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
24
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
26
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.
31