Saturday 25 November 2000

Judge says no to voice from beyond the grave

Taped statement of Dell's lesbian lover ruled inadmissible

Peter Hum
The Ottawa Citizen

PEMBROKE -- Cherrylle Dell's defenders scored a critical victory yesterday when a judge refused to admit as evidence the videotaped statement in which the accused woman's ex-lover accuses her of murder.

Ontario Superior Court Justice James Chadwick ruled yesterday that the statements from the late Nancy Fillmore were inadmissible because they were not sufficiently reliable and could not be tested by cross-examination.

Mrs. Dell, 46, has pleaded not guilty to first-degree murder in connection with the December 29, 1995, death of her estranged husband Scott. Mr. Dell, then 44, died after drinking wine laced with antifreeze and his death was originally considered a suicide.

In March 1997, Ms. Fillmore, 39, went to police and asserted that Mrs. Dell, who had been her live-in lover when Mr. Dell died, had given him the poisoned wine and urged him to drink it. She also told police that she herself had bought the wine and antifreeze for Mrs. Dell.

Ms. Fillmore died in an August 1997 fire. Last summer, Mrs. Dell was charged with another count of first-degree murder in connection with her ex-lover's death and she faces a separate trial at a later date.

Even the prosecutor, Pembroke Crown attorney Peter Barnes, conceded that Ms. Fillmore had potential motives to lie to police, not the least of which was that she had been jilted by Mrs. Dell. However, he argued that the statement met the threshold to be considered as evidence before the court, to be later weighed as true or false.

Judge Chadwick disagreed. "The statement may very well have been given out of malice towards Cherrylle Dell or to secure favourable treatment for herself if she was also charged with Scott Dell's murder," he said. "It is impossible to determine Nancy Fillmore's motive when she gave her statement."

Defence lawyers Robert Selkirk and Michael March were clearly pleased with the judge's ruling. Mr. Selkirk said the decision simplifies the case.

It now appears the defence will advance the position that Mr. Dell's death was a suicide all along. While the Crown no longer has Ms. Fillmore's assertion to rely upon, it still has dozens of witnesses to call.

Mr. Barnes said yesterday he wishes to call evidence as to Mrs. Dell's motive for the alleged killing, exploring the circumstances of the Dell's estrangement, including the custody battle for their children and legal wrangling over property.

Mr. Barnes said such evidence counters the position that Mr. Dell was suicidal, advancing that he instead had put his marital difficulties and health problems behind him.

The trial, which is expected to last until late January, resumes Monday.

Copyright 2000 Ottawa Citizen