks a grim milestone for the state of Virginia. As evidence mounts that this country's death penalty system is flawed beyond repair, Virginia has become a virtual racetrack for capital punishment."
After Yarbrough died, state Attorney General Robert F. McDonnell (R) said: "Tonight, justice has been served. Our thoughts and prayers remain with [the victim's] children, grandchildren, great-grandchildren and all his friends and family."
Attorneys for Yarbrough declined to comment. They had said that the execution should have been stopped because Yarbrough's trial lawyers should have challenged the DNA evidence used to convict him and should have presented evidence that he was neglected as a child.
Yarbrough was convicted in the 1997 slaying of Cyril Hugh Hamby, 77, in Mecklenburg County. Yarbrough and a former high school classmate tied Hamby's hands behind his back with an extension cord, and Yarbrough cut Hamby's neck in a sawing motion at least 10 times as Hamby pleaded for him to stop. Hamby bled to death, and the state medical examiner said his wounds were consistent with an attempted beheading.
"Virginia executes 100th inmate since 1976 ruling." (Thu Jun 26, 2008 3:27am BST)
WASHINGTON (Reuters) - Virginia put a convicted murderer to death by lethal injection on Wednesday, the 100th person executed by the state since the U.S. Supreme Court reinstated capital punishment in 1976. Robert Stacy Yarbrough, 30, who was convicted and sentenced to death for the 1997 killing of a store owner during a robbery, was put to death shortly before 9:30 p.m. EDT at the Greensville Correctional Center in Jarratt, Virginia.
With 100 executions since the 1976 ruling, Virginia ranks second in the nation behind Texas, which has 406, according to the Death Penalty Information Center, a group opposed to capital punishment. Oklahoma is third, with 86 executions. The Supreme Court declared the death penalty unconstitutional in 1972, but then reinstated capital punishment laws four years later.
Yarbrough's execution occurred after Gov. Timothy Kaine, a Democrat, refused to grant him clemency and the U.S. Supreme Court rejected his request for a stay of execution and turned down his appeal. "Tell my kids I love them and let's get it over with. Make people happy, help celebrate the murder," Yarbrough said in a final statement issued by Virginia Corrections Department spokesman Larry Traylor.
Of the Supreme Court's nine members, only justices John Paul Stevens and Ruth Bader Ginsburg said they would grant the stay of execution. Yarbrough's appeal argued that his lawyer should have challenged DNA evidence used to convict him, that the prosecutor unfairly removed black potential jurors and that his lawyer provided ineffective assistance by failing to present evidence that might have resulted in a lesser sentence.
Yarbrough was convicted and sentenced to death for the robbery and murder of Cyril Hamby, a 77-year-old Mecklenburg County store owner. Yarbrough nearly decapitated his victim, cutting Hamby's neck with a pocket knife during the May 8, 1997 robbery with his friend. Yarbrough became the second Virginia death row inmate and the ninth person executed since the Supreme Court on April 16 upheld the commonly used lethal injection method, ending an unofficial moratorium in effect since late September.
Other states to have carried out executions since the ruling include Georgia, Mississippi, Texas, Oklahoma and South Carolina.
The Daily Press"Virginia set to execute 100th inmate," by Dena Potter. (June 22, 2008)
RICHMOND, Va. - The nation's second busiest death chamber is preparing for a grim milestone. Unless the courts or Gov. Timothy M. Kaine intervene, Robert Stacy Yarbrough, 30, will die by lethal injection Wednesday at the Greensville Correctional Centert, becoming the 100th person executed in Virginia since capital punishment was reinstated three decades ago. Virginia ranks second in modern-era executions to Texas, which has had 406. But a decreasing number of death sentences, a dwindling death row and the state's changing political climate could allow others to surpass Virginia.
Oklahoma isn't far behind with 86 executions. Missouri and Florida also have put more than 60 inmates to death. "I think five years from now Virginia won't be in that position," said Richard Dieter, executive director of the Death Penalty Information Center. "It will still have the death penalty and it will still be executing people, but one or two a year perhaps."
Five executions have been scheduled over two months in Virginia since a moratorium was lifted after the U.S. Supreme Court found that lethal injection was constitutional. No executions in Virginia were held in 2007, and four were carried out in 2006. Virginia was home to the first recorded execution in the New World, when in 1608 Captain George Kendall was shot at Jamestown for being a spy for Spain. The state led the nation in executions before the U.S. Supreme Court declared the death penalty unconstitutional in 1972. Capital punishment was reinstated four years later.
Virginia's death row pales in comparison to many other states. Including Yarbrough, there are 17 inmates on death row--16 men and one woman. California leads the nation with more than 670 death row inmates, Florida has 388 and Texas 367. Pennsylvania and Alabama also have more than 200 inmates awaiting execution, but Pennsylvania has only executed three inmates since 1976.
Virginia also is not sending as many criminals to death row as it used to. From 1990 to 2000, the state averaged six death sentences each year. Virginia abolished parole in 1994, but Dieter said it took juries a while to trust that someone sentenced to life wouldn't be set free in 20 years. From 2001 through 2006, Virginia averaged three death sentences each year.
Even Sept. 11 conspirator Zacarias Moussaoui was spared the death penalty in 2006 in increasingly liberal northern Virginia, the state's most populous area. The region has helped several Democrats get elected in recent years, including Kaine, who as a Roman Catholic is personally opposed to the death penalty.
Virginia also executes inmates quicker than most states. Since 1991, Virginia inmates have averaged a little over seven years from sentencing to death. Nationally, death row inmates typically spend more than a decade awaiting execution, and some condemned prisoners have been on death row for well over 20 years.
Yarbrough originally was sentenced to death in 1998 for nearly decapitating store owner Cyril Hugh Hamby, 77, while he and high school classmate Dominic Jackson Rainey robbed his store. The Virginia Supreme Court demanded a second sentencing hearing because the judge failed to tell the jury that Yarbrough would not be eligible for parole if sentenced to life in prison. He was sentenced to death by a second jury in 2000.
Rainey, who was 17 at the time, testified against Yarbrough and received 25 years in prison instead of the death penalty. Yarbrough's lawyers have asked the U.S. Supreme Court and Kaine to spare his life. "Stacy Yarbrough to this day professes his innocence to this murder," Bilisoly said.
Virginians for Alternatives to the Death Penalty urged Kaine to block the state's 100th execution. "Let's stop the killing before Virginia hits this ugly milestone," said Betty Gallagher, a group spokeswoman. The group will hold a vigil outside the prison Wednesday.
Virginians for Alternatives to the Death Penalty
Robert Stacy Yarbrough
Date of Birth: June 1, 1978
Entered the Row: Jan. 20, 1999
Conviction: Capital murder and robbery
Virginia DOC Inmate Number: 264973
-------------------------------------------------------------------------------- On June 26, 1998, a 10-woman, two-man jury in Mecklenburg County convicted Robert Yarbrough of capital murder and robbery in the slaying of Cyril Hugh Hamby, 77, after deliberating for less than three hours. During the penalty phase, the jury recommended that Yarbrough be executed after deliberating less than one hour.[i] Earlier, prosecutors removed three African-Americans from the jury pool through peremptory strikes.[ii]
At trial, the jury heard evidence that armed with a shotgun on the evening of May 8, 1997, Robert Yarbrough, 18, and Dominic Rainey, 17, entered Hamby’s Store and tied up the owner. Yarbrough then demanded that Hamby tell him where he kept his guns and after Hamby insisted that he did not own any guns, Yarbrough kicked him in the head and upper arm and took cash from the register. Yarbrough again asked Hamby where he kept his guns and Hamby continued to maintain that he did not own any guns. Yarbrough then took out a knife from his pocket and began to slice Hamby’s neck. Before leaving the store, Yarbrough and Rainey took beer, wine and cigarettes. Hamby subsequently bled to death. Several days later, police discovered Yarbrough’s blood-stained clothing and arrested him for the Hamby murder. Rainey was the principal witness against Yarbrough.[iii]
The Supreme Court of Virginia overturned the sentence on Sept. 17, 1999 and remanded the case for a new sentencing hearing. During the penalty phase, Judge Charles L. McCormick III had erred when he refused to respond to a question from the panel about whether life in prison meant life in prison without parole. The case went back to Mecklenburg County Circuit Court for a new sentencing hearing. A different jury sentenced Yarbrough to death again on Dec. 8, 2000. McCormick once again affirmed the jury’s recommendation and sentenced Yarbrough to die.
The Virginia Supreme Court affirmed the death sentence on Sept. 14, 2001 and on May 13, 2002, the U.S. Supreme Court refused to review the case.[iv]
Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602 (Va. 1999) (Direct Appeal - Reversed).
Defendant was convicted in the Circuit Court, Mecklenburg County, Charles L. McCormick, III, J., of capital murder and robbery, and was sentenced to death. On appeal as of right from capital murder conviction, and on transfer from the Court of Appeals of appeal from robbery conviction, the Supreme Court, Koontz, J., held that: (1) as matter of first impression, circuit court had discretion to appoint as special assistant prosecutor an assistant Commonwealth's attorney from another jurisdiction; (2) capital murder conviction was supported by sufficient evidence; (3) finding of aggravating factor of vileness was supported by sufficient evidence; (4) as matter of first impression, defendant was entitled to have jury instructed regarding his parole-ineligible status; and (5) circuit court's error in not instructing jury on capital murder defendant's parole-ineligible status was not harmless. Affirmed in part, sentence vacated, and case remanded. Compton, J., filed dissenting opinion in which Carrico, C.J., joined.
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.FN1
FN1. 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.
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, 117 S.Ct. 972, 136 L.Ed.2d 856 (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, 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 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 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.
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.
* * *
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, 114 S.Ct. 2187 (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, 117 S.Ct. 365, 136 L.Ed.2d 256 (1996). Thus, the Commonwealth asserts that we have declined to extend the application of Simmons to a 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.FN5 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 hold that the trial court erred in failing to grant the instruction requested by Yarbrough.
FN5. 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). 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 Supreme Court established a minimum level of protection applicable based upon a specific factual scenario.FN6 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, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983); see also Simmons, 512 U.S. at 183, 114 S.Ct. 2187 (Scalia, J., dissenting).
FN6. 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, 114 S.Ct. 2187 (Souter, J., concurring). 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.FN7 Thus, 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 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.FN8 Compare Wright v. Commonwealth, 248 Va. 485, 487, 450 S.E.2d 361, 363 (1994), cert. denied, 514 U.S. 1085, 115 S.Ct. 1800, 131 L.Ed.2d 726 (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.
FN7. 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 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, 527 U.S. 1038, 119 S.Ct. 2399, 144 L.Ed.2d 798 (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, 525 U.S. 1046, 119 S.Ct. 602, 142 L.Ed.2d 544 (1998); Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522, cert. granted, 525 U.S. 981, 119 S.Ct. 443, 142 L.Ed.2d 398 (1998), judgment rev'd on other grounds, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d 898, cert. denied, 522 U.S. 1018, 118 S.Ct. 608, 139 L.Ed.2d 495 (1997). In Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d 538, cert. denied, 525 U.S. 1067, 119 S.Ct. 796, 142 L.Ed.2d 658 (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.
FN8. 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, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (holding that Simmons does not require the trial court to “educate” potential jurors on effect of parole ineligibility during voir dire).
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). 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.FN9 See, e.g., 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); Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 799 (1935).
FN9. 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.3d 832 (1967); Annotation, Procedure to be Followed Where Jury Requests Information as to Possibility of Pardon or Parole from Sentence Imposed, 35 A.L.R.2d 769 (1954). This division of authority, however, merely lends credence to the views expressed in Ramos and by Justice Scalia in Simmons, supra. 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 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 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. 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.
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 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, 100 S.Ct. 1666, 64 L.Ed.2d 249 (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 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 impose the death sentence.FN10 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.
FN10. 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, 114 S.Ct. 2187 (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, 118 S.Ct. 355, 139 L.Ed.2d 276 (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).  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 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.” FN11 Because the trial court refused such an instruction, Yarbrough was denied his right of having a fully informed jury determine his sentence.
FN11. 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, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983).  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 the trial court's failure to instruct the jury on the issue of Yarbrough's parole-ineligible status. FN12 The Commonwealth contends that Yarbrough adequately addressed this issue to the jury in his closing argument and, therefore, Yarbrough was not prejudiced.FN13 We disagree.
FN12. We have previously held that in consideration of the United States Supreme Court's decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (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.
FN13. In Williams v. Commonwealth, 234 Va. 168, 178-79, 360 S.E.2d 361, 367-68 (1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (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, 114 S.Ct. 2187 (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. 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 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.
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.
COMPTON, Justice, with whom Chief Justice CARRICO joins, dissenting in part.
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.
Yarbrough v. Johnson, 262 Va. 388, 551 S.E.2d 306 (Va. 2001) (Direct Appeal - Affirmed).
Defendant was convicted in a jury trial in the Circuit Court, Mecklenburg County, Charles L. McCormick, III, J., of capital murder during commission of robbery, and was sentenced to death. Defendant appealed. After conviction was affirmed, but case was remanded for new penalty hearing, 258 Va. 347, 519 S.E.2d 602, the Circuit Court again sentenced defendant to death. Defendant appealed. The Supreme Court, Keenan, J., held that: (1) peremptory strike of African-American prospective juror who was a teacher did not violate Batson; (2) motion for mistrial based on prosecutor's allegedly improper closing comments was untimely; (3) death sentence was not imposed under influence of passion, prejudice, or any other arbitrary factor; and (4) death sentence was not excessive or disproportionate. Affirmed.
Yarbrough v. Warden of Sussex I State Prison, 269 Va. 184, 609 S.E.2d 30 (Va. 2005) (State Habeas).
Background: Defendant was convicted in the Circuit Court, Mecklenburg County, Charles L. McCormick, III, J., of capital murder during commission of robbery, and he was sentenced to death. Defendant appealed. The Supreme Court, 258 Va. 347, 519 S.E.2d 602, affirmed conviction but vacated death sentence and remanded for new penalty hearing. On remand, the Circuit Court again sentenced defendant to death. Defendant appealed, and the Supreme Court, 262 Va. 388, 551 S.E.2d 306, affirmed. Defendant petitioned for writ of habeas corpus. After initially refusing petition, the Supreme Court granted defendant's petition for rehearing and ordered the Circuit Court to conduct evidentiary hearing on defendant's claim of ineffective assistance of counsel. The Circuit Court did so and submitted report.
Holding: The Supreme Court, Keenan, J., held that defense counsel did not render ineffective assistance at second penalty hearing by failing to investigate and present certain mitigation evidence. Petition for writ of habeas corpus dismissed.
Yarbrough v. Johnson, 520 F.3d 329 (4th Cir. 2008) (Habeas).
Background: Following affirmance of capital murder and robbery convictions, and death sentence, 262 Va. 388, 551 S.E.2d 306, petitioner sought federal habeas relief. The United States District Court for the Eastern District of Virginia, Jerome B. Friedman, J., 490 F.Supp.2d 694, denied the petition. Petitioner appealed.
Holdings: The Court of Appeals, Niemeyer, Circuit Judge, held that:
(1) defense counsel's failure to seek funds to hire DNA expert during guilt phase of capital murder prosecution was not deficient;
(2) failure to seek funds to hire DNA expert did not prejudice defendant; and
(3) Virginia did not unreasonably apply federal law in determining that petitioner's trial counsel did not provide ineffective assistance. Affirmed.