Present: All the Justices
BENJAMIN LEE LILLY
OPINION BY
v. Record Nos. 972385, 972386 JUSTICE LAWRENCE L. KOONTZ, JR.
November 5, 1999
COMMONWEALTH OF VIRGINIA
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Pursuant to a jury trial held in the Circuit Court of
Montgomery County in 1996, Benjamin Lee Lilly (Lilly) was
convicted and sentenced to death for the willful, deliberate,
and premeditated killing of Alexander V. DeFilippis in the
commission of robbery in violation of Code § 18.2-31(4). In
Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (1998), we
affirmed the trial court’s judgment and the death sentence. ∗
Thereafter, Lilly successfully petitioned the Supreme Court of
the United States for a writ of certiorari. The Supreme Court
∗
We also affirmed Lilly’s conviction for the abduction and
robbery of DeFilippis, Code §§ 18.2-47 and 18.2-58, the
carjacking of DeFilippis’ vehicle, Code § 18.2-58.1, the use of
a firearm in the principal offenses and the possession of a
firearm after having previously been convicted of a felony, Code
§§ 18.2-53.1 and 18.2-308.2(A)(i). On brief and during oral
argument, Lilly’s counsel conceded that the untainted evidence
was sufficient to sustain Lilly’s convictions for these
offenses. Indeed, Lilly stresses on brief that “[t]he sole
issue on this remand is whether the unconstitutional admission
of Mark Lilly’s statements was harmless beyond a reasonable
doubt on the question of whether Ben Lilly . . . was the
triggerman.” Accordingly, our prior decision affirming these
convictions and the sentences imposed thereon remains
undisturbed with the exception of the firearm charge related to
the capital murder offense.
reversed a portion of our judgment, holding that the admission
into evidence at Lilly’s trial of two confessions made by
Lilly’s brother Mark Lilly (Mark), who refused to testify,
violated Lilly’s Sixth Amendment right to be confronted with the
witnesses against him. Lilly v. Virginia, 527 U.S. ___, 119
S.Ct. 1887 (1999). The Supreme Court remanded the case with
directions to this Court to determine whether this error was
harmless beyond a reasonable doubt. Having now considered the
briefs and oral argument of Lilly and the Commonwealth and again
reviewing the trial record, we address the issue of harmless
error in this case.
The standard that guides our analysis of the harmless error
issue in this case is clear. Thus, “before a federal
constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a
reasonable doubt;” otherwise the conviction under review must be
set aside. Chapman v. California, 386 U.S. 18, 24 (1967). This
standard requires a determination of “whether there is a
reasonable possibility that the evidence complained of might
have contributed to the conviction.” Id. at 23. In making that
determination, the reviewing court is to consider a host of
factors, including the importance of the tainted evidence in the
prosecution’s case, whether that evidence was cumulative, the
presence or absence of evidence corroborating or contradicting
2
the tainted evidence on material points, and the overall
strength of the prosecution’s case. Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986); see also Harrington v. California, 395
U.S. 250, 254 (1969); Schneble v. Florida, 405 U.S. 427, 432
(1972)(erroneously admitted evidence harmless where it was
merely cumulative of other overwhelming evidence of guilt).
We have recited the evidence in the record in our prior
decision and we need not repeat it here. Rather, we will focus
on the facts that are pertinent to our resolution of the present
issue. In that regard, we initially note that in order to
convict Lilly of capital murder and to subject him to a death
sentence for the murder of DeFilippis, the Commonwealth had the
burden to prove beyond a reasonable doubt that Lilly was the
actual perpetrator of the crime or the “triggerman” in the
murder. Graham v. Commonwealth, 250 Va. 487, 492, 464 S.E.2d
128, 130, cert. denied, 516 U.S. 997 (1995); Johnson v.
Commonwealth, 220 Va. 146, 155-56, 255 S.E.2d 525, 530 (1979),
cert. denied, 454 U.S. 920 (1981).
Contrary to the Commonwealth’s assertions, the evidence of
Lilly’s guilt as the actual perpetrator, or the triggerman, in
the murder of DeFilippis was not “simply overwhelming.” There
was no physical evidence such as fingerprints on the murder
weapon or human blood evidence to link Lilly to the killing.
Indeed, the murder weapon was not found in the possession of
3
Lilly after the murder and there was evidence that prior to the
murder the weapon was at various times in the possession of
Lilly, his brother Mark, and the other co-defendant, Gary Wayne
Barker. In addition, Lilly’s remark to Police Chief Whitsett
after Lilly was detained to the effect that Lilly “looked like a
murderer” in no way amounts to an actual confession to capital
murder as contended by the Commonwealth. That remark, even
viewed in the light most favorable to the Commonwealth, does no
more than implicate Lilly as a participant in the murder of
DeFilippis and, thus, is indicative of his guilt of first degree
murder only. See Harrison v. Commonwealth, 220 Va. 188, 191,
257 S.E.2d 777, 779 (1979). It does not establish that he was
the triggerman.
There is no dispute that following the abduction of
DeFilippis, there came a time when only Lilly, Mark, Barker, and
DeFilippis were at the murder scene. It is self-evident that
the account of what happened there was crucial to the
determination by the jury of which of the co-defendants
inflicted the fatal gunshot wounds upon DeFilippis. Lilly did
not confess and did not testify. Accordingly, as the
Commonwealth concedes on brief, “Barker’s eyewitness testimony
unquestionably was the centerpiece of, or . . . the ‘key to’ the
Commonwealth’s case.” Barker testified that Lilly fatally shot
4
DeFilippis three times in the head. Mark’s statements also
identified Lilly as the triggerman.
The Commonwealth asserts that this Court should be
confident that the admission of Mark’s statements was harmless
beyond a reasonable doubt. In support of that assertion it
argues that Barker’s testimony was corroborated by other
evidence, independent of Mark’s statements, on every material
point. We disagree. While it is true that much of Barker’s
testimony was corroborated by other evidence, that evidence
related to the various criminal acts committed by Lilly, Mark,
and Barker leading up to and surrounding the murder of
DeFilippis. The fallacy of the Commonwealth’s argument is that
this other evidence upon which it relies did not relate to or
corroborate Barker’s testimony on the critical issue whether
Lilly, as opposed to Mark or Barker, was the triggerman in the
murder. Only Mark’s statements implicating Lilly as the
triggerman corroborated Barker’s testimony on that issue. Thus,
on that critical issue, the Commonwealth’s evidence was not
overwhelming.
Clearly, where the principal direct evidence against the
accused is the testimony of an accomplice, the credibility of
that witness will be a significant factor in the jury’s
determination of the accused’s level of culpability. We have
consistently held that this credibility determination rests with
5
the jury and is not subject to challenge on appeal merely
because the testimony is self-serving, results from a favorable
plea arrangement, or because the witness is himself a felon.
See Joseph v. Commonwealth, 249 Va. 78, 86, 452 S.E.2d 862, 867-
68, cert. denied, 516 U.S. 876 (1995). However, here the issue
is not the credibility of the witness, but rather the potential
for harm caused by the erroneous admission of evidence which
tends to support the jury’s credibility determination. In that
context we must presume that such evidence had the potential to
influence the jury into accepting the properly admitted evidence
as more credible and, thus, to taint the jury’s determination of
the facts.
This is precisely the circumstance with which we are faced
in considering the harm of the erroneous admission of Mark’s
statements implicating Lilly as the triggerman. In the absence
of these statements, Barker’s testimony that Lilly was the
triggerman was supported only by the evidence that Lilly was
present and had the opportunity to shoot DeFilippis. It is
therefore inconceivable that the jury would not have weighed
Barker’s credibility in light of the concurring evidence of
Mark’s statements. Moreover, those statements, coming as they
did, from Lilly’s brother undoubtedly carried weight with the
jury. Thus, there is a reasonable possibility that those
statements contributed to Lilly’s conviction for capital murder.
6
Accordingly, we cannot say that the error in admitting Mark’s
statements was harmless beyond a reasonable doubt.
For these reasons, we will affirm Lilly’s conviction for
the carjacking, robbery, abduction, and the four related firearm
charges, reverse Lilly’s conviction for capital murder and the
related firearm charge, and remand the case for a new trial
consistent with the views expressed herein and in the opinion of
the United States Supreme Court, if the Commonwealth be so
advised.
Record No. 972385 — Reversed and remanded.
Record No. 972386 — Affirmed in part,
reversed in part,
and remanded.
JUSTICE KINSER, with whom JUSTICE COMPTON joins, dissenting.
As the majority correctly notes, affirmation of the
defendant’s convictions requires a belief beyond a reasonable
doubt that the error was harmless. Chapman v. Commonwealth, 386
U.S. 18, 24 (1967). Because I believe beyond a reasonable doubt
that the admission into evidence of Mark Lilly’s out-of-court
statements, while error, was harmless in that it did not
unfairly “‘contribute to the [jury’s] verdict,’” Yates v. Evatt,
500 U.S. 391, 403 (1991) (quoting Chapman, 386 U.S. at 24), I
would affirm the defendant’s convictions for capital murder and
use of a firearm in the commission of capital murder.
7
I reach this result because the defendant has conceded that
the admission into evidence of the challenged statements was
harmless error in the several related convictions, a concession
fully supported by the record. Thus, his claim that admission
of the statements was not harmless as to the two convictions at
issue here simply does not ring true. On brief, the defendant
specifically stated that he “does not challenge that the
admission of Mark Lilly’s statements was harmless error on [the
defendant’s] convictions for robbery, abduction, carjacking,
possession of a firearm[, and] illegal use of a firearm (except
with respect to the use of a firearm to kill Alexander
DeFilippis).” 2 The defendant asserts that the admission of his
brother’s statements into evidence was not harmless error only
with regard to his convictions for capital murder and use of a
firearm in the commission of that murder. He characterizes the
sole issue on remand as “whether the unconstitutional admission
of Mark Lilly’s statements was harmless beyond a reasonable
doubt on the question of whether Ben Lilly . . . was the
triggerman.”
The defendant’s position that the admission of Mark’s
statements was not harmless error as to the “triggerman” issue
is predicated upon the defendant’s contention, which the
2
At oral argument, he also conceded that he was guilty of
murder.
8
majority accepts, that the statements improperly influenced the
jury, since they corroborated the testimony of Gary Wayne
Barker, and thus may have caused the jury to find that Barker
was more credible than it otherwise might have found. The
defendant contends that this Court should reverse his
convictions for capital murder and the related firearms charge
because “the Commonwealth is left with only with [sic] the
testimony of Gary Barker that Ben Lilly was the triggerman,” and
that “[s]uch evidence is insufficient to make the admission of
Mark Lilly’s statements harmless beyond a reasonable doubt.”
However, the defendant fails to acknowledge that the only
evidence supporting the elements of the offenses of carjacking,
abduction, and the use of a firearm in the commission of those
crimes is also the testimony of Barker, coupled with the
erroneously admitted statements of Mark. 3 In other words, those
3
For example, the only evidence establishing that the
defendant committed the crime of carjacking was the testimony of
Barker, along with Mark’s statements. There were no other
eyewitnesses to the carjacking, nor any forensic evidence
linking the defendant to that crime. DeFilippis’ roommate
testified that DeFilippis and his car disappeared near the
location where defendant’s car was abandoned. However, that
testimony was insufficient to prove that defendant was guilty of
carjacking. The same analysis also applies to the charge of
abduction.
With regard to the charge for the robbery of DeFilippis,
Barker’s testimony is the sole evidence linking the defendant to
that crime. Mark’s only comment that could be construed as
being related to that robbery was that DeFillipis took his shirt
and shoes off when DeFilippis and the defendant, who had a
pistol, were alone outside the car. However, Mark stated that
9
charges stand in the same evidentiary posture as the
“triggerman” issue. If Barker’s testimony was sufficient to
convict the defendant of the numerous offenses for which he was
sentenced to life imprisonment, and the credibility of his
testimony as to those offenses was not improperly supported by
the admission of Mark’s statements, as the defendant concedes, I
see no reason why the same is not true with regard to his
convictions for capital murder and the related firearms charge.
I recognize that the defendant could have been found guilty
of these other crimes as a principal in the second degree,
rather than as the actual perpetrator, and that he could have
been found guilty of the capital murder of DeFillipis only if he
were the “triggerman.” However, that distinction does not
change the fact that the only evidence supporting the
defendant’s convictions for abduction, carjacking, capital
murder, and use of a firearm in committing those offenses is the
same. Thus, if the admission into evidence of Mark’s out-of-
court statements is harmless error as to any of the defendant’s
he could not hear anything that was being said by either man.
Thus, I will not include the robbery conviction in my discussion
with regard to the import of the defendant’s concession that the
admission of Mark’s statements into evidence was harmless error
with regard to all his convictions except those for capital
murder and the use of a firearm in the commission of such
murder. However, the defendant’s acknowledgement that his
robbery conviction was proper demonstrates that Barker’s
uncorroborated testimony was sufficient to convict the defendant
of that charge.
10
convictions, it must be harmless error as to all of his
convictions.
I also believe that the majority focuses too narrowly on
whether the admission of Mark’s statements might have affected
the jury’s credibility determination, and thus contributed to
the conviction, without looking at the credibility issue in
light of the whole record. See Delaware v. Van Arsdall, 475
U.S. 673, 681 (1986) (“an otherwise valid conviction should not
be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond
a reasonable doubt”). The defendant’s statement to Pearisburg
Police Chief Whitsett shortly after being apprehended in Giles
County 4 that the defendant “looked like a murderer” lends
credence to Barker’s testimony that the defendant was the
“triggerman.” While the majority contends that this statement
establishes only guilt of first degree murder, 5 the statement,
viewed in the light most favorable to the Commonwealth, Horton
v. Commonwealth, 255 Va. 606, 608, 499 S.E.2d 258, 259 (1998),
suggests that the defendant believed he looked like a murderer
4
The defendant, Mark and Barker were arrested in Giles
County and charged with two robberies that occurred there after
the murder of DeFilippis.
5
Harrison v. Commonwealth, 220 Va. 188, 191, 257 S.E.2d
777, 779 (1979), the case cited by the majority, does not
support the majority’s position, but stands solely for the
11
because he had pulled the trigger of the gun. Indeed, I believe
that a defendant who confesses to murder does not necessarily
make, understand or draw the distinctions between capital, first
degree and other types of murder that the law recognizes. Thus,
the defendant’s statement could properly be considered by the
jury as an admission of guilt to being the “triggerman” in the
murder of DeFilippis. Likewise, the defendant’s statement after
being apprehended that Mark was not “the one that’s really done
anything wrong” is probative of the defendant’s guilt.
In addition to these statements, the defendant’s
confession, which was introduced into evidence at his trial,
contained a number of false or inconsistent statements. For
example, he stated that four people were involved in the Giles
County robberies, and he gave inconsistent information regarding
what time he joined Mark and Barker on the evening of the murder
of DeFilippis. Notably, the defendant did not mention any of
the crimes or events involving DeFilippis. False statements by
a defendant may be probative of guilt. Sheppard v.
Commonwealth, 250 Va. 379, 389, 464 S.E.2d 131, 137 (1995),
cert. denied, 517 U.S. 1110 (1996); Black v. Commonwealth, 222
Va. 838, 842, 284 S.E.2d 608, 610 (1981).
established proposition that only the “triggerman” may be
convicted of capital murder.
12
Finally, I conclude that the majority failed to determine
whether, even if “the damaging potential of the cross-
examination were fully realized,” the jury’s verdict would still
have been the same. Van Arsdall, 475 U.S. at 684. In my
opinion, cross-examination of Mark in this case would not have
adversely affected the credibility of Barker. Defense counsel
called Mark during the sentencing phase of the defendant’s
trial. There, Mark was a wholly unconvincing witness. In his
haste to attempt to retract his out-of-court statements
implicating his brother, he went so far as to attempt to retract
his claim that the defendant robbed DeFilippis. However,
nothing in Mark’s prior statements had directly implicated the
defendant in the commission of that crime. The fact that the
jury sentenced the defendant to death after hearing Mark’s
retraction lends further support to my conclusion that the
“‘minds of an average jury’ would not have found the
[Commonwealth’s] case significantly less persuasive” had Mark’s
statements been excluded. Schneble v. Florida, 405 U.S. 427,
432 (1972)(quoting Harrington v. California, 395 U.S. 250, 254
(1969)).
Thus, I am convinced that the admission into evidence of
Mark’s out-of-court statements did not unfairly “‘contribute to
the [jury’s] verdict’” convicting the defendant of capital
murder and use of a firearm in committing that murder. Yates,
13
500 U.S. at 403, (quoting Chapman, 386 U.S. at 24). For these
reasons, I respectfully dissent.
14