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. 
2

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 
3

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 
4

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. 
5

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. 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 penaltydetermination 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 
12

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. 
13

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 
14

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). 
15

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 
16

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. 
17

[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 
18

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 
19

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 
20

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 
21

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. 
22

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 
23

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. 
24

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 
25

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 
26

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). 
27

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 
28

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 paroleineligible 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 
29

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 paroleineligible 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. 
30

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). 
31

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 
32

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. 
33

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 
34

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. 
35

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. 
36

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 
37

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 
38

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 
39

 

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 

10These 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). 
40

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 

 

11We 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). 
41

 

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 

12We 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. 

13In 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. 
42

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. 
43

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. 
44

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 
45

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.