Lilly v. CommonwealthLilly v. Commonwealth
Lead Opinion
delivered the opinion of the Court.
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,
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,
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,
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,
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
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,
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.
Notes
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.
Dissenting Opinion
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,
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 firearmf, and] illegal use of a firearm (except with respect to the use of a firearm to kill Alexander DeFilippis).”
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.
I recognize that the defendant could have been found guilty of these other crimes as a principal in the second degree, rather than as
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,
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,
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,
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,
At oral argument, he also conceded that he was guilty of murder.
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.
The defendant, Mark and Barker were arrested in Giles County and charged with two robberies that occurred there after the murder of DeFilippis.
Harrison v. Commonwealth, 220 Va. 188, 191,