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
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
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.
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
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
* * *
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,
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
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
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
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 §
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
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
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
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
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.
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
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.