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