Present: All the Justices 

ROBERT STACY YARBROUGH

v. Record No. 010161 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 September 14, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY 

Charles L. McCormick, III, Judge 

 In this appeal, we review the death sentence imposed on 

Robert Stacy Yarbrough after penalty phase proceedings conducted 

upon remand of this case to the trial court. 

I. PROCEEDINGS 

 The defendant was convicted in a jury trial of capital 

murder for the willful, deliberate, and premeditated killing of 

Cyril Hugh Hamby during the commission of robbery, in violation 

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

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

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

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

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

but remanded the case for a new penalty determination because 

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

instruction that he would be ineligible for parole if sentenced 

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

 In the penalty phase proceeding on remand, a different jury 

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

court sentenced the defendant in accordance with that verdict. 

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

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

error related to various rulings made by the trial court during 

the second penalty phase proceeding. 

II. PENALTY PHASE EVIDENCE 

 During the second penalty phase proceeding, the 

Commonwealth presented essentially the same evidence it had 

presented during the first penalty phase proceeding, including 

evidence that the defendant killed Hamby by stabbing him 

multiple times in the neck. The Commonwealth’s evidence also 

included testimony from Hamby’s family and friends concerning 

the impact of Hamby’s murder on them. Hamby’s two daughters, 

his daughter-in-law, and one of his granddaughters testified 

that their relationships with Hamby were close and were nurtured 

by his kindness and thoughtfulness, and that Hamby’s death has 

devastated their family. Two former neighbors and long-time 

customers of Hamby testified that Hamby had developed close 

friendships with them that demonstrated his warmth and 

generosity. 

 The Commonwealth also presented testimony from Dr. Marcella 

F. Fierro, the Chief Medical Examiner for the Commonwealth. Dr. 

Fierro testified that Hamby bled to death as a result of at 

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least ten separate knife wounds to his neck. She testified that 

the wounds penetrated to the junction between the neck and skull 

at several locations on the rear of Hamby’s neck, and that such 

wounds “are usually associated with trying to take the head 

off.” In addition, Dr. Fierro identified injuries from at least 

five separate blows to Hamby’s head that were consistent with 

beating and kicking. She testified that Hamby was alive when 

all these wounds were inflicted, and that it took as long as 15 

minutes for him to bleed to death. The Commonwealth presented 

additional testimony from Dominic Rainey, a witness to the 

killing, who testified that Hamby was begging the defendant to 

stop attacking him while the defendant was cutting the front and 

rear of Hamby's neck in a “sawing motion.” 

 Yarbrough presented testimony from his mother who stated 

that Yarbrough had lived with her his entire life except for two 

years as a teenager during which he lived with his grandmother. 

Yarbrough also presented testimony from his former prison 

counselor who testified that Yarbrough had not received any 

adverse disciplinary reports during his time in prison. 

III. JURY SELECTION ISSUE 

 During jury selection, the prosecutor used three peremptory 

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

The defendant asserted a challenge to the jury panel under 

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

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members of the venire were excluded from the jury panel because 

of their race. After the prosecutor explained his reasons for 

striking these three individuals, the trial court overruled the 

defendant’s Batson challenge. 

 The prosecutor gave the following explanation of his action 

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

[W]hen he first walked in the room his eyes were on the 

defendant. . . . He subsequently, gave us a great deal of 

concern. We had a problem hearing the last comment he made 

to [defense counsel]. The air conditioning was on. We 

didn’t hear what was said. . . . We [were] concerned about 

his sympathies lying with the defendant or [defense 

counsel], based upon the comment that he made to [defense 

counsel], and based upon his actions in court. . . . If we 

knew what comment he made, I might be able to answer the 

question to the Court in more detail. . . . 

 The prosecutor also stated that Woodson’s last “comment” 

concerned him because “[i]t was about race.” The comment in 

question took place during the following exchange: 

[DEFENSE COUNSEL]: [The defendant], obviously is black. 

[The victim] is white. I know you realize that. Do either 

of you think that would influence you in any way? Do you 

think you might reach a different decision if they were 

both white? 

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

[DEFENSE COUNSEL]: I know you do. 

 At defense counsel’s request, the court reporter related 

the substance of Woodson’s comment, and the prosecutor 

responded, 

We didn’t hear that. We believe[d] based upon [defense 

counsel’s] reaction to his comment that something else was 

said. That is why we did it, because we didn’t know. . . . 

We didn’t have that information at the time we made the 

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strikes, and we didn’t know what was said. We were back 

there blind. That is essentially why we made the strike. 

We didn’t know, but it raised a concern, because it was 

about race that it concerned me what it was. [sic] That is 

the basis for the strike. One of the primary reasons. 

 The prosecutor further stated: 

[O]ur concern [also] was as to his reaction to the 

defendant. He is a teacher who teaches children that are 

just a couple of years younger than [the defendant], and we 

did not know what that comment was at that time. . . . [I]n 

view of . . . [Mr. Woodson’s] relationship with people that 

age, and the reaction that I noted when he first came in. 

I made note of him in my notes that we would be concerned, 

and we would have a very difficult time to convince him to 

impose the death penalty on someone 19 years old. 

 On appeal, the defendant concedes that the prosecutor had 

valid race-neutral reasons for using peremptory strikes to 

remove two other African Americans from the jury panel, but 

contends that the prosecutor struck Melvin Woodson “on racial 

grounds.” The defendant argues that the prosecutor failed to 

present a valid race-neutral reason for making this peremptory 

strike because he stated to the court that he believed Woodson 

had made a “racial” comment. 

 In response, the Commonwealth contends that the facts do 

not raise an inference that the prosecutor struck Woodson from 

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

prosecutor’s explanation that Woodson exhibited an unusual 

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

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

Commonwealth contends that such concerns about a potential 

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juror’s demeanor and interest in a defendant provide a raceneutral explanation for exercising a peremptory strike. The 

Commonwealth also asserts that the prosecutor’s inability to 

hear Woodson's complete response concerning race provides a 

separate race-neutral explanation for striking Woodson from the 

panel. 

 In considering this argument, we review the principles that 

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

Supreme Court stated the requirements for establishing a prima 

facie case of purposeful discrimination in the selection of a 

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

prima facie case, 

the defendant first must show that he is a member of a 

cognizable racial group . . . and that the prosecutor has 

exercised peremptory challenges to remove from the venire 

members of the defendant’s race. Second, the defendant is 

entitled to rely on the fact, as to which there can be no 

dispute, that peremptory challenges constitute a jury 

selection practice that permits “those to discriminate who 

are of a mind to discriminate.” . . . Finally, the 

defendant must show that these facts and any other relevant 

circumstances raise an inference that the prosecutor used 

that practice to exclude the veniremen from the petit jury 

on account of their race. 

Id.

 The defendant has the burden of producing a record that 

supports a prima facie case of purposeful discrimination. 

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

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

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

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

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

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

excluded African Americans by using peremptory strikes does not 

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

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

97. 

 A defendant also must identify facts and circumstances that 

raise an inference that potential jurors were excluded based on 

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

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

defendant makes a prima facie showing that the prosecutor has 

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

to the prosecution to articulate race-neutral reasons for that 

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

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

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

 A trial court’s determination whether the reason given for 

exercising a peremptory strike is race-neutral is entitled to 

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

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

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

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

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

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

 Assuming, without deciding, that the defendant established 

a prima facie case of purposeful discrimination under Batson, we 

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

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

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

concerning Woodson’s profession as a teacher and the 

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

the question concerning racial bias. The trial court’s 

determination that these explanations were race-neutral 

necessarily was based on the court’s evaluation of the 

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

support a conclusion that the court’s determination was clearly 

erroneous, and we observe that the trial judge himself indicated 

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

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

the prosecutor’s explanations for striking Woodson were raceneutral. 

IV. MISTRIAL MOTION 

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

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

improper remarks made by the prosecutor in his rebuttal to 

defense counsel’s closing argument. Defense counsel had argued 

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that if the defendant were sentenced to life imprisonment, he 

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

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

rebuttal, the prosecutor stated: 

[W]e used to have parole eligibility, and then a few years 

ago the legislature decided to abolish that. . . . What 

[defense counsel] is asking you to do is take a pair of 

dice and roll them and hope that the law doesn’t change 

again. 

 Defense counsel objected to this remark, stating that it 

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

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

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

that the jury disregard that.” 

 The prosecutor continued his closing argument, stating that 

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

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

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

did not request a mistrial during the penalty phase trial based 

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

 Nearly six months after the penalty phase trial, but prior 

to sentencing, the defendant filed a motion for a mistrial 

asserting that the prosecutor’s remarks about potential changes 

in the law of parole eligibility were so inflammatory that the 

trial court’s cautionary instruction was insufficient. The 

defendant contended that the prosecutor’s remarks generally 

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

future dangerousness was not at issue. At the sentencing 

hearing, the trial court denied the mistrial motion, stating 

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

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

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

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

[c]ourt had given them.” 

 On appeal, the defendant argues that the trial court erred 

in denying his mistrial motion because the prosecutor’s remarks 

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

defendant also contends that the court’s cautionary instruction 

was inadequate because the court did not instruct the jury to 

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

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

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

merits of these arguments. 

 A motion for a mistrial based on allegedly improper 

argument of counsel is untimely unless the motion is stated when 

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

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

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

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

curative instruction, was made several months after the jury 

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delivered its verdict. Since this mistrial motion was untimely, 

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

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

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

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

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

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

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

(1990). 

V. SENTENCE REVIEW 

Passion and Prejudice

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

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

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

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

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

The defendant argues that the death sentence was based on 

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

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

probability of prejudice and emotion taking their toll on the 

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

highly improper argument concerning the possibility of [the 

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

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

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

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

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

no merit in these arguments. 

 The trial court gave a prompt, explicit curative 

instruction when the defendant objected to the prosecutor’s 

argument. Unless the record clearly shows that a jury has 

disregarded such a curative instruction, we will presume that 

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

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

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

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

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

disregarded the court’s instruction or that its verdict was 

based on any consideration other than the evidence presented. 

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

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

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

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

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

or any other arbitrary factor. 

Excessiveness and Proportionality

 The defendant argues that the trial court erred in 

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

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disproportionate to the penalty imposed in similar cases. The 

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

with virtually every case in which the Court has found the 

evidence sufficient to support the vileness predicate.” We 

disagree. 

 First, the death penalty statutes do not require the trial 

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

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

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

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

aside the sentence of death and impose a sentence of 

imprisonment for life.” This provision permits the capital 

murder defendant the same opportunity as any other criminal 

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

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

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

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

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

exercise its discretionary authority under the statute to impose 

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

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

declining to change the sentence set by the jury. 

 In conducting this Court’s proportionality review, we must 

determine whether other sentencing bodies in this jurisdiction 

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generally impose the death penalty for comparable or similar 

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

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

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

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

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

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

murder cases, including those in which a sentence of life 

imprisonment was imposed. We also have examined the records of 

all capital cases reviewed by this Court pursuant to Code 

§ 17.1-313(E). 

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

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

committing the offense for which he stands charged was 

outrageously or wantonly vile, horrible or inhuman in that it 

involved torture, depravity of mind or an aggravated battery to 

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

this predicate, we give particular consideration to other 

capital murder cases in which the death penalty was obtained 

under the same predicate. 

 Considering both the crime and the defendant, we conclude 

that the death sentence in this case is not excessive or 

disproportionate to penalties imposed by other sentencing bodies 

in the Commonwealth for comparable or similar crimes. As stated 

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above, after robbing Cyril Hamby, the defendant repeatedly cut 

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

pocket knife, while Hamby was conscious and begging the 

defendant to stop attacking him. Hamby sustained a minimum of 

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

usually associated with an attempted decapitation. 

 The vileness of this offense, as shown by the aggravated 

battery the defendant inflicted on Hamby and the depravity of 

mind required for the execution of this particular crime, is 

comparable to the vileness we have considered in other cases. 

We also observe that juries in this Commonwealth, with some 

exceptions, generally have imposed the death sentence for 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VI. CONCLUSION 

 We find no reversible error in the judgment of the trial 

court. Having reviewed the defendant’s death sentence pursuant 

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

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

Affirmed.

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