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LILLY v. COMMONWEALTH



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LILLY

v.

COMMONWEALTH


November 5, 1999

Record Nos. 972385, 972386

BENJAMIN LEE LILLY

v.

COMMONWEALTH OF VIRGINIA

Present: All the Justices

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.

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.
[1] Thereafter, Lilly successfully
petitioned the Supreme Court of the United States for a writ of
certiorari. The Supreme Court 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 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 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 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 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. 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.

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 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 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 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 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).

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, 500 U.S. at 403,
(quoting Chapman, 386 U.S. at 24). For these reasons, I
respectfully dissent.

 

FOOTNOTES:

[1] 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.

[2] At oral argument, he also
conceded that he was guilty of murder.

[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 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.

[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 established
proposition that only the "triggerman" may be convicted
of capital murder.

 

 

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