*1 Benjamin Lee Virginia Commonwealth Record Nos. 972385 and 972386 November All the Justices Present: *3 Fried, Tuck; Saucedo; A. Leticia M. (Christopher Ira S. Sacks Harris, Jacobson, Frank, & Shriver briefs), on for appellant. Baldwin, (Mark Ear- R General L. Attorney Katherine Assistant General, brief), for ley, Attorney on appellee. delivered the of the Court. opinion
JUSTICE KOONTZ
of
to a
trial held
Circuit Court Montgomery
Pursuant
1996,
sen
in
Lee
was convicted and
Lilly (Lilly)
County
Benjamin
willful, deliberate,
of
death
and premeditated killing
tenced to
for
of
in violation of
Alexander V.
the commission
robbery
DeFilippis
558,
v.
In
Lilly
18.2-31(4).
Code
§
the trial court’s
and
judgment
S.E.2d 522
we affirmed
Thereafter,
Lilly
successfully
petitioned
death
sentence.*
The
a writ
certiorari.
Court of the United States for
of
Supreme
beyond
remand is whether
firearm in the
§§ 18.2-47
convictions
Accordingly,
ment,
convicted of
[*]
We also
Lilly’s
a reasonable doubt a
our
affirmed
counsel conceded
principal
felony,
18.2-58,
these
prior
offenses.
Code
decision
Lilly’s
offenses
unconstitutional
carjacking
§§
conviction for
18.2-53.1 and
affirming these convictions
Indeed,
and the
question of
of
Lilly
admission of
possession
untainted evidence
DeFilippis’
stresses on
18.2-308.2(A)(i).
whether Ben
abduction
of a firearm after
vehicle, Code
Mark
brief
and the
Lilly’s
Lilly
On brief and
robbery
sufficient
. . .
sentences
“[t]he
statements was
§
having
18.2-58.1,
was the
of
sole issue DeFilippis,
during
imposed
previously
sustain
triggerman.”
oral
harmless
use of a
thereon
Lilly’s
Code
argu
been
this
reversed a
our
that the
holding
Court
of
Supreme
portion
judgment,
at
of two
made admission into evidence
trial
confessions
Lilly’s
(Mark),
brother Mark
who refused to
violated
Lilly’s
Lilly
testify,
Sixth Amendment
to be confronted with the witnesses
right
against
Lilly
him.
v.
The standard that our of the error guides analysis harmless issue in this case is clear. “before a federal constitutional error harmless, can be held the court must be able to it declare belief that doubt;” was harmless beyond reasonable otherwise the conviction 18, under must set review be aside. Chapman California, 386 U.S. 24 (1967). This standard determination “whether there requires is a reasonable that the evidence possibility complained might have contributed to the conviction.” Id. at 23. In that deter making mination, factors, the reviewing court is to consider a host includ case, ing tainted evidence in the importance prosecution’s cumulative, whether that evidence was or absence presence evidence or corroborating the tainted evidence on contradicting mate rial overall points, strength case. Dela prosecution’s Arsdall, 673, ware v. Van (1986); U.S. see also Harrington v. California, Florida, 254 (1969); Schneble v. (1972) admitted evidence harmless (erroneously where it was cumulative of other evidence of merely overwhelming guilt).
We
recited
the evidence in the record in our
deci
prior
Rather,
sion and we need
it
here.
we will
repeat
focus on
facts that are
pertinent
our resolution of
In that
issue.
present
we
regard,
initially note that
order to convict
mur
*4
der and to
him to a
subject
death sentence for the murder of DeFil
the Commonwealth had the burden to
a
ippis,
reason
prove beyond
able doubt that
was the actual
the
Lilly
crime or
perpetrator
Commonwealth,
in the murder.
Graham v.
Va.
cert,
487, 492,
128, 130,
denied,
(1995);
464 S.E.2d
Commonwealth,
146, 155-56,
Johnson v.
220 Va.
255 S.E.2d
cert, denied,
The dent that the admission of Mark’s statements was harmless it doubt. of that assertion that Barker’s argues reasonable In support evidence, corroborated other by independent was We it is disagree. Mark’s material While every point. evi by true of Barker’s was corroborated other that much dence, criminal acts committed that evidence related to various Mark, the murder surrounding and Barker Lilly, leading up is that the Commonwealth’s argument fallacy it did not relate or corrobo this other evidence which relies upon Lilly, on the critical issue whether rate Barker’s Barker, Only the murder. triggerman to Mark or opposed corroborated as the triggerman Mark’s implicating statements *5 Thus, issue, that Barker’s issue. on that critical Commonwealth’s evidence was not overwhelming. where direct evidence
Clearly, against principal accused is the an of that wit accomplice, credibility ness will be a factor in the determination significant jury’s accused’s We level held that this culpability. consistently determination rests with the and is credibility jury not subject challenge because the is appeal merely self-serving, results from a favorable or plea arrangement, because the witness 78, 86, himself felon. See Joseph cert, 862, 867-68, denied, However, S.E.2d witness, here the issue is not the but rather the credibility for harm caused potential erroneous admission of evidence which tends to support jury’s credibility determination. In context we must that such evidence had presume potential influence the into admitted jury accepting evidence as properly and, thus, more credible to taint the determination the facts. jury’s This is the circumstance with we precisely which are faced in the harm of the considering erroneous admission of Mark’s state ments as the In implicating Lilly triggerman. the absence of these statements, Barker’s Lilly was triggerman the evidence that supported only by Lilly was present had to shoot It opportunity is therefore inconceivable that would not have weighed in Barker’s of the con light Moreover, evidence of Mark’s curring statements. those did, coming from brother they Lilly’s carried undoubtedly weight with the there is a jury. reasonable that those possibility state ments contributed to Lilly’s conviction for murder. Accord we ingly, cannot that the error say Mark’s statements admitting was harmless beyond a reasonable doubt. reasons,
For these we will affirm conviction abduction, carjacking, robbery, and the four charges, related firearm reverse Lilly’s conviction for murder and the related firearm charge, remand the case for new trial consistent with views herein expressed United States opinion Supreme Court, if the Commonwealth be so advised. —
Record No. 972385 Reversed and remanded. — Record No. part, Affirmed
reversed in part, and remanded. KINSER, with whom JUSTICE COMPTON joins, JUSTICE dissenting. notes,
As the affirmation defendant’s majority correctly *6 a reasonable doubt that the error convictions a belief requires beyond harmless. was Chapman doubt into
Because I believe reasonable that the admission beyond statements, error, evidence of Mark out-of-court while was Lilly’s “ that it not ‘contribute to the ver- harmless in did unfairly [jury’s] ” dict,’ Evatt, (1991) Chapman, Yates v. (quoting 24), I for 386 U.S. at would affirm the defendant’s convictions capi- use a firearm the of murder. capital tal murder and of commission the I reach this result because the defendant has conceded that into evidence of the statements was harmless challenged admission convictions, a fully error in the several related concession supported admission the claim the was record. his that of statements by not not harmless as the two convictions at issue here does simply brief, that he true. On the defendant stated “does ring specifically the of statements harmless Lilly’s that admission Mark was challenge abduction, car- error on convictions for robbery, [the defendant’s] firearmf, of a use of a firearm illegal (except jacking, possession and] with to the use of a firearm to kill Alexander DeFilippis).”1 respect The that the of brother’s defendant asserts admission his statements into evidence was not harmless error with his convic- only regard the of tions for murder and use of a firearm in commission capital that He the issue on remand as “whether murder. characterizes sole Mark harm- Lilly’s unconstitutional admission of statements was Lilly less a reasonable doubt on the of whether Ben beyond question . . . the triggerman.” was that the admission of Mark’s statements defendant’s position issue is
was not harmless error as to the “triggerman” predicated contention, that accepts, the defendant’s which majority upon since corroborated they statements influenced jury, improperly Barker, have caused may of thus Wayne Gary it might that was more credible than otherwise find Barker that should reverse The defendant contends this Court found. and the related firearms charge his murder convictions capital the testi- “the is left with with only because Commonwealth [sic] Ben Barker that was Gary triggerman,” of mony guilty argument, murder. At he also conceded that he was oral evidence is insufficient to make admission of Mark “[s]uch statements harmless reasonable doubt.” However, the defendant fails to that the evi- acknowledge only dence the elements of the offenses of abduc- carjacking, supporting tion, and the use of a firearm in the commission of those crimes Barker, also with admitted coupled erroneously words, statements of Mark.2 In other those stand charges same as the If evidentiary issue. Barker’s posture was sufficient to convict defendant of the numerous offenses for which he sentenced to life and the imprisonment, as to those offenses was not improperly supported concedes, admission Mark’s as the defendant I see why no reason the same is not true with to his convictions for regard and the murder related firearms charge. I defendant could have been recognize found guilty these other crimes as in the second rather than as principal degree, the actual and that he could have been found perpetrator, guilty if he were only DeFillipis “triggerman.” *7 However, that distinction does not the fact that the change only evi- abduction, dence the defendant’s for convictions supporting caq'ack- murder, and use of a firearm in ing, capital those committing Thus, offenses is the same. if the of admission into evidence Mark’s out-of-court statements is harmless error to of as the defendant’s any convictions, it be must harmless error as all his to of convictions. also
I believe that the focuses too majority on whether narrowly the admission of Mark’s statements the might affected jury’s carjacking eyewitnesses DeFilippis’ being related could tions dant was evidence conviction in admission of defendant’s car was abandoned. demonstrates that murder. [2] With For charge. except not defendant, However, example, linking the regard guilty hear was the roommate testified that those Mark’s to the that Barker’s uncorroborated to my anything of that to the discussion with the who had carjacking. testimony carjacking, defendant robbery statements only defendant’s charge that was evidence was pistol, of Barker, The same to that crime. Mark’s for the nor into evidence However, being that regard DeFilippis acknowledgement any were establishing DeFillipis said robbery forensic evidence to the analysis along alone outside the car. that by the use of a firearm in the commission was harmless error with either man. with Mark’s statements. There import took his shirt and shoes off when also that DeFilippis, was sufficient only that his car applies the defendant committed the crime of of the defendant’s was comment disappeared linking Thus, insufficient robbery to the Barker’s However, I the defendant will to convict that charge regard near the location where conviction was could to Mark stated that concession include prove of abduction. to all his convic- the defendant be construed were to that crime. is the sole that DeFilippis no robbery that of such proper defen other he as
556 determination, conviction, to the and thus contributed credibility issue in the whole record. light without at the looking 673, Arsdall, (1986) (“an other- v. 475 681 See Delaware Van be if court reviewing wise conviction should not set aside valid record, whole that the constitutional confidently may say, doubt”). The error harmless a reasonable defendant’s Whitsett after being statement to Police Chief Pearisburg shortly mur- that defendant “looked like a Giles apprehended County3 derer” that the defendant was lends credence Barker’s contends that this While the statement “triggerman.” majority murder,4 statement, viewed establishes of first only guilt degree Commonwealth, most favorable to the Horton v. Com- light 258, monwealth, 606, 608, (1998), 255 S.E.2d suggests Va. he had defendant believed he looked like a murderer because Indeed, who I believe that defendant trigger gun. pulled make, does understand or draw confesses murder not necessarily first and other of mur- types the distinctions between degree capital, could der the law the defendant’s statement recognizes. guilt being be considered an admission by properly Likewise, the defen- murder DeFilippis. that Mark was not “the one being dant’s statement after apprehended of the defendant’s wrong” that’s done really anything probative guilt. confession, defendant’s which
In addition to these trial, false at his contained a number of was introduced into evidence he that four or inconsistent statements. For stated people example, robberies, the Giles and he inconsis- gave were involved in County time he Mark and Barker tent information what regarding joined did the defendant the murder of evening DeFilippis. Notably, False or events involving not mention of the crimes any be Sheppard statements defendant may guilt. probative cert, Commonwealth, 379, 389, Va. S.E.2d denied, (1996); Black v.
842, 608, S.E.2d 610 284 whether, failed determine I conclude majority
Finally, fully “the of the cross-examination were potential even if damaging proposition robberies [3] Harrison majority, defendant, that occurred there after the murder v. only does not Mark support Barker Va. majority’s were arrested in Giles may 188, be 191, convicted position, DeFilippis. 257 S.E.2d but stands 777, County solely murder. charged the case cited established with two realized,” the verdict still have been the same. would Van jury’s Arsdall, at In 475 U.S. 684. cross-examination of Mark my opinion, this case would affected the adversely Barker. Defense counsel called Mark during sentencing phase There, the defendant’s trial. Mark was a wit- wholly unconvincing ness. In his haste to to retract his out-of-court statements attempt brother, he far went so to retract his implicating attempt However, claim that the defendant robbed nothing Mark’s statements had the defendant in the prior directly implicated commission of that crime. The fact that the sentenced the defen- dant to death after Mark’s retraction hearing lends further support “ conclusion that the ‘minds of an my would not have average jury’ found the case less had significantly persuasive” [Commonwealth’s] Florida, 427, Mark’s statements been excluded. Schneble v. (1972) (quoting Harrington California, 395 U.S. (1969)). Thus, I am convinced that the admission into evidence of Mark’s “
out-of-court statements did not ‘contribute to the unfairly [jury’s] ” verdict’ the defendant of convicting and use of a Yates, firearm in that murder. committing 500 U.S. at (quoting reasons, 24). 386 U.S. at Chapman, For these I dissent. respectfully