Bell v. Commonwealth

Present: All the Justices

EDWARD NATHANIEL BELL

v. Record No. 011777 OPINION BY JUSTICE CYNTHIA D. KINSER
JUNE 7, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
Dennis L. Hupp, Judge

A jury convicted Edward Nathaniel Bell of the 1999

capital murder of Sergeant Ricky Lee Timbrook, a law

enforcement officer with the Winchester Police Department,

when such killing was for the purpose of interfering with

the performance of Sergeant Timbrook’s official duties. 1 At

the conclusion of the penalty phase of a bifurcated trial,

the jury recommended that Bell be sentenced to death on the

capital murder conviction, finding that there is a

probability that he would commit criminal acts of violence

in the future that would constitute a continuing serious

threat to society. See Code § 19.2-264.2. After reviewing

a post-sentence report prepared pursuant to Code § 19.2-

264.5, the circuit court sentenced Bell in accordance with

the jury verdict.

1
Bell was also convicted of the use of a firearm in
the commission of murder, possession of cocaine with intent
to distribute, and possession of a firearm while possessing
cocaine. He was sentenced to imprisonment for terms of 3
years, 10 years, and 5 years, respectively, for these
convictions, which are not the subject of this appeal.
 Bell now appeals that conviction and his sentence of

death. After considering the issues raised by Bell and

conducting our mandated review pursuant to Code § 17.1-

313(C), we find no error in the judgment of the circuit

court and will affirm Bell’s conviction of capital murder

in violation of Code § 18.2-31(6) and the imposition of the

death penalty.

I. FACTS

We will state the evidence presented at trial in the

light most favorable to the Commonwealth, the prevailing

party before the trial court. Burns v. Commonwealth, 261

Va. 307, 313, 541 S.E.2d 872, 877, cert. denied, ___ U.S.

___, 122 S.Ct. 621 (2001); Jackson v. Commonwealth, 255 Va.

625, 632, 499 S.E.2d 538, 543 (1998), cert. denied, 525

U.S. 1067 (1999); Roach v. Commonwealth, 251 Va. 324, 329,

468 S.E.2d 98, 101, cert. denied, 519 U.S. 951 (1996). In

doing so, we accord that evidence all inferences fairly

deducible from it. Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).

A. GUILT PHASE

On the evening of October 29, 1999, Sergeant Timbrook

and two probation and parole officers were working together

in a program known as Community Oriented Probation and

Parole Services. One aspect of Sergeant Timbrook’s

2
responsibilities was to assist the probation officers in

making home visits to individuals on probation or parole.

On that particular evening, these three individuals were

patrolling in an unmarked car in Winchester and were, among

other things, searching for Gerrad Wiley, who was wanted

for violating the terms of his probation.

The officers went to Wiley’s residence on Woodstock

Lane in Winchester several times that evening to no avail.

Just before midnight, when they returned to Wiley’s

residence for the sixth time, they saw an individual

standing in a grassy area between a trash dumpster and an

apartment building. As one of the probation officers and

Sergeant Timbrook exited the vehicle and approached that

individual, who was later identified as Daniel Charles

Spitler, another person, who had “dipped behind in the

shadows,” began running away. Sergeant Timbrook pursued

that individual while calling for assistance on his radio.

Spitler identified the individual who ran from

Sergeant Timbrook as Bell. Spitler testified that, on the

evening in question, he was in the area of Woodstock Lane

for the purpose of obtaining cocaine from Wiley. After no

one answered his knock on the door of Wiley’s residence,

Spitler started walking down a nearby alley where he

encountered Bell. Spitler did not tell Bell that he wanted

3
cocaine, but, according to Spitler, Bell “put his hands on

[Spitler] like to pat [him] down to check and see if

[Spitler] had a wire on [him].” During that encounter,

Sergeant Timbrook and the two probation officers arrived in

the unmarked vehicle.

When the vehicle’s headlights illuminated Spitler and

Bell, Spitler started walking toward the headlights, but

Bell stepped into the shadows of a building. Spitler

identified Sergeant Timbrook as one of the individuals who

emerged from the vehicle. According to Spitler, Bell then

started running away and Sergeant Timbrook chased after

him, yelling “We have one running. Stop.” Spitler lost

sight of Bell and Sergeant Timbrook when they ran behind a

building, but Spitler testified that he heard a shot soon

thereafter.

Sergeant Timbrook chased Bell along several streets

and down an alley between two houses located at 301 and 303

Piccadilly Street. These houses were separated by a fence

approximately two or three feet in height. As Sergeant

Timbrook started to climb over the fence, a shot rang out.

A police officer, Robert L. Bower, who had responded to

Sergeant Timbrook’s radio call for assistance, described

the incident in this manner:

4
 [A]s [Sergeant Timbrook] started to cross over, I took
my eyes off of him, and directed it toward the
subject. I noticed it stopped. And, I saw a, what
appeared to be a left shoulder as it stopped. All I
could was . . . it was like a black material. . . . As
soon as I saw it stop, I looked back at [Sergeant]
Timbrook to say something, at which time I heard the
shot. And, I saw [Sergeant] Timbrook falling.

Sergeant Timbrook’s body was found lying on the ground

with his feet close to the fence and his upper torso

leaning against a wall. His gun was still in its holster.

Sergeant Timbrook was transported to a local hospital where

he was pronounced dead. The cause of death was a single

gunshot wound above his right eye, caused by a bullet which

was fired from a distance of between six and eighteen

inches.

Brad Triplett, one of the probation officers who had

been patrolling with Sergeant Timbrook that evening, ran in

a parallel direction during part of Sergeant Timbrook’s

pursuit of Bell. At one street intersection, he saw

Sergeant Timbrook running after the “same dark[ly] dressed

figure” who had originally fled from Sergeant Timbrook.

Triplett described that person’s clothing as a “dark black

type of jumpsuit, nylon material,” with “reflective like

stripes on the jacket.” Several times during the pursuit,

Triplett heard Sergeant Timbrook yelling, “Stop running.

Police.” He also heard the gunshot.

5
 The police searched the area for the suspect

throughout the night by securing a perimeter around the

neighborhood where the shooting had occurred and by using a

helicopter equipped with a heat-sensitive “Forward Looking

Infrared” camera and a spotlight. At one point during the

search, Officer Brian King spotted an individual lying on

the back steps of a house located at 305 Piccadilly Street. 2

King stated that the person was wearing a dark colored

jacket with reflective strips on the sleeves that “li[t] up

like a Christmas [t]ree” when he shined his flashlight on

the individual. The person then stood up and disappeared

behind a bush.

Emily Marlene Williams, who lived at 305 Piccadilly

Street, testified that she heard the gunshot on the evening

in question and about five minutes later heard a “crash” in

the basement of her house. After she told the police about

the noise in her basement, the police evacuated her and her

family from their home. The following morning, the police

discovered Bell, a Jamaican national, hiding in a coal bin

in the basement of the Williams’ residence. He was wearing

a “LUGZ” black nylon jacket and a black beret cap with a

gold pin. The jacket had reflective stripes on the

2
The shooting occurred in the area between 301 and 303
Piccadilly Street.

6
sleeves. Spitler identified both of these items of

clothing as those that Bell had been wearing on the evening

when Sergeant Timbrook was shot. Before Bell was

transported from the Williams’ residence to the police

department, a gunshot residue test was administered to

Bell’s hands and the recovered particles were subsequently

identified as gunshot primer residue.

During a search of the backyard of the Williams’

residence the day after Bell was apprehended, a deputy

sheriff found a pearl-handled, Smith and Wesson .38 Special

double action revolver. The gun was located under the edge

of a porch on the Williams’ house and was covered with

leaves and twigs. Forensic testing established that this

handgun fired the bullet that killed Sergeant Timbrook.

Forensic testing of DNA that was recovered by swabbing the

grips, butt, trigger, and trigger guard of this revolver

could not eliminate Bell as a co-contributor of that DNA,

which was consistent with a mixture of DNA from at least

three individuals.

When questioned by the police after his arrest, Bell

admitted that he had been on Woodstock Lane when “a white

guy” allegedly began bothering him for information. Bell

said that when a car drove up and a man got out of the car,

he “was scared” and ran. He said he did not know who was

7
chasing him or why, and that when he heard a shot fired, he

hid in the basement of the house where he was later

discovered. Bell denied having a gun. However, while Bell

was confined in jail awaiting trial, he told another inmate

that he shot Sergeant Timbrook, threw the gun underneath a

porch, and then broke into a house and changed clothes in

the basement.

Justin William Jones testified that, around nine

o’clock on the evening of the shooting, he saw Bell in the

vicinity of Piccadilly Street. According to Jones, Bell

showed him a revolver and asked if Jones knew of anyone who

wanted to buy a weapon. Jones identified the pearl-

handled, .38 caliber revolver introduced at trial as the

same weapon that Bell had shown him.

The evening Sergeant Timbrook was shot was not the

first encounter between Timbrook and Bell. Sergeant

Timbrook had arrested Bell for carrying a concealed weapon

in May 1997. The following year, in September 1998,

Sergeant Timbrook was present during the execution of an

Immigration and Naturalization Service order to detain

Bell. Eight months later, Sergeant Timbrook assisted in

executing a search warrant at Bell’s home. Bell was

present during that search. In the summer of 1999, one of

Bell’s friends heard Bell state, as Sergeant Timbrook drove

8
by in a vehicle, “Somebody needs to bust a cap in his ass.”

Another of Bell’s acquaintances testified that she heard

Bell say that he would like to see Sergeant Timbrook dead,

and that if he ever came face to face with Sergeant

Timbrook, he would shoot Sergeant Timbrook in the head

because he knew that Sergeant Timbrook wore a bullet-proof

vest.

B. PENALTY PHASE

During the penalty phase, the Commonwealth presented

evidence regarding Bell’s criminal history. Several law

enforcement officers testified about incidents involving

Bell. A police officer from Jamaica provided information

about Bell’s commission of the crimes of assault and

destruction of property in 1985. In 1997, an officer with

the Winchester Police Department found a .38 caliber

handgun concealed in the trunk of a car being driven by

Bell. The serial number of the gun had been filed off. An

officer with the West Virginia State Police stated that

when he stopped Bell for speeding in 1999, Bell gave him a

false name. When the officer started to arrest Bell and

place him in handcuffs, Bell ran away into a cornfield.

Another West Virginia law enforcement officer found five

.38 caliber rounds of ammunition on Bell’s person during a

“stop and frisk” in 1999. Finally, two employees of the

9
jail where Bell was confined while awaiting trial testified

that Bell had threatened them.

Another witness, Billy Jo Swartz, testified about an

incident in 1997 when Bell grabbed her head and slammed it

into his car. He also held a gun to her head. During the

same incident, Bell got into a fight with his pregnant

girlfriend and knocked her to the ground. Swartz further

stated that she had seen Bell with illegal drugs. Other

witnesses likewise testified about buying illegal drugs

from Bell.

Members of Sergeant Timbrook’s family described their

relationship with him and the effect that his death has had

on the family. His wife was pregnant with their first

child when Sergeant Timbrook was killed. The only evidence

that Bell introduced during the penalty phase was from his

sister and father. 3

II. ANALYSIS

A. ASSIGNMENTS OF ERROR WAIVED

Bell assigned 28 errors on appeal, which he has

reduced to 16 questions presented. However, he failed to

brief several assignments of error. Thus, those alleged

3
We will summarize additional facts and material
proceedings when necessary to address specific issues.

10
errors are waived, and we will not consider them on appeal. 4

Kasi v. Commonwealth, 256 Va. 407, 413, 508 S.E.2d 57, 60

(1998), cert. denied, 527 U.S. 1038 (1999).

B. PRETRIAL AND GUILT PHASE ISSUES

1. SPEEDY TRIAL

4
Bell failed to brief the following assignments of
error, as numbered in his opening brief:
No. 1: trial court erred by refusing to move Bell’s
trial to a different county;
No. 2: trial court erred by refusing to permit Bell to
request expert assistance ex parte while failing to require
the Commonwealth to provide notice of the expert assistance
it was seeking;
No. 3: trial court erred by denying Bell’s request for
an expert to investigate his possible brain damage;
No. 5: trial court erred by denying a Bill of
Particulars as to the Commonwealth’s basis for alleging
that Bell would be a continuing threat to society and for
the purpose of challenging the constitutionality of the
Commonwealth’s capital murder statutes;
No. 8: trial court erred by refusing to exclude
evidence of gunshot residue found on Bell’s hands;
No. 13: trial court erred by refusing to allow Bell to
question prospective jurors concerning their views about
race;
No. 16: trial court erred by refusing to give Bell
additional peremptory challenges during jury selection;
No. 21: trial court erred when it struck juror Haines
for cause;
No. 24: trial court erred by permitting the
Commonwealth to introduce evidence that was relevant only
to Bell’s future dangerousness in the community at large;
No. 25: that portion of this assignment of error in
which Bell claims that the trial court erred by failing to
ensure that the jury was adequately instructed at the
penalty phase of his trial; and
No. 27: trial court erred by refusing to permit Bell
to question individuals providing victim impact evidence at
the sentencing proceeding.

11
 Bell claims that his statutory and constitutional

rights to a speedy trial were violated. He was held in

custody continuously from October 30, 1999, the date of his

arrest, until his trial commenced on January 16, 2001.

During that time, two delays occurred that Bell asserts

should not be attributed to him in determining whether his

speedy trial rights were violated. We do not agree.

On December 20, 1999, the City of Winchester General

District Court found probable cause and certified Bell’s

capital murder charge to a grand jury. The grand jury

subsequently indicted Bell for the capital murder of

Sergeant Timbrook. During a hearing on February 18, 2000,

Bell and his counsel agreed to a trial date of May 30, 2000

and waived Bell’s right to a speedy trial. Bell

acknowledges on brief that the period between February 18,

2000, and May 30, 2000, should not be included in any

speedy trial calculation.

The first delay that Bell claims should not be

attributed to him occurred when one of his trial attorneys

moved for leave to withdraw as counsel for Bell. Bell’s

remaining counsel asked for a continuance of the trial

date. At a hearing on May 22, 2000, the circuit court

granted the motions, appointed an attorney to replace the

one withdrawing from Bell’s defense team, and continued the

12
trial to September 11, 2000. As reflected in the colloquy

between the court and Bell at that hearing and in the

court’s written order, the court explained to Bell that the

continuance was based on his motion and that, therefore,

the additional time until his new trial date would be

excluded from the calculation regarding whether he was

tried within the time frame required by Code § 19.2-243.

Bell indicated that he understood and agreed that the

continuance granted at his request constituted a waiver of

his right to a speedy trial.

Bell now argues that the withdrawal of one of his

trial counsel forced him to choose between waiving his

speedy trial rights or proceeding to trial with only one

attorney. However, the record unequivocally reflects that

Bell expressly asked for the continuance resulting in the

first delay. Thus, the time attributable to that

continuance is subtracted from the total time that elapsed

from the finding of probable cause and the commencement of

his trial. See Code § 19.2-243; Johnson v. Commonwealth,

259 Va. 654, 669, 529 S.E.2d 769, 777, cert. denied, 531

U.S. 981 (2000).

The second delay about which Bell complains involves

his request for an independent expert to examine the DNA

evidence. At the time that he moved for appointment of the

13
expert, Bell also asked for a continuance of the trial date

in order for his expert to have sufficient time to conduct

tests. There had been a delay in receiving the results of

the Commonwealth’s DNA testing. In an order dated August

17, 2000, the circuit court approved the appointment of an

independent expert to examine the DNA evidence on behalf of

the defendant and granted the motion for a continuance.

Over the defendant’s objection, the court attributed this

second delay to Bell for purposes of determining his speedy

trial rights. The court reasoned that, because the

Commonwealth’s DNA test results were inconclusive, Bell’s

request for additional testing was a matter of trial

tactics and that, therefore, Bell’s decision on how to

proceed prompted the delay. Bell’s trial was then set for

January 16, 2001.

We agree with the circuit court’s conclusion that the

second delay was attributable to Bell. As the court noted,

Bell chose to ask for another continuance in order to

obtain additional testing of the DNA evidence after

learning that the results of the Commonwealth’s testing

showed that the DNA profile was consistent with a mixture

of DNA of at least three individuals. His alternative

course at that juncture would have been to proceed to trial

in September and attempt to use the Commonwealth’s evidence

14
to exculpate himself. Having made a decision involving

trial strategy that necessitated another continuance, Bell

cannot now complain about that delay or attribute it to the

Commonwealth.

Upon excluding the time attributable to both

continuances at issue when calculating Bell’s speedy trial

rights under Code § 19.2-243, we conclude that Bell’s trial

commenced within the five-month period required by that

statute. Thus, Bell’s statutory right to a speedy trial

was not violated.

Bell also asserts an infringement of his Sixth

Amendment right to a speedy trial. Some of the factors to

assess in determining whether a defendant’s constitutional

right to a speedy trial has been violated are the “[l]ength

of delay, the reason for the delay, the defendant’s

assertion of his right, and prejudice to the defendant.”

Barker v. Wingo, 407 U.S. 514, 530 (1972); accord Fowlkes

v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664

(1978). Upon considering these factors, we find no

violation of Bell’s right to a speedy trial under the Sixth

Amendment. We have already addressed the reasons for the

disputed delays and concluded that those delays were

attributable to or acquiesced in by Bell. Furthermore, he

has not demonstrated in this record any prejudice resulting

15
from those delays. Thus, the circuit court did not err in

denying Bell’s motion to dismiss the indictment for the

alleged violation of his speedy trial rights.

2. VIENNA CONVENTION

Before his trial, Bell filed a motion to suppress

evidence and to dismiss the indictment because of an

alleged violation of his rights under Article 36 of the

Vienna Convention on Consular Relations (Vienna

Convention), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No.

6820. After hearing testimony from two police officers,

the court denied Bell’s motion. On appeal, Bell asserts

that the circuit court erred by refusing to suppress his

statement to the police because he made that statement

before he was advised of his rights to consular notice and

assistance under the Vienna Convention. 5

James G. Prince, an investigative sergeant with the

Winchester Police Department, was one of the two law

enforcement officers who transported Bell to the Winchester

Police Department after he was apprehended in the basement

of the Williams’ home. Soon after their arrival at the

police department, Bell told Prince that he was born in

5
In contrast to his original motion, Bell does not
assert on appeal that the circuit court erred in refusing
to dismiss the indictment. See Rule 5:17(c).

16
Jamaica and had been in the United States for approximately

seven years. The other police officer present with Prince

then read Bell his Miranda rights, after which Bell

answered questions for approximately 30 minutes. 6 Shortly

after the questioning ended, Prince advised Bell that,

because he was a Jamaican national, his consulate would be

advised of his arrest. According to Prince, Bell

immediately stated that he did not want anyone to contact

the Jamaican consulate. Prince explained to Bell that it

was a “mandatory notification.”

On October 31, 1999, at 10:16 P.M. and 10:21 P.M.,

David Sobonya, a captain with the Winchester Police

Department, faxed a notification to the Consulate of

Jamaica in Washington, D.C., advising that Bell had been

arrested by the Winchester Police Department. Sobonya

indicated that he was not aware of any response by the

Consulate of Jamaica to the faxed notifications. When

asked why there had been a 36-hour delay in making this

notification, Sobonya candidly admitted that it was just an

oversight. He also acknowledged that he, Prince, and the

other police officer who questioned Bell had attended

6
Bell’s statement was recorded on audio-tape and
played for the jury at trial. A transcript of the tape
recording was introduced into evidence.

17
training regarding law enforcement’s responsibilities as to

foreign nationals who are arrested in this country.

Bell now argues that his rights under the Vienna

Convention were violated in three respects: (1) he was not

advised of his right to communicate with his consulate, (2)

he was not advised of the police department’s obligation to

notify his consulate until after he made his statement to

the police, and (3) there was an inordinate delay in

notifying his consulate that he had been arrested. Relying

on the decision of the International Court of Justice (ICJ)

in the LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104 (June

27), he posits that Article 36 of the Vienna Convention

creates an individual right to consular notification and

access, that a showing of prejudice is not necessary to

establish a violation of that article, and that the LaGrand

court decided the question of appropriate remedies when a

violation occurs. Bell also asserts that this Court is

“bound” to apply the ICJ’s decision in LaGrand and that the

only remedy that would vindicate the violation of his

rights under Article 36 is a new trial in which his

statement to the police is suppressed. We do not agree

with Bell’s position and hold that the circuit court did

not err in denying the motion to suppress Bell’s statement.

18
 First, we conclude that any rights that Bell has under

Article 36 of the Vienna Convention were not violated.

That article provides in subsection (1)(b) that “competent

authorities . . . shall, without delay, inform the consular

post of the sending State” when one of its nationals is

arrested or detained pending trial, and shall also “inform

the person concerned without delay of his rights under this

sub-paragraph.” The record in this case demonstrates that

the Winchester Police Department complied with the

requirements of this subsection. Prince advised Bell that

the Consulate of Jamaica would be notified of Bell’s arrest

and that notification, in fact, occurred within

approximately 36 hours after Bell was taken into custody.

The provisions of Article 36 do not mandate immediate

notification, nor do they necessarily require consular

notification before an arrestee is advised of Miranda

rights and agrees to waive those rights by answering

questions. Instead, Article 36 simply requires that the

notification be made “without delay.” Thus, we conclude

that the lapse of 36 hours was not unreasonable. Cf.

County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)

(probable cause finding within 48 hours of warrantless

arrest generally satisfies requirement that judicial

officer make probable cause determination promptly).

19
Notably, the delay in the LaGrand case that prompted the

ICJ to find that the United States had breached its

obligations under Article 36 to the LaGrand brothers and to

the Federal Republic of Germany was more than 16 years. In

fact, the United States did not notify the LaGrand brothers

of their right to consular access until after the

completion of proceedings for post-conviction relief.

Given the fact that Bell objected to any notification being

sent to his consulate, we likewise find no violation of

Article 36 arising from the fact that Prince did not

expressly advise Bell of any rights he may have under this

article.

Second, we conclude that the ICJ, contrary to Bell’s

assertion, did not hold that Article 36 of the Vienna

Convention creates legally enforceable individual rights

that a defendant may assert in a state criminal proceeding

to reverse a conviction. Instead, the ICJ stated that

“Article 36, paragraph 1, creates individual rights, which,

by virtue of Article I of the Optional Protocol, may be

invoked in [the ICJ] by the national State of the detained

person.” LaGrand Case (F.R.G v. U.S.), 2001 I.C.J. 104,

___ (June 27) (emphasis added). The ICJ also held that if

the United States should fail in its obligation under

Article 36, then the United States should allow review of

20
the conviction and sentence by taking into account the

violation of the rights set forth in the Vienna Convention.

However, the ICJ recognized that the “obligation can be

carried out in various ways” and that “[t]he choice of

means must be left to the United States.” LaGrand Case

(F.R.G. v. U.S.), 2001 I.C.J. 104, ___ (June 27).

This acknowledgement by the ICJ reflects the fact

that, in the absence of a clear statement to the contrary,

procedural rules of a forum State govern the implementation

of a treaty in that State. Breard v. Greene, 523 U.S. 371,

375 (1998) (citing Sun Oil Co. v. Wortman, 486 U.S. 717,

723 (1988); Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694, 700 (1988); Societe Nationale Industrielle

Aerospatiale v. United States Dist. Court for Southern

Dist. of Iowa, 482 U.S. 522, 539 (1987)). This principle

is also evident in the provisions of Article 36(2). That

subsection provides that “[t]he rights referred to in

paragraph 1 of this Article shall be exercised in

conformity with the laws and regulations of the receiving

State,” provided that those “laws and regulations . . .

enable full effect to be given to the purposes for which

the rights accorded under this Article are intended.”

In criminal proceedings in the receiving State, i.e.,

the United States, a harmless error analysis is routinely

21
used when deciding whether to suppress a defendant’s

statement made as a result of a violation of the Fifth

Amendment right against self-incrimination. See, e.g.,

Milton v. Wainwright, 407 U.S. 371, 372 (1972); United

States v. Ping, 555 F.2d 1069, 1077 (2d Cir. 1977);

Harryman v. Estelle, 616 F.2d 870, 875 (5th Cir.), cert.

denied, 449 U.S. 860 (1980); United States v. Carter, 804

F.2d 487, 489 (8th Cir. 1986); United States v. Lemon, 550

F.2d 467, 471 (9th Cir. 1977). The same analysis should

apply when a defendant seeks to suppress a statement

because of an alleged violation of rights conferred

pursuant to Article 36 of the Vienna Convention. Thus, in

the present case, even if Bell’s rights under Article 36

were violated because the police questioned him prior to

advising him of his rights to consular notice and access,

we conclude that any such error was harmless. The evidence

of Bell’s guilt, as already summarized in this opinion, is

overwhelming. Furthermore, Bell has not alleged, much less

demonstrated, any prejudice resulting from the fact that

approximately 36 hours elapsed before his consulate was

notified of his arrest, nor has he asserted that he would

not have answered the police officers’ questions if he had

first been advised of his right to communicate with his

22
consulate. Bell, after all, objected to his consulate

receiving notice of his arrest.

Finally, even if Article 36 creates legally

enforceable individual rights, it does not provide –

explicitly or otherwise – that a violation of those rights

should be remedied by suppression of evidence. See United

States v. Li, 206 F.3d 56, 61 (1st Cir.) (en banc), cert.

denied, 531 U.S. 956 (2000); United States v. Chaparro-

Alcantara, 37 F. Supp. 2d 1122, 1125-26 (C.D. Ill. 1999),

aff’d, 226 F.3d 616 (7th Cir.), cert. denied, 531 U.S. 1026

(2000). Such a remedy is generally not available when a

fundamental right is not implicated. Id. The language of

Article 36 does not create a fundamental right comparable

to the privilege against self-incrimination. Id. Thus,

Bell’s claim that the alleged violation of his rights under

Article 36 should be remedied by suppressing his statement

to the police finds no support in the provisions of the

Vienna Convention.

3. SEARCH OF VEHICLE

On November 11, 1999, Arthur Edward Clarke advised the

Winchester Police Department that he had seen Bell exiting

a 1997 Chevrolet Cavalier automobile on the morning before

Sergeant Timbrook was shot. Clarke stated that Bell got

out of the car, walked behind an apartment building located

23
on Woodstock Lane, and proceeded down an alley. Bell did

not live at that apartment complex. When Clarke called the

police in November, the vehicle was still parked at the

same apartment building, which was managed by Clarke.

Clarke connected Bell with the vehicle and the shooting of

Sergeant Timbrook after another tenant told Clarke that

Bell’s girlfriend had tried to break into the vehicle.

While arranging to have the vehicle towed to the

police department, the police learned that the vehicle was

not registered to Bell. At about the same time, the police

also received information from a finance company holding a

lien on the automobile’s title that the vehicle had been

stolen from an “Impound Lot” in Front Royal and needed to

be taken to the police department so the lienholder’s

repossession agent could pick up the vehicle. The

lienholder subsequently gave the Winchester Police

Department permission to search the automobile. Using keys

found in Bell’s possessions when he was arrested, the

police gained access to the vehicle and, while searching

it, found three .38 caliber Federal Hydra-Shok bullets in a

black nylon cartridge case. The bullets were similar to

the one that killed Sergeant Timbrook. 7

7
A search of Bell’s home uncovered an empty box of the
same brand and caliber cartridges.

24
 The owner of the vehicle, Michael Carter Johnson,

testified that he never gave Bell permission to drive his

automobile. However, Johnson acknowledged that the vehicle

had been impounded and that his girlfriend had retrieved

the vehicle from the impoundment lot. The girlfriend

admitted that she loaned Bell the automobile on two

occasions. The first time, Bell returned the vehicle, but

he did not do so the second time, despite her repeated

requests.

Bell moved to suppress the introduction of the

evidence seized during the search of the vehicle. The

circuit court denied the motion, finding that Bell lacked

standing to object to the search of the automobile. On

appeal, Bell argues that he had a reasonable expectation of

privacy in the vehicle because he had been driving it, had

the keys in his possession, and had parked it in a private

parking lot, leaving it locked with his belongings inside.

We do not agree.

Bell bore the burden of proving that he had a

legitimate expectation of privacy in the vehicle so as to

confer standing to challenge the search. Barnes v.

Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987),

cert. denied, 484 U.S. 1036 (1988). He did not carry that

burden. Bell did not own the vehicle, and he did not

25
establish that he was authorized to have the car in his

possession when it was searched. See United States v.

Wellons, 32 F.3d 117, 119 (4th Cir. 1994) (unauthorized

driver of rental car had no legitimate expectation of

privacy in the vehicle), cert. denied, 513 U.S. 1157

(1995); United States v. Hargrove, 647 F.2d 411, 413 (4th

Cir. 1981) (“person who cannot assert a legitimate claim to

a vehicle cannot reasonably expect that the vehicle is a

private repository for his personal effects”). Bell had

left the vehicle parked at an apartment building where he

did not live. At the time of the search, the lienholder

was in the process of repossessing the vehicle and gave the

police consent to conduct the search. Thus, we conclude

that the circuit court correctly denied Bell’s motion to

suppress. He lacked the requisite standing to challenge

the search of the vehicle.

4. GRAND JURY

Bell contends that the circuit court erred by refusing

to dismiss the indictment because the grand jury was

exposed to prejudicial information. On the day that the

grand jury indicted Bell, flyers containing information

about Sergeant Timbrook’s death, his family, and a

scholarship fund for his unborn child were posted on some

of the doors to the courthouse. Bell asserts that the

26
grand jurors could not have avoided seeing these flyers

when they entered the courthouse and were therefore biased

against him.

We find no merit in this argument. Bell’s contention

that the grand jurors were somehow influenced to indict him

because of these flyers is pure speculation. The flyers

did not even mention Bell. Furthermore, the general

district court’s finding of probable cause at the

preliminary hearing and the petit jury’s subsequent guilty

verdict demonstrate that there was probable cause to charge

Bell and that he was in fact guilty as charged beyond a

reasonable doubt. See United States v. Mechanik, 475 U.S.

66, 70 (1986). Thus, we conclude that the circuit court’s

denial of Bell’s motion to dismiss the indictment because

of the presence of these flyers in the courthouse was not

error.

5. JURY SELECTION

Bell contends that the circuit court erred in refusing

to strike three jurors for cause. As we have stated on

many occasions, a trial court is in the superior position,

because that court sees and hears each prospective juror’s

responses to questions during voir dire, to determine

whether a prospective juror would be prevented from or

impaired in performing the duties of a juror in accordance

27
with the court’s instructions and the juror’s oath. Green

v. Commonwealth, 262 Va. 105, 115-16, 546 S.E.2d 446, 451

(2001) (citing Lovitt v. Commonwealth, 260 Va. 497, 510,

537 S.E.2d 866, 875 (2000), cert. denied, 122 S.Ct. 41

(2001); Vinson v. Commonwealth, 258 Va. 459, 467, 522

S.E.2d 170, 176 (1999), cert. denied, 530 U.S. 1218 (2000);

Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394,

402, cert. denied, 510 U.S. 848 (1993)). Thus, we give

deference to a trial court’s determination whether to

exclude a juror for cause. 262 Va. at 115, 546 S.E.2d at

451. And, we will not disturb a trial court’s refusal to

exclude a juror for cause unless that decision constitutes

manifest error. Id. at 116, 546 S.E.2d at 451 (citing

Clagett v. Commonwealth, 252 Va. 79, 90, 472 S.E.2d 263,

269 (1996), cert. denied, 519 U.S. 1122 (1997); Roach v.

Commonwealth, 251 Va. 324, 343, 468 S.E.2d 98, 109, cert.

denied, 519 U.S. 951 (1996); Stockton v. Commonwealth, 241

Va. 192, 200, 402 S.E.2d 196, 200, cert. denied, 502 U.S.

902 (1991)). Guided by these principles, we will examine

each of the jurors about whom Bell complains.

(a) Juror Golding

Bell assigns error to the circuit court’s denial of

his motion to strike juror Golding for cause. However, the

court later excused this juror because she could not

28
arrange for child care during the trial. Bell did not

object to the court’s decision, which moots this assignment

of error. 8

(b) Juror Patton

Bell objected to the seating of juror Patton because,

when asked whether he had formed an opinion about the guilt

or innocence of Bell, this juror initially answered, “Not

sure really. Kind of do and kind of don’t.” After this

initial response, juror Patton was asked the following

series of questions:

MR. FISCHEL [Bell’s attorney]: Mr. Patton, you seemed
to indicate that you might have formed an opinion
about the ultimate question about whether or not Mr.
Bell is guilty of this offense from what you learned
from the media; is that correct? You are uncertain?

MR. PATTON: Kind of uncertain. I mean, I read brief
bites of it. Remember it being in the news a year
ago.

MR. FISCHEL: Let’s assume that whatever news source
[you] received reported what they got very accurately,
do you think that either the City Police or the
Prosecutor[’]s Office or the Defense, through us, gave
them all of the information they have about the case?

MR. PATTON: I don’t guess.

MR. FISCHEL: Would you think that is unlikely?

MR. PATTON: I don’t know.

8
Apparently, neither Bell nor the Commonwealth
realized that juror Golding was excused from the jury panel
since they both argued the merits of this assignment of
error.

29
MR. FISCHEL: If you heard more in this trial than was
reported in the papers, could you fairly and
impartially assess that information to determine
whether or not Mr. Bell is guilty?

MR. PATTON: I suppose.

MR. FISCHEL: You do agree, I think you said, that
there is a presumption of innocence?

MR. PATTON: I guess. I wouldn’t be here.

MR. FISCHEL: That is your purpose?

MR. PATTON: Right.

MR. FISCHEL: And, you understand that first there has
to be evidence, and then instructions and then a
decision?

MR. PATTON: Right.

THE COURT: You have heard the Judge ask you and tell
you that the fact that [Bell] has been arrested and
indicted, that is not evidence?

MR. PATTON: Right.

MR. FISCHEL: That is no more powerful than the
newspaper articles?

MR. PATTON: Right.

MR. FISCHEL: That is the reason we are all here.

MR. PATTON: Right.

* * *

MR. FISCHEL: The point is: A few moments ago you
gave us a maybe, maybe not answer? But, in analyzing
the questions that I just asked you: Can you now tell
us more clearly whether you really have formed an
opinion about Mr. Bell’s guilt or innocence?

[MR.] PATTON: To be honest with you, about a year ago
is when I gave that any thought. Other than that, I

30
 really haven’t thought about it. The only way I knew
about the case was from the paper. I had an opinion
about it, but I don’t know all of the circumstances.
I can’t remember all of the circumstances. To be
honest with you, I think I can listen to both sides
before I get an opinion. If that is what you are
trying to get.

Upon considering juror Patton’s voir dire as a whole

and not just isolated statements, see Green, 262 Va. at

116, 546 S.E.2d at 451, we conclude that he could sit as a

fair and impartial juror. Thus, the circuit court did not

abuse its discretion in refusing to strike this juror for

cause.

(c) Juror Estep

The morning after Sergeant Timbrook was shot, juror

Estep’s mother called him at college, where he was studying

criminal justice, and told him about the incident. She

also sent him newspaper clippings about it. One of Estep’s

best friends was a correctional officer and worked where

Bell was being detained. In a telephone conversation with

his friend, Estep inquired whether his friend had seen

Bell. The friend indicated that he had, but Estep and his

friend did not discuss Bell or the case any further.

When questioned about the conversation, Estep stated,

“It wasn’t as if I called him and was picking his brain to

see what he knew.” Estep acknowledged that his interest in

criminal justice “sparked [his] interest” in this case, but

31
he stated that his career goal to work as a law enforcement

officer or an insurance company investigator would not

affect his ability to sit as a fair and impartial juror.

When asked to describe his view of somebody who would

commit an offense such as the one at issue, Estep stated,

“I wouldn’t say madman. You know, just kind of your

Hollywood type that you would see in the movies.”

In denying Bell’s motion to strike juror Estep for

cause, the circuit court made the following findings:

THE COURT: I do think Mr. Estep has given candid and
forthright responses. I think this is the type of
case which is going to interest any number of people
for a lot of reasons. It is a big case, if you want
to put it that way. It is the type of thing that
citizens who are interested in the affairs of the
community would, indeed, be interested in for any
number of reasons.

Mr. Estep has particular interest.

And,

that is he is a criminal justice major and I
understand why it would be of interest for him. That
is the circumstances and the people involved.

He did indicate that he, when he first heard
about it he had a preconceived notion of what the
defendant would be like. He also readily acknowledged
that preconceived notion could be wrong. And, the way
I read it, he really didn’t give much weight to that
preconceived notion at all. I suppose any time you
are reading about a set of circumstances of which you
are not personally involved, or about people that you
do not know, all of us form some sort of notion about
what happened or something about the people involved.
That can be readily dispelled.

32
 That is the way I read Mr. Estep. He
acknowledged those things, but he also indicated
through his responses, that he understands his
responsibilities as a juror and that he can hear the
case and decide the case fairly and impartially.

Just because he has particular interest in this
field doesn’t disqualify him. And,[from] his
responses, the question he asks his friend about Mr.
Bell was fairly benign and did not go into any
details.

So, I don’t see how that really prejudices him.

We agree with these conclusions. And, the record

supports the court’s findings. Thus, the circuit court did

not abuse its discretion in refusing to strike juror Estep.

6. VOIR DIRE QUESTIONS

In a multifarious argument, Bell asserts that the

circuit court erred when it refused to allow Bell to

conduct individual voir dire of prospective jurors, denied

his motion to prohibit the use of leading questions during

voir dire, restricted the questions that Bell’s counsel

could ask prospective jurors, and used leading questions

with regard to matters relevant to prospective jurors’

impartiality. We find no merit in any of these assertions.

First, Bell does not have a constitutional right to

individual voir dire. Cherrix v. Commonwealth, 257 Va.

292, 300, 513 S.E.2d 642, 647 (citing Stewart, 245 Va. at

229, 427 S.E.2d at 399), cert. denied, 528 U.S. 873 (1999).

Here, the circuit court permitted extensive questioning of

33
the prospective jurors with regard to the factors listed in

Code § 8.01-358, and those questions were sufficient to

preserve Bell’s right to a fair and impartial jury. Thus,

the court did not err in refusing to allow individual voir

dire.

Bell next contends that the circuit court improperly

rehabilitated prospective jurors Battaile, Anderson, Loy,

Wood, Janelle, Funkhouser, and Haines. Initially, we note

that juror Loy was excused for cause without objection by

Bell, and that Bell did not object to the seating of jurors

Battaile, Anderson, Wood, and Funkhouser. Thus, any claim

on appeal regarding those jurors is waived. See Rule 5:25.

Jurors Janelle and Haines were struck for cause over

Bell’s objection. Janelle had stated that she could not

impose the death penalty under any circumstances. Haines

had given inconsistent responses to several questions with

regard to not only whether she could consider imposing the

death penalty but also whether she had formed an opinion

about Bell’s guilt or innocence. However, Bell’s

assignment of error does not challenge the merit of the

court’s decision to strike these two jurors. 9 Instead, he

9
Notably, Bell assigned error to the court’s decision
to strike juror Haines for cause, but that is one of the
assignments of error Bell failed to brief. See footnote 4,
supra.

34
attacks the court’s alleged use of leading questions. But,

we do not find any objection by Bell to the court’s

questions during the voir dire of Janelle and Haines. See

Rule 5:25. Furthermore, we conclude that the circuit court

did not ask improper leading questions of these two jurors.

The court, as well as counsel, struggled to ascertain the

jurors’ positions on certain issues because of their

repeated inconsistent answers.

Finally, Bell claims that the court erred by

sustaining objections to the following questions: (1)

whether the jurors had any thoughts about what natural life

would mean if serving a life sentence or whether there is

anything about natural life rather than death that would

make it a lighter sentence; (2) whether any juror would be

disturbed if Bell decided not to introduce any evidence;

(3) whether there are any crimes for which only a death

penalty is appropriate; and (4) whether the jurors

believed, without any hesitation or doubt, that Bell is

presumed to be innocent. We conclude that the court

properly refused to allow Bell to ask these particular

questions because they were confusing and called for

speculation by the jurors. See Mueller v. Commonwealth,

244 Va. 386, 400, 422 S.E.2d 380, 389-90 (1992), cert.

denied, 507 U.S. 1043 (1993). Bell had no right to

35
propound any question he wished. LeVasseur v.

Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983),

cert. denied, 464 U.S. 1063 (1984). The circuit court

explained the relevant legal principles, asked appropriate

questions to ensure that the jurors understood those

principles and could apply them to the case, and afforded

Bell a full and fair opportunity to ascertain whether

jurors could “stand indifferent in the cause.” Code

§ 8.01-358.

7. RACIAL COMPOSITION OF VENIRE

Bell assigns error to the circuit court’s denial of

his motion to strike the jury array and impanel a new

venire. He claims that, because there were only two Black

individuals in the venire of 50 people, while the Black

population of Winchester is 10.5 percent of the total

population, he was denied his Sixth Amendment right to

select a jury from a representative cross-section of the

community. The circuit court denied Bell’s motion because

he failed to show that there had been a systematic

exclusion of Black members of the community from the

venire. Instead, the court found that the jury selection

system was random.

Systematic exclusion of a “distinctive group in the

community” must be shown in order to establish that a

36
defendant’s constitutional right to a fair jury selection

system has been violated. Watkins v. Commonwealth, 238 Va.

341, 347, 385 S.E.2d 50, 53 (1989) (citing Taylor v.

Louisiana, 419 U.S. 522, 538 (1975)), cert. denied, 494

U.S. 1074 (1990). As the court correctly held, Bell did

not establish a systematic exclusion of any distinctive

group in the community. Thus, we conclude that the court

did not err in denying Bell’s motion.

8. EVIDENCE OF OTHER SUSPECTS

Bell’s defense theory rested on his claim that three

people were involved in the chase during which Sergeant

Timbrook was shot: Bell, Sergeant Timbrook, and an

unidentified gunman. Thus, he proposed to question some of

the police officers about other suspects who were

investigated by asking what the police were told and what

they did as a result of that information. Bell claimed

that he was not offering this testimony for the truth of

the assertions but to determine what the police did with

the information that they gathered about other potential

suspects. The circuit court refused to allow this type of

questioning because it would have elicited responses based

on hearsay.

Although Bell did not proffer any testimony but only

advised the court as to the nature of the questions he

37
wished to ask, we agree with the circuit court’s conclusion

that any question requiring a police officer to state what

he was told regarding other possible suspects would elicit

hearsay. The court, however, advised Bell that he could

present evidence about other suspects so long as it was

admissible under the rules of evidence, and that he could

ask whether blood samples taken from those suspects had

been tested. We also note that Bell did establish that

Captain Sobonya had received both oral and written

information about other suspects. Only when Bell asked

Sobonya about the basis for having issued a “look out” for

a certain vehicle did the court sustain the Commonwealth’s

hearsay objection. Thus, we conclude that the circuit

court did not err in refusing to allow Bell to elicit

hearsay testimony about other suspects from police

officers.

9. EVIDENCE OF BELL’S PRIOR POSSESSION OF A FIREARM

Over Bell’s objection, the Commonwealth introduced

evidence during the guilt phase of the trial that Sergeant

Timbrook had arrested Bell in May 1997 for carrying a

concealed weapon and that Bell had been convicted of that

charge. Bell did not object to admission of the fact that

Sergeant Timbrook had previously arrested Bell on a

misdemeanor charge and that Bell had been convicted of the

38
charge, but he objected to the specific charge being

identified. The Commonwealth offered this evidence to

establish Bell’s motive for killing Sergeant Timbrook;

namely, that if Sergeant Timbrook had apprehended Bell in

possession of the .38 caliber revolver, Sergeant Timbrook

could have charged him with a felony because it would have

been Bell’s second firearms offense, and that such a charge

would have adversely affected Bell’s pending appeal

regarding deportation. 10

Evidence of other crimes is admissible if it tends to

prove any relevant element of the offense charged, such as

motive, or the conduct and feeling of the accused toward

the victim. See, e.g., Satcher v. Commonwealth, 244 Va.

220, 230, 421 S.E.2d 821, 828 (1992), cert. denied, 507

U.S. 933 (1993). The evidence regarding the concealed

weapon charge and conviction was relevant to the

Commonwealth’s theory of motive and was therefore

admissible for that purpose. The circuit court instructed

the jury that it could consider the evidence only as

10
Bell had been convicted for the offense of carrying
a concealed weapon in August 1997. Consequently, the
Immigration and Naturalization Service commenced
administrative proceedings to determine whether Bell could
remain in the United States. After several hearings in the
immigration court, Bell was scheduled for a removal
proceeding on November 5, 1999. That proceeding never took
place because he was arrested on the present charge.

39
evidence of Bell’s intent or motive. Thus, we conclude

that the court did not abuse its discretion in admitting

this evidence.

10. UNIFORMED LAW ENFORCEMENT OFFICERS IN THE COURTROOM

Bell contends that the circuit court erred by denying

his motion to prohibit law enforcement officers from

wearing their uniforms when attending the trial as

spectators. The court did not actually deny his motion in

full. Instead, the court ruled that any officer involved

in the trial as a witness, bailiff, or security guard could

wear a uniform. The court further held that it would not

prevent any officer who was on duty from coming into the

courtroom while in uniform. However, the court recognized

that if too many officers attended the trial as spectators

while in uniform, it could create “an oppressive

atmosphere.” So, the court stated that it would address

that situation if and when it occurred. Apparently, no

such problem ever developed because Bell never raised an

objection that too many uniformed officers were spectators

in the courtroom. Therefore, we find no error in the

court’s ruling on this issue.

C. PENALTY PHASE ISSUES

1. APPOINTMENT OF EXPERT TO TESTIFY
REGARDING CONDITIONS OF CONFINEMENT

40
 Bell assigns error to the circuit court’s denial of

his motion for appointment of a correctional specialist as

an expert to provide testimony regarding the conditions of

confinement under which Bell would be housed if he were

sentenced to a term of imprisonment for life. Bell claims

that he needed this expert to review information about

Bell, to assess his likelihood of being a future danger in

prison, and to testify concerning the correctional systems

used in a maximum security prison to manage inmates and

prevent acts of violence.

Recognizing that this Court has rejected the relevancy

of this type of evidence, see Burns, 261 Va. at 340, 541

S.E.2d at 893; Cherrix, 257 Va. at 310, 513 S.E.2d at 653,

Bell, nevertheless, urges this Court to reexamine this

issue because, in his view, our rulings are inconsistent

with decisions of the United States Supreme Court and

because trial courts in Virginia are not consistently

following the decisions in Cherrix and Burns. Bell asserts

that evidence concerning the prison conditions in which he

would serve a life sentence is relevant not only in

mitigation and in rebuttal to the Commonwealth’s evidence

of future dangerousness, but also to his “future

adaptability” to prison life. A jury, argues Bell, cannot

assess a defendant’s likelihood of adjusting to life in

41
prison if evidence describing the conditions of confinement

is excluded from the jury’s consideration. According to

Bell, the “common thread” running through the decisions of

the United States Supreme Court in Skipper v. South

Carolina, 476 U.S. 1 (1986); Simmons v. South Carolina, 512

U.S. 154 (1994); and Williams v. Taylor, 529 U.S. 362

(2000), is “the Court’s recognition that many inmates who

would be dangerous if released are not dangerous when

confined to the ‘structured environment’ of prison.”

In Skipper, the defendant sought to introduce

testimony from two jailers and a “regular visitor” to the

jail regarding the defendant’s good adjustment during the

time he had spent in confinement. 476 U.S. at 3. The only

question before the Supreme Court was “whether the

exclusion from the sentencing hearing of the testimony [the

defendant] proffered regarding his good behavior during the

over seven months he spent in jail awaiting trial deprived

[the defendant] of his right to place before the sentencer

relevant evidence in mitigation of punishment.” Id. at 4.

In holding that the trial court’s exclusion of this

evidence impeded the sentencing jury’s ability to fulfill

its task of considering all relevant evidence concerning

the character and record of the defendant, the Court

specifically stated that it was not "hold[ing] that all

42
facets of the defendant’s ability to adjust to prison life

must be treated as relevant and potentially mitigating.”

Id. at 7 n.2.

The Supreme Court, in Williams, found that the

defendant’s counsel rendered ineffective assistance, in

part, because counsel failed to introduce evidence at

sentencing from two prison officials who described the

defendant “as among the inmates ‘least likely to act in a

violent, dangerous or provocative way.’ ” 529 U.S. at 396.

Counsel also failed to introduce evidence at sentencing

from two experts who had testified at trial for the

prosecution. In their trial testimony, they had opined

that there was a “high probability” that the defendant

would pose a continuing threat to society. Id. at 368-69.

Those experts, however, also surmised that the defendant

would not pose a danger to society if kept in a “structured

environment,” but the defendant’s counsel failed to elicit

that opinion at sentencing. Id. at 371.

Finally, in Simmons, the issue was whether the Due

Process Clause requires a sentencing jury to be informed

that a defendant is parole ineligible when that defendant’s

future dangerousness is at issue. 512 U.S. at 163-64.

Reiterating that a “defendant’s character, prior criminal

history, mental capacity, background, and age are just a

43
few of the many factors . . . that a jury may consider in

fixing appropriate punishment[,]” the Court concluded that

“there may be no greater assurance of a defendant’s future

nondangerousness to the public than the fact that [the

defendant] never will be released on parole.” Id.

Contrary to Bell’s assertion, our decisions in Cherrix

and Burns are not inconsistent with these three cases. To

use Bell’s term, the “common thread” in these cases is that

evidence peculiar to a defendant’s character, history and

background is relevant to the future dangerousness inquiry

and should not be excluded from a jury’s consideration.

This includes evidence relating to a defendant’s current

adjustment to the conditions of confinement. As the Court

stated in Skipper, “a defendant’s disposition to make a

well-behaved and peaceful adjustment to life in prison is

itself an aspect of . . . character that is by its nature

relevant to the sentencing determination.” 476 U.S. at 7.

But, as we had already stated, “[e]vidence regarding the

general nature of prison life in a maximum security

facility is not relevant to that inquiry, even when offered

in rebuttal to evidence of future dangerousness.” Burns,

261 Va. at 340, 541 S.E.2d at 893.

While we do not dispute that Bell’s “future

adaptability” in terms of his disposition to adjust to

44
prison life is relevant to the future dangerousness

inquiry, Bell acknowledged on brief that the individual

that he sought to have appointed has been qualified

previously as an expert in prison operations and

classification. The testimony that Bell sought to

introduce through the expert concerned the conditions of

prison life and the kind of security features utilized in a

maximum security facility. That is the same kind of

evidence that we have previously rejected as not relevant

to the future dangerousness inquiry. See Burns, 261 Va. at

340, 541 S.E.2d at 893; Cherrix, 257 Va. at 310, 513 S.E.2d

at 653. Nor is such general evidence, not specific to

Bell, relevant to his “future adaptability” or as a

foundation for an expert opinion on that issue. Thus, we

conclude that the circuit court did not err in denying

Bell’s motion. Bell failed to show a ”particularized need”

for this expert. Lenz v. Commonwealth, 261 Va. 451, 462,

544 S.E.2d 299, 305, cert. denied, ____ U.S. ____, 122

S.Ct. 481 (2001). In light of the inadmissibility of the

evidence that Bell sought to introduce through the expert,

he also failed to establish how he would be prejudiced by

the lack of the expert’s assistance. See id.

2. EVIDENCE OF UNADJUDICATED CRIMINAL CONDUCT

45
 Bell contends that the admission of evidence regarding

unadjudicated criminal conduct during the penalty phase of

his trial violated his rights under the Eighth Amendment

and deprived him of life without due process of law. We

have previously decided this issue adversely to Bell’s

position. See, e.g., Lenz, 261 Va. at 459, 544 S.E.2d at

303; Goins v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d

114, 122, cert. denied, 519 U.S. 887 (1996); Williams v.

Commonwealth, 248 Va. 528, 536, 450 S.E.2d 365, 371 (1994),

cert. denied, 515 U.S. 1161 (1995); Satcher, 244 Va. at

228, 421 S.E.2d at 826; Stockton, 241 Va. at 210, 402

S.E.2d at 206; Watkins, 238 Va. at 352, 385 S.E.2d at 56.

Bell presents no compelling reason why we should depart

from our prior rulings.

3. EVIDENCE REGARDING EXECUTION PROCEDURE

Bell contends that the circuit court’s denial of his

motion to conduct an evidentiary hearing regarding the

Commonwealth’s methods of execution violated his rights

under the Eighth and Fourteenth Amendments. He also

contends that the court erred by refusing to prohibit death

penalty proceedings because the imposition of the death

penalty as currently applied in Virginia does not comport

with evolving standards of decency.

46
 We have already ruled that execution of prisoners by

electrocution does not violate the Eighth Amendment’s

prohibition against cruel and unusual punishment. Ramdass

v. Commonwealth, 246 Va. 413, 419, 437 S.E.2d 566, 569

(1993), vacated in part on other grounds, 512 U.S. 1217

(1994), cert. denied after remand, 514 U.S. 1085 (1995);

Stockton, 241 Va. at 215, 402 S.E.2d at 209-10; Martin v.

Commonwealth, 221 Va. 436, 439, 271 S.E.2d 123, 125 (1980);

Hart v. Commonwealth, 131 Va. 726, 743-44, 109 S.E. 582,

587 (1921). While this Court has not specifically

determined whether execution by lethal injection likewise

does not constitute cruel and unusual punishment, the basis

of Bell’s motion and the affidavit evidence he proffered in

support of the motion allege that the Commonwealth’s

current procedures for administering a lethal injection as

a means of execution pose substantial and unwarranted risks

of subjecting a prisoner to extreme physical pain and

suffering during the execution. This is the same type of

allegation that this Court rejected when upholding the

constitutionality of death by electrocution. See Martin,

221 Va. at 439, 271 S.E.2d at 125. See also Ramdass, 246

Va. at 419, 437 S.E.2d at 569. 11 Without more, we conclude

11
One of the affidavits proffered by Bell regarding
electrocution was from Dr. Harold Hillman. In a similar

47
that Bell was not entitled to an evidentiary hearing on

this issue. See Dawson v. State, 554 S.E.2d 137, 144 (Ga.

2001) (recognizing lethal injection as reflective of

“societal consensus that the ‘science of the present day’

has provided a less painful, less barbarous means for

taking the life of condemned prisoners”).

Furthermore, pursuant to the provisions of Code

§ 53.1-234, Bell has the right to choose whether his

execution will be by lethal injection or by electrocution.

Because Bell has that choice and we have already ruled that

execution by electrocution is permissible under the Eighth

Amendment, it would be an unnecessary adjudication of a

constitutional issue to decide whether lethal injection

violates the Eighth Amendment. See Bissell v.

Commonwealth, 199 Va. 397, 400, 100 S.E.2d 1, 3 (1957). We

decline to do so, and likewise cannot say that the circuit

court erred in denying Bell’s motion for an evidentiary

hearing to decide the constitutionality of lethal injection

as a method of execution. Thus, we find no error in the

court’s denial of Bell’s motion.

affidavit submitted in Ramdass, Dr. Hillman stated that
execution by lethal injection, if properly performed, is
substantially less painful than execution by electrocution.
(That particular affidavit was not individually cited in
our opinion in Ramdass, but it was included in the joint
appendix, pp. 1265-71, filed with the appeal in that case.)

48
 4. CONSTITUTIONALITY OF DEATH PENALTY
AS APPLIED IN VIRGINIA

Bell asserts several reasons why the death penalty is

unconstitutional as applied in Virginia. We have

previously rejected his arguments: (1) future

dangerousness predicate is unreliable and vague - rejected

in Remington v. Commonwealth, 262 Va. 333, 355, 551 S.E.2d

620, 626 (2001), cert. denied, ____ U.S. ____, 2002 U.S.

LEXIS 3356 (May 13, 2002); (2) use of unadjudicated

criminal conduct violates requirement of heightened

reliability - rejected in Satcher, 244 Va. at 228, 421

S.E.2d at 826; (3) unconstitutional for trial court to use

pre-sentence report that contains hearsay evidence -

rejected in Cherrix, 257 Va. at 299, 513 S.E.2d at 647; and

(4) Virginia’s appellate review of death penalty cases

violates the Eighth Amendment and the Due Process Clause -

rejected in Lenz, 261 Va. at 459, 544 S.E.2d at 304. Bell

has provided no compelling reason why we should depart from

these precedents.

5. JURY QUESTION REGARDING EARLY RELEASE

In accordance with our decision in Yarbrough v.

Commonwealth, 258 Va. 347, 374, 519 S.E.2d 602, 616 (1999),

the circuit court instructed the jury that “[t]he words

‘imprisonment for life’ mean imprisonment for life without

49
possibility of parole.” During the penalty phase

deliberations, the jury inquired, “Understanding that

imprisonment for life means no possibility of parole, is

there any other way to be released from prison?”

Recognizing that geriatric release is not available to a

defendant convicted of capital murder, the court’s proposed

answer was, “No. Not when the Defendant has been convicted

of capital murder.”

Bell agreed with this response, but the Commonwealth

objected because there could be other ways for a defendant

convicted of capital murder to be released early, such as

by an act of executive pardon or clemency. To answer the

question truthfully would therefore require that the jury

be informed about such things, argued the Commonwealth.

Concluding that the Commonwealth’s position was correct,

the court told the jurors that they “would have to rely on

the evidence that they heard, and the instructions already

presented in deciding the punishment.” In the circuit

court’s view, a truthful answer to the jury’s question

would have opened the door to matters that were speculative

and inappropriate for the jury to consider.

Bell argues that the circuit court erred by not

answering the jury’s question and instructing that other

forms of early release are not available to defendants

50
convicted of capital murder. He contends that the question

indicated that the jurors were speculating about whether,

despite the instruction that life means life without

parole, Bell could still receive some form of early

release. He claims that this speculation, which remained

unresolved, caused the jury to impose the death penalty

instead of life imprisonment. Thus, Bell argues that his

sentence of death was rendered in violation of Virginia

law, see Yarbrough, 258 Va. at 373, 519 S.E.2d at 616, his

rights under the Due Process Clause of the Fourteenth

Amendment, see Simmons, 512 U.S. at 171, and his rights to

a fair and reliable sentencing determination under the

Eighth Amendment, id. at 172-73 (Souter, J., concurring).

However, Bell acknowledges that the court’s proposed

response to the jury’s question was not accurate. Even

though a defendant convicted of capital murder and

sentenced to life imprisonment is not eligible for certain

forms of early release, such as geriatric release under

Code § 53.1-40.01, an act of executive pardon or clemency

is still available for such a defendant. Bell,

nevertheless, argues that the circuit court had a duty to

fashion an appropriate response to the jury’s question and

suggests that such a response would have been that “a life

sentence for Bell would permit no parole, no community

51
supervision, no early release program, or any other credits

that would reduce the mandatory imprisonment.” Recognizing

that even this answer does not address the possibility that

the jury was concerned about release by an act of executive

pardon or clemency, Bell suggests that the court should

also have told the jury not to concern itself with anything

else.

We agree that, when a principle of law is materially

vital to a defendant in a criminal case, a trial court

cannot merely refuse a defective instruction, but must

correct the instruction and then give it in the proper

form. Whaley v. Commonwealth, 214 Va. 353, 355-56, 200

S.E.2d 556, 558 (1973), cited in Fishback v. Commonwealth,

260 Va. 104, 117, 532 S.E.2d 629, 635 (2000). The issue in

this case is not whether the circuit court failed to

correct a defective instruction. Instead, we must decide

whether the court’s answer to the jury’s question was, in

fact, defective. Stated differently, the issue is how the

jury’s question in this case should have been answered “so

that [the jury could be] properly informed and [could]

render a fair trial to both parties while preserving . . .

the separation of” the judicial branch’s function of

assessing punishment and the executive branch’s function of

52
administering the punishment. Fishback, 260 Va. at 113-14,

532 S.E.2d at 633.

To address this issue and the response that Bell now

puts forward as a proper answer to the jury’s question, we

must first examine our decision in Fishback. There, the

question was whether a defendant convicted of a non-capital

felony was entitled to have the jury instructed that parole

has been abolished in Virginia for offenses committed after

January 1, 1995. 260 Va. at 108, 532 S.E.2d at 630. We

answered that question affirmatively. Id. at 115, 532

S.E.2d at 634. In addition, we also concluded that,

“because Code § 53.1-40.01 is in the nature of a parole

statute, where applicable juries shall also be instructed

on the possibility of geriatric release pursuant to that

statute.” Id. at 115-16, 532 S.E.2d at 634.

To clarify our new rule, we further stated that

the task of the trial courts will require only that
instructions with regard to the abolition of parole be
tailored to the facts of a particular case. Thus,
when a defendant’s age and the permissible range of
punishment for the offense in question totally negate
the applicability of Code § 53.1-40.01, the jury will
be instructed that the defendant is not eligible for
parole in accordance with Code § 53.1-165.1. In those
cases where geriatric release is a possibility, then
the jury will be instructed in accordance with the
applicable provisions of Code § 53.1-40.01 along with
the instruction that parole is otherwise abolished.

53
Id. at 116, 532 S.E.2d at 634. Implicit in this holding is

the recognition that fairness to both the defendant and the

Commonwealth requires that jurors be told that, despite the

abolition of parole, certain defendants still qualify for

geriatric release. But when a defendant does not qualify

for geriatric release, the jury need only be informed that

the defendant is not eligible for parole.

In the present case, Bell’s conviction of capital

murder totally negated the possibility of geriatric release

under Code § 53.1-40.01. Thus, pursuant to our direction

in Fishback, the jury was instructed that Bell was not

eligible for parole, i.e., that life means life without the

possibility of parole. As we stated in Fishback, geriatric

release is in the nature of parole, and thus, when a

defendant does not qualify for geriatric release, an

instruction that a defendant is not eligible for parole is

correct, and nothing more is required in order to have

“truth in sentencing.” Id. at 113, 532 S.E.2d at 632.

Hence, the jury in this case was properly instructed with

regard to the abolition of parole, and when it asked

whether there is any other way to be released from prison,

the court properly referred the jury to its prior

instructions.

54
 With regard to the issue of sentencing credits under

Code § 53.1-202.2, we recognized in Fishback that a

defendant’s eligibility for this type of early release

remains dependent upon the prisoner’s conduct and

participation in various programs established by the

Department of Corrections, and on the executive branch’s

subjective assessment of that conduct and participation.

Id. at 115, 532 S.E.2d at 634. Thus, a jury could not,

without engaging in speculation, factor the possibility of

sentencing credits into its determination of an appropriate

sentence. Id. at 116, 532 S.E.2d at 634. For that reason,

we held that juries are not to be instructed with regard to

sentencing credits available under Code § 53.1-202.2. Id.

Unlike the defendant in Fishback, Bell’s conviction of

capital murder precludes the possibility of his earning

sentencing credits. Thus, the reasons underlying our

conclusion in Fishback that juries are not to be instructed

about sentencing credits do not apply to Bell’s situation.

However, because the nature of Bell’s conviction negates

the applicability of Code §§ 53.1-202.2 and –202.3, just as

with geriatric release, we conclude that the circuit

court’s instructions were correct and that, in response to

the jury’s question, the court again properly referred to

its prior instructions.

55
 This leaves only the question whether the jury should

have been advised about the availability of early release

through an act of executive pardon or clemency. Even Bell

does not advocate inclusion of that information in

responding to the jury’s question. Instead, he argues that

the circuit court should have instructed the jury that

geriatric release and sentencing credits are not available

to him and that the jury should not concern itself with

anything else. Bell’s suggested response highlights the

anomaly presented by the jury’s question in this case.

If the jury had inquired about a specific form of

early release, such as geriatric release, then the court

could have answered that question accurately and dispelled

any possible speculation by the jury. Here, however, the

question was general and could not have been accurately

answered without telling the jury about executive clemency

or pardon. Yet, we have never allowed a jury to have that

information because of the potential for jury speculation

resulting in a harsher sentence than would otherwise be

warranted. See Yarbrough, 258 Va. at 372, 519 S.E.2d at

615.

So, the only response that would have comported with

our precedent was to instruct the jurors that geriatric

release and sentencing credits were not available to Bell

56
and that they should not concern themselves with anything

else. Yet, that kind of response would have suggested that

there is some other form of early release still available

to Bell and would have, in fact, invited the jury to

speculate. See Simmons, 512 U.S. at 170 (trial court’s

admonishment that jury should not consider parole and that

parole was not a proper issue for the jury to consider

“actually suggested that parole was available but that the

jury, for some unstated reason, should be blind to this

fact”). Such speculation is “inconsistent with a fair

trial both to the defendant and the Commonwealth.”

Fishback, 260 Va. at 115, 532 S.E.2d at 634.

Given the nature of the jury’s question, we conclude

that the circuit court did not err when it responded by

directing the jury to rely on the evidence that it had

heard and the instructions that had been given. Any other

answer would either have been inaccurate or have led to

further speculation by the jury. The instruction that

imprisonment for life means life without the possibility of

parole was correct under our holdings in Yarbrough and

Fishback. Nothing more was required in this case. Thus,

Bell’s rights under our case law, the Due Process Clause,

and the Eighth Amendment were not violated.

6. STATUTORY REVIEW

57
 Pursuant to Code § 17.1-313(C)(1), we are required to

determine whether the death sentence in this case was

imposed under the influence of passion, prejudice, or other

arbitrary factors. Bell asserts only that, because of the

circuit court’s alleged errors previously argued by him,

his sentence of death was based on arbitrary factors. Our

review of the record does not disclose any evidence to

suggest that the imposition of the death penalty in this

case was based on or influenced by any passion, prejudice,

or other arbitrary factor. We also do not believe that any

of the circuit court’s alleged errors, which we have

already separately addressed, created an atmosphere of

passion or prejudice that influenced the sentencing

decision.

We are also required by the provisions of Code § 17.1-

313(C)(2) to determine whether Bell’s sentence of death is

“excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the

defendant.” In accordance with Code § 17.1-313(E), we have

accumulated the records of capital murder cases reviewed by

this Court, including not only those cases in which the

death penalty was imposed, but also those cases in which

the trial court or jury imposed a life sentence and the

defendant petitioned this Court for an appeal. See Whitley

58
v. Commonwealth, 223 Va. 66, 81, 286 S.E.2d 162, 171, cert.

denied, 459 U.S. 882 (1982). To comply with the statutory

directive that we compare this case with “similar cases,”

we have focused on cases in which a law enforcement officer

was killed and that killing was for the purpose of

interfering with the performance of official duties, and in

which the death penalty was imposed based upon the future

dangerousness predicate. Based on our review, we conclude

that Bell’s sentence of death is not excessive or

disproportionate to sentences generally imposed in this

Commonwealth for capital murders comparable to Bell’s

murder of Sergeant Timbrook. While our review encompasses

all capital murder cases presented to this Court for review

and is not limited to selected cases, see Burns, 261 Va. at

345, 541 S.E.2d at 896-97, we cite the following cases as

examples: Royal v. Commonwealth, 250 Va. 110, 458 S.E.2d

575 (1995), cert. denied, 516 U.S. 1097 (1996); Eaton v.

Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990), cert.

denied, 502 U.S. 824 (1991); Delong v. Commonwealth, 234

Va. 357, 362 S.E.2d 669 (1987), cert. denied, 485 U.S. 929

(1988); Beaver v. Commonwealth, 232 Va. 521, 352 S.E.2d

342, cert. denied, 483 U.S. 1033 (1987); Evans v.

Commonwealth, 228 Va. 468, 323 S.E.2d 114 (1984), cert.

denied, 471 U.S. 1025 (1985).

59
 III. CONCLUSION

For the reasons stated, we find no error in the

judgment of the circuit court or in the imposition of the

death penalty. We also perceive no reason to commute the

sentence of death in this case. Thus, we will affirm the

judgment of the circuit court.

Affirmed.

60