Lilly v. Commonwealth

PRESENT: All the Justices

BENJAMIN LEE LILLY
OPINION BY
v. Record Nos. 972385, 972386 JUSTICE LAWRENCE L. KOONTZ, JR.
April 17, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge

In this appeal, we review the capital murder conviction and

death sentence imposed by a jury on Benjamin Lee Lilly (Lilly).

Lilly was also convicted of lesser offenses arising out of the

same occurrence, but does not directly challenge the sufficiency

of the evidence to support his convictions for the lesser

offenses.

I.
PROCEEDINGS

On April 1, 1996, indictments were returned against Lilly

charging that on December 5, 1995, Lilly abducted and robbed

Alexander V. DeFilippis, Code §§ 18.2-47 and 18.2-58, carjacked

DeFilippis’ vehicle, Code § 18.2-58.1, and subsequently murdered

DeFilippis as part of the commission of the robbery, Code §

18.2-31(4). Lilly was also charged with use of a firearm in the

principal offenses and for possession of a firearm after having

previously been convicted of a felony. Code §§ 18.2-53.1 and

18.2-308.2(A)(i).
 Lilly filed pre-trial motions to exclude evidence of a

statement he made to Pearisburg Police Chief William Whitsett,

to permit voir dire of jurors concerning parole ineligibility

issues, 1 to exclude evidence of Lilly’s refusal to submit to a

paraffin gunpowder residue test, and for a bill of particulars.

Lilly also sought to exclude from evidence statements made by

Mark Lilly, Lilly’s brother and a co-participant in these

crimes, asserting that their admission would be a violation of

the hearsay rule and of the confrontation clause. The trial

court denied all of these motions. Lilly also filed a motion

for a change of venue, which the trial court took under

advisement pending selection of the jury.

Lilly also filed a discovery request seeking, inter alia,

“[a]ll alleged confessions or statements of any kind made by the

Defendant or any alleged co-conspirator . . . in every media in

which each such confession or statement may exist.” The trial

court granted the discovery motion and the Commonwealth supplied

Lilly with, among other items, transcripts of the tape-recorded

statements of Mark Lilly.

Jury selection began on October 15, 1996 and continued over

four days. Trial commenced on October 21, 1996 and proceeded

1
In addition, Lilly sought to argue parole ineligibility as
a mitigating factor and to submit jury instructions on this
issue during the penalty phase. The trial court granted these
portions of the motion.

2
for five days, concluding with a jury verdict finding Lilly

guilty on all counts of the indictments. The penalty phase of

the trial occurred on October 28, 1996, concluding with a jury

recommendation of a sentence of death for the capital murder

charge and two life terms plus a total of 27 years for the

lesser offenses. The trial court entered judgment on the jury’s

verdict and imposed the sentences by final order dated March 7,

1997.

II.
EVIDENCE

We will review the evidence in the light most favorable to

the Commonwealth. Clagett v. Commonwealth, 252 Va. 79, 84, 472

S.E.2d 263, 265, cert. denied, ___ U.S. ___, 117 S.Ct. 972

(1996). Gary Wayne Barker, the Commonwealth’s principal

witness, shared a room with Mark Lilly. Barker testified that

on the day before the murder, he, Lilly, and Mark Lilly were at

Lilly’s home “drinking” and smoking marijuana. Later, the three

men drove to a friend’s house to “drink a little bit with him.”

When they discovered that the friend was not at home, the three

men broke into the house and stole several guns, a safe, and a

quantity of liquor. They subsequently broke open the safe and

divided its contents.

The three men then drove to Radford where they tried

unsuccessfully to trade the stolen guns for marijuana. They

3
then went to stay at the home of an acquaintance in Blacksburg.

During this time they continued to drink and smoke marijuana.

The following morning, the three men drove over the back

roads in the vicinity of Shawsville and Elliston, stopping to

fire the stolen guns at some geese and killing one, which they

put in the trunk of the car. They again attempted to trade the

guns for marijuana at a trailer park and a bar in Blacksburg.

Near Heathwood, the car in which the three men were

travelling broke down in the vicinity of a convenience store.

They removed the liquor and guns from the car. DeFilippis, who

had driven to the store with a friend, was inspecting a tire on

his vehicle while his friend went into the store. Lilly,

carrying one of the stolen guns, confronted DeFilippis and

called for Barker and Mark Lilly to join him. Lilly ordered

DeFilippis into DeFilippis' car and Mark Lilly and Barker also

got into the vehicle. Lilly then drove the vehicle away from

the store and ordered DeFilippis to surrender his wallet.

Lilly drove DeFilippis’ car to an isolated point on the

bank of the New River near Whitethorne, stopped the car, and

ordered DeFilippis to get out. Mark Lilly was carrying one of

the stolen guns, a pistol. The other guns were left in the car.

Lilly ordered DeFilippis to strip to his underwear and walk away

from the car. After throwing DeFilippis’ clothing into the

river, the three men returned to the car. Lilly took the pistol

4
from Mark Lilly, ran up to DeFilippis, turned him around, and

shot him four times, fatally striking him three times in the

head and once in the arm.

Lilly returned to the car, leaving DeFilippis’ body in the

road. Barker and Mark Lilly asked Lilly why he had shot

DeFilippis. He replied that DeFilippis had seen Lilly’s face

and that “I ain’t going back” to the penitentiary.

The three men bought beer with the money they had stolen

from DeFilippis and then drove to the McCoy River where they

disposed of “anything that might have our prints on it,”

although they retained the murder weapon and the other guns.

They then drove to "a little market" in Giles County, where they

robbed the owners of cash and some merchandise.

Determining that the money from this robbery was not

sufficient “[t]o get us out of . . . town,” they drove to

another store, also in Giles County. Barker and Mark Lilly

entered that store and attempted to rob the clerk. They were

interrupted by the owner who grabbed Barker. Barker broke free

and the two men fled to the car. The owner followed them as

Lilly drove away. Barker fired one of the guns into the air to

let the owner know that they were armed, and he ended his

pursuit.

A short time later, the car broke down. As the three men

were removing the stolen merchandise from the car, police

5
officers arrived. The three men fled on foot, with Barker and

Lilly being captured almost immediately.

One of the officers responding to the report of these

robberies was Police Chief Whitsett. While Lilly was sitting in

a police car and Whitsett was standing nearby, Lilly asked

Whitsett to place his shotgun in Lilly’s mouth and pull the

trigger. Whitsett refused and asked Lilly “if I looked like a

murderer?” In reply to a comment made by Lilly, Whitsett then

asked, “what does a murderer look like anyway?” Lilly replied,

“me.”

Barker and Mark Lilly both told the police about the

DeFilippis murder in their statements. In his initial statement

to police, Lilly did not mention the murder and maintained that

the other two men had forced him to participate in the

robberies.

We will recite other relevant facts and proceedings within

the discussion of the assignments of error.

III.
ISSUES PREVIOUSLY DECIDED

Lilly has assigned error to the trial court’s failure to

order the Commonwealth to provide a general bill of particulars

prior to trial, as well as a bill of particulars of the

aggravating factors upon which the Commonwealth would rely

during the penalty phase of the trial. Lilly has further

6
assigned error to the trial court’s finding that the Virginia

death penalty statute is not unconstitutional. The arguments

raised in these assignments of error have been thoroughly

addressed and rejected in numerous prior capital murder cases.

We find no reason to modify our previously expressed views on

these issues. Clagett, 252 Va. at 85-86, 472 S.E.2d at 266-67.

IV.
JURY SELECTION

Lilly assigns error to the trial court’s refusal to allow

him to depart from the trial court’s approved list of questions

during voir dire. The record shows that the trial court and

counsel for the defense and the Commonwealth conferred

extensively in advance of the voir dire concerning the questions

to be asked of potential jurors. Lilly has failed to identify

any question he was not allowed to ask or to show that any

potential juror was not fully questioned. A party must have a

full and fair opportunity to examine the venire, but the trial

court retains discretion to determine when a defendant has had

such an opportunity. Buchanan v. Commonwealth, 238 Va. 389,

401, 384 S.E.2d 757, 764 (1989), cert. denied, 493 U.S. 1063

(1990). Lilly has failed to demonstrate that he was in any way

prejudiced by the trial court’s limiting of the questions which

could be put to prospective jurors, and we will not disturb the

trial court’s determination in this matter. Id.

7
 Lilly further asserts that the trial court erred in

refusing to permit him to “educate” the jurors on the issue of

parole ineligibility of defendants upon whom life sentences are

imposed in capital murder cases. He contends that the

requirement of Simmons v. South Carolina, 512 U.S. 154, 162

(1994), that the trial court instruct the jury on parole

ineligibility requires that the venire be informed on this issue

at the outset of trial and that individual jurors may be

questioned on their views of this issue. We disagree.

The clear import of Simmons is that, once a defendant is

convicted of a capital crime, he has, as a matter of due

process, the right to have the jury informed of his

ineligibility for parole in order that this factor may be

weighed by the jury against the finding of his further

dangerousness to society. Nothing in Simmons even remotely

suggests that knowledge of parole ineligibility rules and

exploration of potential jurors’ opinions on that subject would

be a proper topic for voir dire. 2 The probable confusion and

prejudice such an inquiry would cause in the minds of jurors is

self-evident. Accordingly, we reject Lilly’s contention that he

2
The record reflects that the jury was properly instructed
on parole ineligibility during the penalty phase of the trial
and that Lilly was permitted to argue that his parole ineligible
status militated in favor of a life sentence.

8
should have been permitted to “educate” and examine the venire

on this issue.

Lilly assigns error to the trial court’s dismissal for

cause of six members of the venire. Each of the prospective

jurors expressed strong moral or religious reservations about

her ability to impose a sentence of death. Three of the jurors,

Connie Huffman, Kristina Mitchell, and Ollie Jones, ultimately

agreed, but with some continuing equivocation, that they could

follow the trial court’s instructions.

In asserting that these jurors should not have been

excused, Lilly confines his argument to a discrete portion of

the examination of each of them. We must consider the voir dire

as a whole, not just isolated statements. Mackall v.

Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767 (1988),

cert. denied, 492 U.S. 925 (1989).

The trial court’s decision whether to strike a prospective

juror for cause is a matter submitted to its sound discretion

and will not be disturbed on appeal unless it appears from the

record that the trial court’s action constitutes manifest error.

Stockton v. Commonwealth, 241 Va. 192, 200, 402 S.E.2d 196, 200,

cert. denied, 502 U.S. 902 (1991). In the present case, the

trial court had the opportunity to observe each juror’s demeanor

when evaluating the juror’s responses to the questions of

counsel and the questions of the trial court. Nothing in the

9
record suggests that the trial court abused its discretion in

striking these jurors from the venire for cause despite the

attempts of the defense to rehabilitate them.

The trial court found that the other three prospective

jurors, Ann Mumaw, Leona Wallace, and Janet Matheson, were

adamant in their personal opposition to capital punishment and

could not impose a death sentence. Lilly contends that by

excluding them from the venire, he was denied the opportunity of

having a jury of his peers. Where a juror has clearly indicated

that she will be unable to follow the trial court’s instructions

and consider all the available penalties that might be imposed,

it is appropriate for the trial court to excuse the juror for

cause. Gray v. Commonwealth, 233 Va. 313, 334, 356 S.E.2d 157,

168, cert. denied, 484 U.S. 873 (1987). The elimination of such

jurors from the venire “does not violate the right of a

defendant in a capital case to be tried by an impartial jury

selected from a representative cross-section of the community.”

Id. at 335, 356 S.E.2d at 169; see also Poyner v. Commonwealth,

229 Va. 401, 413-14, 329 S.E.2d 815, 825 (1985).

Lilly assigns error to the retention of three members of

the venire over his motion that they be excused for cause.

James Rakes stated during voir dire that he was acquainted with

Chief Whitsett and that he might give more credence to

Whitsett’s testimony as a result. Upon further examination,

10
Rakes stated that he could set aside his acquaintance with

Whitsett and consider the testimony of all the witnesses on an

equal plane.

Samuel Shumate stated during voir dire that he was a second

cousin and “real good friend” of Investigator Ron Hamblin, a

prospective witness for the Commonwealth. Shumate testified

that his relationship and friendship with Hamblin would not be a

factor in considering Hamblin’s testimony against that of other

witnesses.

Lilly also asserts that an unidentified juror was permitted

to remain on the jury panel after having “read a newspaper

article about Mr. Lilly’s past.” Lilly initially objected to

the seating of any juror who had been exposed to specific

newspaper articles, and this assignment of error apparently

relates to a member of the venire who had read one of the

articles and was actually seated on the final jury panel. In

addressing the issue immediately prior to trial, the trial court

reiterated that it accepted the juror’s testimony that the

article had not prejudiced her.

As noted above, the decision to retain or excuse a juror

rests within the sound discretion of the trial court. Here, the

trial court had the opportunity to observe these three jurors

and evaluate their responses to the questions put to them.

Nothing in the record suggests that the refusal to strike these

11
jurors constitutes manifest error by the trial court, and we

will not disturb the trial court’s exercise of its discretion in

these instances. Stockton, supra.

Lilly further maintains that juror Shumate should have been

excused on the ground that Shumate was related to a “party” to

the suit. 3 Code § 8.01-358; Rule 3A:14(1). With respect to the

application of this rule in criminal cases, we have held that,

even though the victim is not a party to the proceeding, a

person is disqualified from serving as a juror if he is related

to the victim. Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690,

695 (1853); see also Gray v. Commonwealth, 226 Va. 591, 593-94,

311 S.E.2d 409, 410 (1984).

Lilly asserts that Investigator Hamblin is a “party” to

this criminal proceeding. Lilly apparently bases this assertion

on the fact that this officer’s role in the investigation of the

crimes in question was significant to the prosecution’s case.

Although we have not previously addressed this issue, we hold

3
The Commonwealth asserts that Lilly did not raise this
issue below and should be barred from raising it for the first
time on appeal. Rule 5:25. However, in noting his objection to
the trial court's retention of Shumate, Lilly's counsel stated,
“This is a relative and this is a friend.” “It is the duty of
the trial court, through the legal machinery provided for that
purpose, to procure an impartial jury to try every case.”
Salina v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199, 200
(1976). The objection noted the family relationship and was
sufficiently clear to raise the issue of whether the juror could
“stand indifferent to the cause.” Code § 8.01-358.

12
that when the officer’s sole role in a criminal prosecution is

as a witness, he is not a “party” within the meaning of Code §

8.01-358 and Rule 3A:14(1). Thus, a juror’s relationship to

such a police officer-witness does not require per se dismissal

of that juror from the venire, and the juror may be retained if

the trial court is satisfied that the juror can set aside

considerations of the relationship and evaluate all the evidence

fairly. See State v. Lee, 559 So. 2d 1310, 1317 (La. 1990);

State v. Hunt, 558 A.2d 1259, 1267-68 (N.J. 1989); Arner v.

State, 872 P.2d 100, 104 (Wyo. 1994).

V.
VENUE

After the jury panel was selected, the trial court, which

had deferred consideration of the motion, denied Lilly’s motion

for a change of venue made on the theory that pre-trial

publicity had potentially prejudiced the members of the venire.

The trial court noted that the selection of the jury panel had

not proved difficult, with fewer than half of the jurors stating

that they had heard or read about the case, and with none

showing particular bias as a result of the pre-trial publicity.

Lilly asserts that the trial court erred in not granting the

change of venue. We disagree.

A presumption exists that the defendant will receive a fair

trial in the jurisdiction in which the offense occurred.

13
Stockton, 227 Va. at 137, 314 S.E.2d at 379-80. In order to

overcome that presumption, the defendant must demonstrate that

the citizens of the jurisdiction feel such prejudice against him

that it is reasonably certain he cannot receive a fair trial.

Id. Accordingly, the decision whether to grant a change of

venue lies within the sound discretion of the trial court.

George v. Commonwealth, 242 Va. 264, 274, 411 S.E.2d 12, 18

(1991), cert. denied, 503 U.S. 973 (1992).

The fact that there have been media reports about the

accused and the crime does not necessarily require a change of

venue. Buchanan, 238 Va. at 407, 384 S.E.2d at 767-68. The

trial court should consider “the difficulty encountered in

selecting a jury” as a significant factor in determining whether

actual prejudice has resulted from the publicity. Mueller v.

Commonwealth, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992),

cert. denied, 507 U.S. 1043 (1993). The record here adequately

reflects that the trial court acted well within its sound

discretion in denying a change of venue in light of the ease

with which a qualified jury panel was selected.

VI.
GUILT PHASE

A. Commonwealth’s Use of Photographs and Videotape

During its opening statement, the Commonwealth displayed an

enlarged “in life” photograph of the victim to the jury. At the

14
conclusion of that opening statement, Lilly made a motion for a

mistrial, asserting that the photograph showing the victim alive

was inherently prejudicial because it tended to invoke sympathy

for the victim. The trial court found that there was no

prejudice to the defendant as a result of the use of the

photograph and overruled the motion, but directed that the

Commonwealth remove the photograph from further display. Lilly

assigns error to the trial court’s failure to grant a mistrial.

Lilly cites no authority for the proposition that

photographs of the victim taken before his death are inherently

prejudicial, an issue not previously addressed in this

Commonwealth. Those jurisdictions that have considered the

issue have held that there is no inherent prejudice in the use

of in life photographs of the victim, especially where the jury

will also view crime scene photographs showing the victim. See,

e.g., State v. Broberg, 677 A.2d 602, 610 (Md. 1996). Thus, the

use of in life photographs is a matter committed to the

discretion of the trial court unless clearly prejudicial. Id.;

State v. Brett, 892 P.2d 29, 41 (Wash. 1995); cf. Commonwealth

v. Story, 383 A.2d 155, 158 (Pa. 1978)(in life photographs of

victim with his handicapped daughter were prejudicial). We hold

that it was within the sound discretion of the trial court to

determine that Lilly was not prejudiced by the limited display

15
of the in life photograph of the victim, and we find no abuse of

that discretion in this instance.

Lilly assigns error to the admission of certain other

photographs and the trial court’s denial of his request that

black-and-white photographs be substituted for color

photographs. These photographs depicted the crime scene of the

murder, including graphic images of the victim.

A graphic photograph is admissible so long as it is

relevant and accurately portrays the scene of the crime. Clozza

v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984),

cert. denied, 469 U.S. 1230 (1985). The admission into evidence

of photographs of the body of a murder victim is left to the

sound discretion of the trial court and will be disturbed only

upon a showing of a clear abuse of discretion. Williams v.

Commonwealth, 234 Va. 168, 177, 360 S.E.2d 361, 367 (1987),

cert. denied, 484 U.S. 1020 (1988).

The record shows that the trial court reviewed the

photographs proffered as potential exhibits by the Commonwealth

and excluded the autopsy photographs, which it found excessively

graphic. We find no abuse of discretion in the admission of the

crime scene photographs, since these accurately depicted the

scene of the crime. Similarly, it was within the sound

discretion of the trial court to determine whether the probative

16
value of color photographs outweighed the potential prejudice of

their content.

Lilly also assigns error to the admission of a videotape of

the crime scene of the murder. Videotapes showing the crime

scene and the victim are admissible to show motive, intent,

method, malice, premeditation, and the atrociousness of the

crime. Spencer v. Commonwealth, 238 Va. 295, 312, 384 S.E.2d

785, 796 (1989), cert. denied, 493 U.S. 1093 (1990); Stamper v.

Commonwealth, 220 Va. 260, 270-71, 257 S.E.2d 808, 816 (1979),

cert. denied, 445 U.S. 972 (1980). If the videotape accurately

depicts the crime scene, it is not rendered inadmissible simply

because it is gruesome or shocking. Goins v. Commonwealth, 251

Va. 442, 459, 470 S.E.2d 114, 126, cert. denied, 519 U.S. ___,

117 S.Ct. 222 (1996). As with other photographic evidence, the

admission of a crime scene videotape rests within the sound

discretion of the trial court, and the trial court’s decision

will not be reversed on appeal absent a showing of abuse of that

discretion. Id. We find no abuse of discretion in the

admission of crime scene videotape here.

B. Admission of Mark Lilly’s Statement

At trial, Mark Lilly was called as a witness for the

Commonwealth, but invoked his right against self-incrimination

under the Fifth Amendment. Asserting that Mark Lilly was

unavailable as a witness, the Commonwealth sought to introduce

17
his pre-trial statements to police as declarations against his

penal interest. Lilly objected on the ground that these

statements did not fall within this hearsay exception because

they were self-serving and tended to exculpate Mark Lilly by

shifting responsibility to Lilly and Barker for the majority of

the criminal acts the three men committed.

In his statements, Mark Lilly contended that he stole only

liquor during the breaking and entering of the house of Lilly’s

friend, but that Lilly and Barker “got some guns or something.”

He further directly implicated Lilly as the instigator of the

carjacking, saying that Lilly “wanted to get him another car.”

In the statements, Mark Lilly directly implicated Lilly as the

triggerman in the murder and asserted that he and Barker “didn’t

have nothing to do with the shooting [of DeFilippis].”

To be admissible as a declaration against penal interest,

an out-of-court statement must be made by an unavailable

declarant. Ellison v. Commonwealth, 219 Va. 404, 408, 247

S.E.2d 685, 688 (1978). "The law is firmly established in

Virginia that a declarant is unavailable if the declarant

invokes the Fifth Amendment privilege to remain silent." Boney

v. Commonwealth, 16 Va. App. 638, 643, 432 S.E.2d 7, 10 (1993);

see also Newberry v. Commonwealth, 191 Va. 445, 462, 61 S.E.2d

318, 326 (1950).

18
 To be considered as being against the declarant’s penal

interest, it is not necessary that the statement be sufficient

on its own to charge and convict the declarant of the crimes

detailed therein. Chandler v. Commonwealth, 249 Va. 270, 278-

79, 455 S.E.2d 219, 224-25, cert. denied, 516 U.S. 889 (1995).

Rather, the statement’s admissibility is based upon the

subjective belief of the declarant that he is making admissions

against his penal interest and upon other evidence tending to

show that the statement is reliable. Id.

Lilly concedes that statements of a declarant unavailable

at trial are admissible if they qualify under the exception to

the rule for declarations against penal interest. He asserts,

however, that prior to Chandler, this exception was used only to

permit the introduction of exculpatory evidence proffered by the

defendant. In Lilly’s view, Chandler improperly enlarged the

exception to permit the Commonwealth to introduce statements of

a co-participant which, though nominally against penal interest,

actually seek to limit the declarant’s culpability by

implicating others, and, thus, are inherently unreliable.

Accordingly, Lilly urges that Chandler was wrongly decided and

should be overturned. We disagree.

We recognize that Ellison, Newberry, and other cases that

applied this hearsay exception prior to Chandler involved the

admission of such statements proffered by defendants for their

19
exculpatory value. However, as we said in Ellison, the

admission of such statements

must be left to the sound discretion of the trial
court, to be determined upon the facts and
circumstances of each case. But, in any case, once it
is established that a third-party confession has been
made, the crucial issue is whether the content of the
confession is trustworthy. And determination of this
issue turns upon whether, in the words of Hines [v.
Commonwealth, 136 Va. 728, 748, 117 S.E. 843, 849
(1923)], the case is one where “there is anything
substantial other than the bare confession to connect
the declarant with the crime.”

219 Va. at 408-09, 247 S.E.2d at 688 (emphasis added).

Thus, in determining the admissibility of a statement

against penal interest made by an unavailable declarant, whether

offered by the Commonwealth or the defendant, the crucial issue

to be resolved by the trial court is the reliability of the

statement in the context of the facts and circumstances under

which it was given. Here, the record clearly shows that Mark

Lilly was cognizant of the import of his statements and that he

was implicating himself as a participant in numerous crimes for

which he could be charged, convicted, and punished. Elements of

Mark Lilly’s statements were independently corroborated by

Barker’s testimony, by the physical evidence, and by the

correspondence between Mark Lilly’s account and the accounts of

other persons acquired by law enforcement authorities. Thus,

the statements were clothed in the necessary indicia of

reliability to overcome the hearsay bar, and their admission

20
rested well within the trial court’s sound discretion. That

Mark Lilly’s statements were self-serving, in that they tended

to shift principal responsibility to others or to offer claims

of mitigating circumstances, goes to the weight the jury could

assign to them and not to their admissibility.

Lilly further asserts that the admission of Mark Lilly’s

statements violated his right of confrontation since he was

denied the right to cross-examine the declarant. We disagree.

The right of confrontation is not absolute. A statement

sufficiently clothed with indicia of reliability is properly

placed before a jury even though there is no confrontation with

the declarant. Dutton v. Evans, 400 U.S. 74, 89 (1970).

[W]here proffered hearsay has sufficient
guarantees of reliability to come within a firmly
rooted exception to the hearsay rule, the
Confrontation Clause is satisfied.

. . . .

To exclude such probative statements under the
strictures of the Confrontation Clause would be the
height of wrongheadedness, given that the
Confrontation Clause has as a basic purpose the
promotion of the “‘integrity of the factfinding
process.’” . . . [A] statement that qualifies for
admission under a “firmly rooted” hearsay exception is
so trustworthy that adversarial testing can be
expected to add little to its reliability.

White v. Illinois, 502 U.S. 346, 356-57 (1992)(citations

omitted). As noted above, admissibility into evidence of the

statement against penal interest of an unavailable witness is a

21
“firmly rooted” exception to the hearsay rule in Virginia.

Thus, we hold that the trial court did not err in admitting Mark

Lilly’s statements into evidence. 4 See Randolph v. Commonwealth,

24 Va. App. 345, 353, 482 S.E.2d 101, 105 (1997); Raia v.

Commonwealth, 23 Va. App. 546, 552, 478 S.E.2d 328, 331 (1996).

Lilly further asserts that the Commonwealth was permitted

to play tape recordings of Mark Lilly’s statements to the jury,

whereas it had only supplied Lilly with transcripts of those

statements in response to Lilly’s discovery request. The record

reflects that the trial court offered defense counsel the

opportunity to review the recordings before they were played to

the jury. Assuming, without deciding, that the discovery motion

and subsequent order of the trial court required disclosure of

duplicate tapes rather than transcripts, we hold that Lilly was

not prejudiced by the failure of the Commonwealth to do so.

Having been supplied with accurate transcripts of the tape

recordings prior to trial and having had an adequate opportunity

to review them before they were played to the jury, there is no

reasonable probability that the proceeding would have been

different had duplicates of the tapes been provided to Lilly

4
Lilly further argues that he was unfairly prejudiced by the
comments of the police contained within Mark Lilly’s statements
which he contends placed emphasis on Mark Lilly’s truthfulness.
However, the record shows that the officers merely encouraged
Mark Lilly to tell them the truth.

22
prior to trial. See United States v. Bagley, 473 U.S. 667, 682

(1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d

159, 164 (1986); Briley v. Commonwealth, 221 Va. 563, 576, 273

S.E.2d 57, 65 (1980).

C. Admission of Lilly’s Statement to Chief Whitsett

Lilly assigns error to the admission of Chief Whitsett’s

testimony that Lilly said “me” when Whitsett asked Lilly “what

does a murderer look like anyway?” Lilly asserts that

Whitsett’s conversation with him constituted a custodial

interrogation prior to Lilly’s having been informed of his right

to counsel and his right against self-incrimination.

“Any statement given freely and voluntarily without any

compelling influences is, of course, admissible in evidence.

. . . Volunteered statements of any kind are not barred by the

Fifth Amendment.” Miranda v. Arizona, 384 U.S. 436, 478 (1966).

Lilly’s statement was clearly not the result of a custodial

interrogation in that he initiated the conversation and the

statement was voluntary. We hold, therefore, that the trial

court did not err in permitting this statement into evidence.

Massie v. Commonwealth, 211 Va. 429, 431-32, 177 S.E.2d 615, 617

(1970).

Lilly further asserts that Whitsett’s testimony was

unreliable since in preliminary testimony Whitsett testified

only that he “thought” Lilly had said “me.” Whitsett testified

23
at trial that he was certain of what Lilly said. Lilly was not

prohibited from cross-examining Whitsett concerning his

certainty as to the statement. Thus, it was a matter for the

jury to weigh and determine. Johnson v. Commonwealth, 224 Va.

525, 528, 298 S.E.2d 99, 101 (1982).

D. Miscellaneous Evidentiary Rulings

Over Lilly’s objection, Lieutenant Gary Price of the Giles

County Sheriff’s Office was permitted to testify that Lilly

declined to submit to a gunpowder residue test and then began

rubbing his hands together. Price testified that since he

believed a gunpowder residue test constituted a search requiring

a warrant or the consent of the suspect, he had informed Lilly

that the test was voluntary. Price further testified that

Lilly’s rubbing his hands together would get rid of gunpowder

residue.

Lilly concedes that he could have been required to take the

test. However, Lilly contends that, because he was told that

the test was “voluntary,” the evidence of his refusal amounts to

a use of a defendant’s silence as an admission of guilt.

We will assume, without deciding, that evidence of a

defendant’s refusal to submit to a gunpowder residue test after

having been informed, erroneously, that the test was voluntary,

is inadmissible as a violation of the Fifth Amendment right

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against self-incrimination. 5 Under the circumstances of this

case, however, that error was harmless beyond a reasonable

doubt. The record shows that Lilly fired one or more of the

guns taken in the breaking and entering prior to the murder.

Thus, the gunpowder residue test would have been positive for

that reason alone, and the jury was aware of that circumstance.

In addition, we hold that Lilly’s act of rubbing his hands

together in an apparent attempt to destroy any gunpowder residue

on his hands was a nonverbal act that went beyond the mere

refusal to submit to the test and, as such, was not subject to

exclusion under the right against self-incrimination. Accord

Salster v. State, 487 So. 2d 1020, 1021 (Ala. Crim. App.

1986)(defendant’s nonverbal conduct in secreting contraband was

not constitutionally protected); see also Stevenson v.

Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781

(1977)(nonverbal conduct may be treated as an assertion).

Lilly also assigns error to the admission of evidence that

dried blood was found on the back of his pant leg. Lilly

contends that the location of the bloodstain was inconsistent

5
See Herring v. State, 501 So. 2d 19, 21 (Fla. Ct. App.
1986)(informing defendant that gunpowder residue test is
voluntary permits defendant to refuse test). But see Wilson v.
State, 596 So. 2d 775, 777-78 (Fla. Ct. App. 1992)(criticizing
and distinguishing Herring); State v. Odom, 277 S.E.2d 352, 355
(N.C. 1981)(permitting evidence that defendant refused to submit
to gunpowder residue test without attorney present).

25
with its having resulted from the murder because the

Commonwealth alleged Lilly was facing the victim at the time

Lilly shot the victim. Lilly further asserts that no test was

conducted to determine whether the blood was of human origin,

and that it is as likely that this blood came from the geese

that the men shot earlier in the day. Therefore, he asserts

that the trial court abused its discretion in admitting this

evidence. We disagree.

The presence of bloodstains on Lilly’s clothing was

probative, however slightly, of his involvement in the murder.

The lack of a scientific determination that the blood was from a

human source was a matter of the weight and credibility, if any,

of that evidence for the jury to consider. The record does not

show that Lilly was prohibited from questioning the

Commonwealth’s witnesses on this matter. Accordingly, we hold

that admission of this evidence was not error.

Lilly objected to the introduction of the medical

examiner’s report on the ground that it contained references to

tests not performed by the proponent of the report. The

Commonwealth responds that the trial court excluded from

evidence a local medical examiner’s report, admitting only the

report prepared by the proponent or his staff. To the extent,

if any, that the contents of the report admitted fell outside

the exception to the hearsay rule provided for medical

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examiners’ reports under Code § 19.2-188, we hold that Lilly has

failed to show how any of that material was prejudicial and not

merely cumulative of properly admitted evidence, and that in

light of the other proof in the record, its admission was

harmless beyond a reasonable doubt. See Fitzgerald v.

Commonwealth, 223 Va. 615, 630, 292 S.E.2d 798, 807 (1982),

cert. denied, 459 U.S. 1228 (1983).

Lilly assigns error to the trial court’s refusal to admit a

statement made by Barker to a friend to the effect that Barker

would be able to kill his best friend and feel no remorse. The

record reflects, however, that Lilly initially objected to the

statement’s admission, then later sought its admission over the

Commonwealth’s objection. After the Commonwealth subsequently

withdrew its objection, the trial court reversed its ruling to

exclude the statement, but Lilly failed to recall the witness.

Accordingly, we hold that this issue was not properly preserved

for review.

E. Witness Sequestration Issue

Barker, who had not been present when the trial court

admonished the other witnesses to refrain from reading or

observing media reports about the trial, testified that he had

read a newspaper article the morning before he testified. The

trial court reviewed the article and questioned Barker, who

testified that nothing in the article affected his testimony.

27
Lilly assigns error to the trial court’s refusal to strike

Barker’s testimony.

Sequestration of witnesses is not a right, but a power

wholly within the discretion of the trial court. Hampton v.

Commonwealth, 190 Va. 531, 553-54, 58 S.E.2d 288, 297 (1950).

We cannot say that the trial court abused its discretion in

refusing to strike the evidence of a witness who was not aware

of the sequestration order and testified that the exposure to

the newspaper article did not affect his testimony.

F. Jury Instruction Issue

Lilly assigns error to the trial court’s refusal to grant

his proposed instruction on voluntary intoxication. The facts,

however, did not warrant the proposed instruction.

Generally, voluntary intoxication is not an
excuse for any crime. The only exception to this
general rule is in cases involving deliberate and
premeditated murder. Mere intoxication will not
negate premeditation. However, when a person
voluntarily becomes so intoxicated that he is
incapable of deliberation or premeditation, he cannot
commit a class of murder that requires proof of a
deliberate and premeditated killing.

Wright v. Commonwealth, 234 Va. 627, 629, 363 S.E.2d 711, 712

(1988)(citations omitted).

Here, Lilly was able to operate an automobile both before

and after the murder. During his flight immediately after the

murder, he committed robberies to facilitate his continued

flight and took steps to deliberately conceal his involvement in

28
the murder. All of these actions suggest that he was fully in

command of his faculties and acted with deliberation. Nothing

in the evidence suggests that he was so intoxicated as to be

unable to form the requisite intent to commit premeditated

murder. Accordingly, the trial court properly refused the

proffered instruction on voluntary intoxication.

G. Prosecutorial Misconduct

Lilly assigns error to the trial court’s refusal to grant a

mistrial after the Commonwealth’s Attorney allegedly pointed the

murder weapon at Lilly and his counsel during closing argument.

After making a cursory statement that the action of the

prosecutor was prejudicial, Lilly addresses the remainder of his

argument to the trial court’s statement, “[T]hat’s ridiculous.

[The gun is] not pointed at you . . . nor is it pointed at

anyone in this Courtroom,” contending that it was an intentional

disparagement of Lilly’s counsel. This argument was not raised

below, and may not be raised for the first time on appeal. Rule

5:25.

VII.
PENALTY PHASE ISSUES

Lilly assigns error to the trial court’s refusal to grant a

penalty phase instruction directing the jury to consider

“residual doubt” of guilt in considering the sentence. We have

previously held that such an instruction is inappropriate.

29
Stockton, 241 Va. at 211, 402 S.E.2d at 207. Lilly also sought

an instruction directing the jury to “impose the lower grade” of

punishment if there was a reasonable doubt as to the grade of

punishment to be imposed. The trial court properly ruled that

this instruction was both confusing and redundant of an

instruction already accepted by the trial court which directed

the jury that the Commonwealth was required to present evidence

beyond a reasonable doubt of the existence of one or both of the

aggravating factors necessary for imposition of the death

penalty.

VIII.
SENTENCE REVIEW

Under Code § 17-110.1(C)(1) and (2), we are required to

determine “[w]hether the sentence of death was imposed under the

influence of passion, prejudice or any other arbitrary factor”

and “[w]hether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.”

Lilly makes no particularized argument that passion,

prejudice, or any other arbitrary factor influenced the jury’s

decision, and we find nothing in the record that would support

such a finding.

In conducting our proportionality review, we must determine

“whether other sentencing bodies in this jurisdiction generally

30
impose the supreme penalty for comparable or similar crimes,

considering both the crime and the defendant.” Jenkins v.

Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036 (1993). We have examined the

records of all capital murder cases reviewed by this Court,

including those cases in which a life sentence was imposed. We

have given particular attention to those cases in which, as

here, the death penalty was based on both the “future

dangerousness” and the “vileness” predicates.

Based on this review, we conclude that Lilly’s death

sentence is not excessive or disproportionate to penalties

generally imposed by other sentencing bodies in the Commonwealth

for comparable crimes. See, e.g., Gray, 233 Va. at 354, 356

S.E.2d at 180; Stout v. Commonwealth, 237 Va. 126, 137, 376

S.E.2d 288, 294, cert. denied, 492 U.S. 925 (1989).

IX.
CONCLUSION

We find no reversible error in the judgment of the trial

court. Having reviewed Lilly’s death sentence pursuant to Code

§ 17-110.1, we decline to commute the sentence of death.

Accordingly, we will affirm the trial court’s judgment.

Affirmed.

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