Posted May 9, 2001 | comments Leave a comment

Bell attorneys seek to clarify jury’s question

By Kevin Killen -- Daily Staff Writer

Attorneys for convicted murderer Edward N. Bell were back in Winchester Circuit Court on Tuesday for a hearing aimed at clarifying a jury question regarding life in prison that was written as a note and subsequently lost.

Warrenton-based defense attorney Jud A. Fischel asked the court, during a hearing that took only 15 minutes, to recall when the note was discussed -- specifically asking Circuit Judge Dennis L. Hupp to remember what was said.

"If I recall, the question in the note was 'Is there any other way to be released from prison, since there is no parole in Virginia?'" Hupp said. "My answer was no, not when you have been convicted of capital murder."

Hupp said also that if he had told the jury that changes in the law or a gubernatorial pardon were two possible ways of getting out of prison, it would have led the jury in too many different directions.

"That is why I left it where it was," Hupp said.

Winchester Commonwealth Attorney Paul H. Thomson told Hupp on Tuesday that he sent Fischel a letter, which included a section of the transcript that his office believed contained information about the note's question. The judge agreed that was right.

The note, which has never been found, could have been thrown away, Hupp said.

"I don't know where the note went," he said. "Anything could have happened to it during cleanup, but we know we don't have it."

Fischel requested Tuesday's hearing in April after sending a letter to Circuit Clerk Michael M. Foreman saying there was a "major flaw" in the official record, and asking for a copy of the note. He was told that the note was not in the court file.

In his letter, Fischel says that the lost note created a "calamity" and he suggested going back on record in an attempt to formally and officially reconstruct the event because it is the very heart of their post-trial motions, which was the reason for the hearing.

Fischel said he was satisfied with the court's response, and asked for an extended deadline until Tuesday to file a motion to argue post-trial matters on the day of Bell's sentencing.

Hupp granted the motion with no objection from Thomson.

Bell, 36, was convicted in January of the shooting death of Winchester police Sgt. Ricky L. Timbrook on Oct. 29, 1999, following a foot chase down Piccadilly Street shortly before midnight.

A jury of nine women and three men took less than one hour the day after the guilty verdict to recommend Bell get the death penalty. In addition to the death sentence, the jury sentenced Bell to 48 years in prison and a $500,000 fine for convictions on charges of possessing cocaine with intent to distribute, using a firearm in the commission of murder and possessing a firearm while possessing cocaine.

Since being found guilty, Bell has filed one appeal with the 4th U.S. Circuit Court of Appeals, which has been denied.

Bell will be sentenced May 30 at 9 a.m. in Winchester Circuit Court.

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