Yarbrough v. Com.

• Decision Date: 17 September 1999
• Docket Number: Record No. 990261,Record No. 990262.
• Citation: Yarbrough v. Com., 519 S.E.2d 602, 258 Va. 347 (1999)
• Court: Virginia Supreme Court
• Parties: Robert Stacy YARBROUGH v. COMMONWEALTH of Virginia.

519 S.E.2d 602

258 Va. 347

Robert Stacy YARBROUGH v.COMMONWEALTH of Virginia.

Record Nos. 990261, 990262.

Supreme Court of Virginia.

September 17, 1999.

Buddy A. Ward, Public Defender, for appellant.

Robert Q. Harris, Assistant Attorney General(Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

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, 117 S.Ct. 972, 136 L.Ed.2d 856(1997).Yarbrough and Dominic Jackson Rainey had attended high school together in Mecklenburg County prior to Rainey's moving to Richmond with his mother.While on a subsequent visit to see his grandfather in Mecklenburg County, Rainey renewed his acquaintance with Yarbrough.On May 7, 1997, Yarbrough told Rainey of his plan to rob Cyril Hugh Hamby, the 77-year-old owner of Hamby's Store on U.S. Route 1 in Mecklenburg County.The following evening, Yarbrough went to Rainey's grandfather's house and told Rainey that "he was ready to go rob Mr. Hamby."

Yarbrough and Rainey were seen walking along U.S. Route 1 toward Hamby's Store between 9:30 and 10:30 p.m. on May 8, 1997.Yarbrough was armed with a shotgun.The two men waited at a picnic table across the road until there were no customers in the store.Yarbrough hid the shotgun under his coat and the two men entered the store.At Yarbrough's direction, Rainey locked the front door.

Yarbrough pointed the shotgun at Hamby and ordered him to come out from behind the store's counter.Yarbrough and Rainey took Hamby to the living quarters at the rear of the store where they found an electrical extension cord and string.Yarbrough brought Hamby back into the public area of the store, forced him to lie on the floor in an aisle, and tied Hamby's hands behind his back with the extension cord and string.

Yarbrough went to the store's electrical circuit box and turned off the outside lights.He then demanded that Hamby reveal where guns were hidden in the store.When Hamby denied having any guns, Yarbrough kicked Hamby in the head and upper left arm.Yarbrough then forced the store's cash register open by dropping it on the floor and took the money that was in the register.

Yarbrough returned to where Hamby was lying and, pointing the shotgun at him, again demanded to be told where guns were hidden in the store.When Hamby again denied having any guns, Yarbrough put down the shotgun, took a knife from his pocket, and began to cut Hamby's neck with a "sawing motion" as Hamby pleaded with Yarbrough to stop.After cutting Hamby's neck at least ten times, Yarbrough rifled through Hamby's clothing and took his wallet.Yarbrough and Rainey took beer, wine, and cigarettes from the store and left by the back door.Yarbrough gave Rainey one hundred dollars in small bills and kept a larger sum for himself.

Yarbrough and Rainey returned to Rainey's grandfather's house to change clothes and then went to the home of Conrad Dortch to buy marijuana.Dortch was not at home, so Yarbrough and Rainey waited on the porch and drank the wine taken during the robbery.Dortch arrived home at approximately 12:45 a.m. and sold Yarbrough a marijuana cigarette for $10.According to Rainey, Yarbrough was "flashing" his money.When Yarbrough and Rainey left Dortch's home, Rainey threw an empty wine bottle into the yard.

Yarbrough and Rainey returned to Rainey's grandfather's house where they spent the remainder of the night.Before leaving in the morning, Yarbrough threw his tennis shoes, which were stained with Hamby's blood, into a trash barrel behind the house.

Hamby's body was discovered at approximately 8:20 a.m. on May 9, 1997 by Betsy Russell, a former employee of Hamby's who had been informed by a neighbor that "there was something wrong at the store."A subsequent autopsy revealed that Hamby had bled to death as a result of deep, penetrating wounds to his neck.According to a state medical examiner, Hamby's wounds were "entirely consistent" with an attempted beheading, however, because no major arteries were cut, it would have taken at least several minutes for Hamby to have bled to death.Hamby also had several blunt force injuries to his head and upper left arm consistent with his having been kicked with moderate force.

On May 10, 1997, Dortch contacted the Virginia State Police and told them of his encounter with Yarbrough and Rainey.Police later recovered a wine bottle and label from Dortch's yard.The wine bottle was of a brand that was sold at Hamby's store.

On May 14, 1997, police executed a search warrant at Yarbrough's home and recovered bloodstained clothing and a three-bladed "Uncle Henry" pocketknife.Police also recovered Yarbrough's tennis shoes from the trash barrel behind Rainey's grandfather's house.DNA testing of the bloodstains found on Yarbrough's shoes and clothing established a positive match with Hamby's blood.DNA tests of blood traces found on the "Uncle Henry" knife established that a mixture of Hamby's and Yarbrough's DNA was present on the blade of the knife.

Forensic analysis of the bloodstain patterns on Yarbrough's clothing supported the conclusion that they were consistent with a spray of blood resulting from trauma.An expert testified that the bloodstains on the lower front of Yarbrough's shirt were made "in close proximity to the trauma that released the blood."Several shoeprints found in the store were identified as having been made by Yarbrough's shoes, including those near the circuit box, behind the counter, and in the bloodstains near Hamby's head.Police also recovered Rainey's boots and identified prints found near Hamby's feet and in the living quarters as having been made by these boots.

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 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, 1998nunc 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 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 testimony...