Home / Fulltext Opinions / Supreme Court of Virginia / LILLY v. COMMONWEALTH OF VA



April 17, 1998
Record Nos. 972385, 972386





Ray W. Grubbs, Judge
PRESENT: All the Justices

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



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

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 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.



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 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 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 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.



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 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.



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.

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

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



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. 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.
, 242 Va. 264, 274, 411 S.E.2d 12, 18 (1991), cert.
, 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.
, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992), cert.
, 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.



A. Commonwealth’s Use of Photographs and

During its opening statement, the Commonwealth displayed an
enlarged "in life" photograph of the victim to the
jury. At the 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.
, 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 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.
, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984), cert.
, 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.
, 234 Va. 168, 177, 360 S.E.2d 361, 367 (1987), cert.
, 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 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.
, 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.
, 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
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.
, 16 Va. App. 638, 643, 432 S.E.2d 7, 10 (1993); see
Newberry v. Commonwealth, 191 Va. 445, 462, 61
S.E.2d 318, 326 (1950).

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 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.
, 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

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 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 "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.
, 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
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

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 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

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
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 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 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.
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.
, 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 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.



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. 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.



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 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"

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



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.







[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] 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

[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.

[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.

[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).