Lilly v. Commonwealth

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

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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

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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

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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.

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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.

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 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.

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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

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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.

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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.

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 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,

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500 U.S. at 403, (quoting Chapman, 386 U.S. at 24). For these

reasons, I respectfully dissent.

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