Appendix — Lilly v. Virginia

Supreme Court brief1999

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IN THE

Supeoye Court of the United States — ,TERIVED

HAND DELIVEREY

F | L = D VELIV

OCTOBER TERM, 1998

i a

~ Pe

Cen Ae otr =- 2 WG

BENJAMIN LEE LILLY.

Petitioner.

OFFICE. OF THE CLERK

SUPREME couRT, U.S.

— V

COMMONWEALTH OF VIRGINIA,

Respondent

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

Petition for a Writ of Certiorari to the

Supreme Court of Virginia

APPENDIX TO

NG. IF AND WHEN A

AT THE TIME OF FILMING PETITION FOR A WRIT OF CERTIORARI

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

IRA S. SACKS

(Counsel of Record)

HECTOR O. VILLAGRA

LETICIA M. SAUCEDO

DARCY M. GODDARD (not admitted)

FRIED, FRANK, HARRIS, SHRIVER

& JACOBSON

(A Partnership Including

Professional Corporations)

One New York Plaza

New York, New York 10004-1980

(212) 859-8000

ORIGINAL PAGINATION IS NOT CONTINUOUS.

Counsel for Petitioner

Table of Contents

Opinion of the Virginia Supreme Court

499 S.E.2d 52

22 (1998)

Pertinent Orders of the Circuit Court of Montgomery County

Virginia Supreme Court Order on Rehearing

Texts of Pertinent Constitutional Provisions.

Portions of Record Pertinent to Petitioner's Preservation

of the Federal Issues Raised in the Petition. Or Otherwise

Referenced in the Petition

Pertinent Portions of Trial Court and Appeal Record

Appendix

a (a,

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capital murder case; juror testified that

n relationship and friendship would not be

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199 SOUTH EASTERN REPORTER

Double

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Hiomiciac s]

jeopardy

ee ee ee eee ele ee ree

Courtroom until the jury gets out.

THE COURT: All right, Mr. Weaver, if

you’ll recess Court umtil 1:00. I£ you’ll just tell me

when they’re on the elevator.

THE COURT: . Mrs. Cole, for the record

that the response to the defendant’s motion is made

outside the presence of the jury. @entienen, in response

to the defendant’s motion and considering the arguments

herein, as well as the case law submitted by both

parties, the Court finds as follows:

The Commonwealth has the burden to prove the

unavailability of mask Lilly as a witness. Should the

-Commonwealth call Mark Lilly, if Mark Lilly is sworn and

if Mark Lilly takes. a seat in the witness box and

thereafter refuses to answer any questions asserting his

Fifth Amendment Right against self-incrimination, then in

those events, the Commonwealth has met its burden in

showing the unavailability of Mark Lilly as a witness.

If om the other hand the Commonwealth does not call Mark

Lilly as a witness, then her burden would not be met and

these statements will not be admitted pursuant to the

787

. 2226

hearsay rule. It’s well-settled in this Commonwealth

that a declaration. against penal interest is a

recognizable exception to the hearsay rule. However,

such a declaration is admissible only upon showing that

the declaration is in fact reliable. And in considering

whether or not such statements made by Mark Lilly to the

officers is reliable and trustworthy, the Court looks at

the evidence and exhibits before it and the facts and

circumstances of this particular case. In addition, the

Court further looks to examine whether there is any other

substantial link to commect Mark Lilly with the crime

other than the statements that are at issue here. In so

doing, the Court finds that Mark Lilly’s statements

weren’t against his penal interest and that they are

reliable and trustworthy. Further, the Court finds that

these statements do not violate the confrontation clause

when they are admitted as hearsay under the quoted

exception, which is firmly rooted. The Court will,

therefore, following the precedent established within

this Commonwealth, admit these statements in whole. If

you want to note your objections?

788

2227

or tC Met ble tee

ht taper

tine’

SR 02 er EO emp)

MR. TUCK: Your Honor, we would note

our objections based on the Sixth, Eighth and Fourteenth

Amendments based on the grounds that I have already

stated. We would also, it’s my itiainetiiien’ thes the

Commonwealth will be playing the tapes. If the Court

would, and I believe the Commonwealth would agree, we do

have copies of the transcripts of these tapes. We were,

they were never in the Commonwealth Attorney’s file and

they were not provided to us under discovery, the tapes

themselves, and we would object to the tapes being played

before the jury because we did not receive them and based

on Brady I believe we are required to receive them and we

would ask the Court not to allow them into evidence.

THE COURT: All right, sir. What I

will do, Mr. Tuck, is allow you time to review the

transcript.

MR. TUCK: | Your Honor, the transcripts

is one thing, but the voice inflections as far as on the

tape they may have been exculpatory, they may be

exculpatory, I don’t know. The Commonwealth I do not

believe ever had these in his possession, but as the

789

2228

oe enone

VIRGINIA:

Sou the Saprome boul off Veginia hold. at the tuprome Court Louuildirg am the

bly of Ruhmendan Friday Ms Sth deyof June, 1998. ~

Benjamin Lee Lilly, Appellant,

against Record Nos. 972385 and 972386

Circuit Court No. 13636

Appellee.

Commonwealth of Virginia,

Upon a Petition for Rehearing

On consideration of the petition of the appellant to set

aside the judgments rendered herein on the 17th day of April, 1998

and grant a rehearing thereof, the prayer of the said petition is

denied.

Clerk

: _ IN VIRGINIA:

CONSTITUTIONAL PROVISIONS INVOLVED ’ IN THE CIRCUIT COURT OF MONTGOMERY COUNTY

1. The Sixth Amendment to the United States Constitution provides: COMMONWEALTH OF VIRGINIA )

In all criminal prosecutions, the accused shall enjoy a

the right to a speedy and public trial, by an impartial jury of ) Motion In

the State and district wherein the crime shall have been v ) Limine

ascertained by law, and to be informed of the nature and | _ BENJAMIN LILLY )

cause of the accusation; to be confronted with the witnesses Defendant )

against him; to have compulsory process for obtaining y

an aa in his favor, and to have the Assistance of Counsel i Comes Now the Defendant, Benjamin Lilly, by and through

or his defence.

U.S. Const. Amendment 6 counsel, pursuant to the 6th, 8th, and 14th Amendments of the

Constitution of the United States, and asks this Court for an

Sect hs , ted ?

- on 1 of Ge F Sots . order precluding the admission of the statements of Mark Lilly

Constitution provides:

; : : that were given to Investigator Gary Price of the Giles County

1. All persons born or naturalized in the United States, |

and subject to the jurisdiction thereof, are citizens of the Sheriff's office, should Mark Lilly be unavailable to testify,

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its ‘

jurisdiction the equal protection of the laws. sixth amendment, through the fourteenth amendment, right to

_ based on the following grounds;

1) Admission of said statements would violate the Defendant's

U.S. Const. Amendment 14, § 1. cross-examine one of the alleged accomplishes about a purported

confession. DOUGLAS v ALABAMA, 380 U.S. 415, 1964, BRUTON v

UNITED STATES, 391 U.S. 123, 1968, CRUZ v NEW YORK, 461 U.S. 186,

1986.

YANG ] v

abe Sitagy ts PMD WD

NYT

2) Admission of said statement would violate the Defencant's 6th

—pt/ W130 Fs OP,

"Sth and 14th amendment rights because the statements that Mark

“Lilly gave would not conform to any hearsay exception, namely

“Vr

113 ‘34

‘ ageinst his penal interest, because they are not reliable due to

—_——_—<—

2%)

is 52

“pment

A. Thank you.

: well as your grounds and argument, Mr. Tuck.

THE COURT: rf you’ 11 go with Mre.

MR. TUCK: Your Honor, we believe that

Skidmore.

the Commonwealth will be calling Mark Lilly to the stand.

THE COURT: Your next witness, Mr.

| He may or may not take the Fifth Amendment because some

Schwab. | ; °

of his statements might incriminate him. That question,

MR. SCHWAB: Your Honor, before we call

if he does not take the stand, it is our understanding

our next witness, the Court has to rule

on some prior

that the Commonwealth intends to simply introduce

motions.

transcripts that conspired or, between police officers

THE COURT: All right, sir. |

| and statements made by Mark Lilly. We believe that it’s,

MR. SCHWAB: And I believe it would be

if that is done that that will violate the confrontation

a good time for the jury to take another break.

| clause of the Sixth Amendment 4s guaranteed to all

THE COURT: All right, sir. Mrs. %

citizens through the Fourteenth Amendment of the United

Skidmore, lets adjourn for about twenty minutes. |

States Constitution. Ben Lilly has 4 right to look at

BAILIFF WEAVER: Court is in recess for 4

his accusers in the face and the jury has the ability to

twenty minutes.

look at his accusers in the face and see, and, and the

THE COURT: Before the Court is the '

: jury has the ability to look at that person and see if

defendant’s motion in limine concerning statements made :

they’ re telling the truth. Clearly, if that is done,

by Mark Lilly to certain investigators outside the

these statements are entered, then he will not have the

presence of the defendant. If you want to restate your ‘

ability to confront his accusers. Your Honor, we will

motion for the record, it has been filed I understand,

wan that

but if you t to restate your motion for the record, as not have the ability to ask Mark Lilly why he says

u ° :

the shooting took place ten to fifteen yards away and

772

773

2211

2 zzr1e

Gary Barker said they took place point blank. z won’t

have anybody to cross-examine. Your Honor, he indicates

in one of his statements that he had money in his pocket

and he could have paid for the beer that was done and

that he didn’t need to rob it. But in the other

statement that he gives to Officer Hamlin, he says, no,

I don’t have, I, we, were broke. Clearly, these

statements have inconsistencies. They are self-serving

as well. If you look at the motion that I filed with the

Court, he indicates he was so drunk he doesn’t remember.

That it wasn’t he, ah, that, ah, did anything wrong, it

was Gary Barker and Ben Lilly doing things wrong

throughout the course of this evening. He says he was so

drunk he doesn’t remember. At any key point, did you

know that they were going to go in and rob it? No, it,

or it was their decision. I had money to pay for it.

Did you know, did you handle the guns that evening? No,

and the Court’s already seen evidence that the pistol was

seventy-five feet down behind the car. It had to get

there somewhere, Your Honor, and Gary Barker has already

testified that he didn’t take it down there, so this is

774

2213

t t : P

Lilly is trying t° pu

in this case

ted and not doing anything wrong

intoxicate i

, exclusion

That is not an acceptable, ah

whatsoever - om

be against

nfrontation clause. It has to

e co

no nts that he has given

teme

own penal interest and the sta 7

t talk 4

way from the crime. They do mo

far @

3 ut Montgomery

hat he did. What did he do in

the fact tne thd

t had to get in the car because

Well,

County? ve

ot tha

jan’t want to get left behind. N

a ’

ame nsistent

i on. Which ig totally inco

knew what was going a

G b ) , :

’ I

° cross-examine and

we won't be able t

in that stand, wid

that’s why i pene

I won’t be

my:

discrepancies in their testimony

‘s :

oe ou possess this money clip

able to ask Mark Lilly. aid y et

° ave

le to do that because I don’t h

’ °

sae Se 4 that right if

t has been denie

ien

to confront him. My cl

775

oe 221%

the Court rules against us. That’s why it’s

important.

talking about whether a man lives or dies.

a shoplifting case and I am asking this Court,

statements out. Thank you, Your Honor.

THE COURT: Thank you, Mr. Tuck.

me ask you a question. What is your argument if Mr.

Lilly, I’m talking about Mark Lilly,

MR. “TUCK: Yes, Your Honor.

THE COURT: If he is available, the

Commonwealth calle him as a witness, he is sworn, he is

seated in the witness chair, and then he takes the Fifth

Amendment against self-incrimination. Where is your

argument as to whether such circumstances make him

unavailable?

MR. TUCK: According to Virginia case

law and Federal case law, that would make him or deem him

to be unavailable. However, Your Honor, we believe that,

frankly, we believe that the Virginia State Supreme Court

776

We’re talking about a murder trial and we’re

This is not

I am

imploring this Court allow us the right to confront the

witness and if we don’t have that right, then to keep the

Let

2215

whole

ng It ruled in it’s evidence that this, the

is wrong:

statement could come in. Not just the statements against

their penal interest, but the whole statement. r= you

look at the way the Federal courts interpret their own

rules of evidence and the way that they have interpreted

the confrontation clause, they only are allowed to look

at the statements that incriminate them and if they get

up, because that’s where the reliability is. If Mark

Lilly would have gotten Up and said, r did something

wrong here, that portion of the statement can come in.

r did something wrong, but that’s not what, that’s not

what the Commonwealth I, we believe again, that’s not why

they’ re going to be offering it. They’re going to want

to be offering it for the truth of the matter that Ben

we're

Lilly did something wrong and when that is done,

talking about how, how, anything rt say, if t got up in my

opening argument OF in closing argument and say, Mark

Lilly says it’s thirty, ten yards, fifteen yards, that

would be thirty t° forty-five feet and Gary Barker a

our Honor,

that it’s, ah, ah, point blank range: Y

ing that I say

t have anybody to cross-examine. Anything

don’

777

cae

is not evidence. I don’t have anybody, any way of

pointing that out because there is no one on the stand

for me to cross-examine.

THE COURT: ~ Thank you, Mr. Tuck.

MR. JENKINS: Your Honor, c*’ ald I just

give the Court a couple of cases I think will be on -

THE COURT: Mr. Tuck may insofar as

this motion is concerned.

MR. TUCK: Your Honor, I -

MR. JENKINS: Okay.

MR. TUCK: Omitted just for the record

Douglas v. Alabama, -

THE COURT: ~ And that has already been

submitted and reviewed by the Court -

MR. TUCK: I believe that’s correct.

Brutan v. United States -

THE COURT: That has been submitted and

reviewed by the Court.

MR. TUCK: I believe Crews v. New

York. I also believe I had submitted to the Court two

| other cases. That was an Idaho v. Wright and just to

778

| yan?

briefly discuss Idaho v. Wright, Your Honor, while we’re

talking about some of the case law, that case was,

involves a rule in Idaho that said there is a general

hearsay that if it’s reliable, the Court can have, let it

in. And the Supreme Court said that’s mot a well-founded

reason. One of the defendants objected as to hearsay.

That defendant is still incarcerated. The other

defendant objected as to the Sixth Amendment right to

confrontation. The Supreme Court overturned that

person’s conviction is my understanding.

THE COURT: All right. Thank you, Mr.

Tuck. Mr. Schwab, any response to the defense’s

argument?

MR. SCHWAB: Well, Your Honor, assuming

that Mark Lilly will be unavailable because he takes the

Fifth Amendment, his Fifth Amendment rights and refuses

to be compelled to testify on matters that may

incriminate him. The Commonwealth’s view of the law is

that while the defendant has a Sixth Amendment right it

has been consistently held that that right does not

override everything else, including and mentioned

779

2218

specifically in the Idaho v. Wright that it ‘doesn’t

override and they have refused to say that it will

override other exceptions in evidence. They, the rule

essentially is that evidence primarily of co-defendants

in this case, well, let me back up, the rule is, matters

may come in the Court that would violate the Sixth

Amendment Confrontation Right if there is, in their

terms, a well-rooted basis for admission of hearsay and

that was pointed out several times in the Idaho case

because the Idaho case involved a statutory residual

hearsay. That’s what the case was about as the Court

knows. That’s ant i argument was over and the Supreme

Court of the United States in that case held that

residual hearsay was not sufficient enough to be what

they called a well-rooted exception to the hearsay rule.

In this case, it has been held for years and years in

this jurisdiction as well as others and as Mr. Tuck

pointed out, it is admissible even under the Federal

Rules of Evidence for statements against penal interest.

We would submit to the Court that that is a well-rooted

basis for admission of hearsay. The Virginia Rule is

780

2219

po ea. ne

prosecut?

if he 18

hearsay

would no

current

ruling

eing

on. tat »

which would

The court hes

chandler case wh

ich aiscusset

+g penal

ae qgainst s pere™

confessio™

s ong as 4

st would appe?* —

an exception ©° oi

Liow those S**

onal rights be

tell, the v

cements in 3

t violate his constitu

as far as 7 o™

ta state wel

on whether > as

sed on the

that

wee a?

confrontation clause and if Ir remember correctly, they

ruled only that part of the statement could come in under

the Federal Rvles of hearsay. They did not make the

Federal Rules of Evidence due process requirements upon

all the states of the United States of America. Only in

their Courts where their rules were they said that’s the

rule they will use and how they will allow the

information in concerning that hearsay exception and the

current state of the law is that it’s admissible and one

other thing I’d like to say, Judge, that I’m sorry that

the law of this Commonwealth should be different for

murderers than for shoplifters, but I believe it should

be the same no matter what the case is and it should not

be argued or ruled upon by the Court simply because it’s

@ murder case rather than a shoplifting, you ignore the

current state of the law.

THE COURT: All right, Mr. Schwab. Let

me ask you the same question that I asked Mr. Tuck. What

is your argument as to whether or not Mark Lilly is

available if, in fact he’s sworn, takes the witness stand

and responds, ah, by taking the Fifth Amendment against

782

2221

self-incrimination. What is your opinion as to whether

or not in terms of Virginia president, precedent that he

is available or unavailable?

MR. SCHWAB: I cannot point to anything

in the two cases I provided you, but it is ny

understanding of the law that one of the ways, although

it y have been in FRIEND, I believe, noted with a

dment

citation that if a person does take the Fifth Amen

and cannot be compelled to testify, then that person is

unavailable, ah, for testimony.

THE COURT: All right, sir. Thank you.

Mr. Tuck, you have the burden on this motion, so I’1l let

you -

MR. TUCK: Your Honor, actually 17

believe that you, I, while we’re making the Motion in

Limine, I believe the burden always remains on the

Commonwealth.

THE COURT: Well, the burden is on the

commonwealth, but what I meant to say ism you, you are

Cc ’

making this motion.

MR. TUCK: Your Honor, one of the

783

— —

ge22

points that the Commonwealth brought up is this

declaration against penal interest. Where is this a

self-serving statement? Look at the, we’re here for a

charge of capital murder, abduction, robbery. Look at

the statements as to those events and it don’t

incriminate him. He says he goes along just because he

was drunk and didn’t want to be left behind. He really

didn’t know what he was doing. Look at the statements

that he gave. Is that the same reliability that the

Commonwealth that, that even the Virginia fupreme Court

cases have said, there has to be some reliability here

before we’re going to let a hearsay statement in and

trample over the defendant’s rights and when you start

looking at the, he made statements, he didn’t, ah, he

can’t remember if he had any guns or not because he was

too drunk. Ah, he gives, we know that at one point in

time that he, he mentions that the fact that he didn’t

indicate he wanted to commit any robberies. That it was

just they wanted to do it. He, he keeps pushing the

blame away from himself and that’s not a declaration

against the penal interest. That’s a self-serving

784

pecaus

one is unconscious or

gome

nis

would be a violation of

Thank you: your

Mr Tuck. we’ ii

sider your

ae ee

PUPA CE EANETE Fb EEL DS) ALT EA Rites Ce

Courtroom until the jury gets out.

THE COURT: All right, Mr. Weaver, if

you'll recess Court until 1:00. If you'll just tell me

when they’re on the elevator.

THE COURT: . Mrs. Cole, for the record

that the response to the defendant’s motion is made

outside the presence of the jury. eontienen, in response

to the defendant’s motion and considering the arguments

herein, as well as the case law submitted by both

parties, the Court finds as follows:

The Commonwealth has the burden to prove the

unavailability of mask Lilly as a witness. Should the

Commonwealth call Mark Lilly, if Mark Lilly is sworn and

if Mark Lilly takes. a seat in the witness box and

thereafter refuses to answer any questions asserting his

Fifth Amendment Right against self-incrimination, then in

those events, the Commonwealth has met its burden in

showing the unavailability of Mark Lilly as a witness.

If on the other hand the Commonwealth does not call Mark

Lilly as a witness, then her burden would not be met and

these statements will not be admitted pursuant to the

787

——

hearsay rule. It’s well-settled in this Commonwealth

that a declaration. against penal interest is a

recognizable exception to the hearsay rule. However,

such a declaration is admissible only upon showing that

the deciaration is in fact reliable. And in considering

whether or not such statements made by Mark Lilly to the

officers is reliable and trustworthy, the Court looks at

the evidence and exhibits before it and the facts and

circumstances of this particular case. In addition, the

Court further looks to examine whether there is any other

substantial link to connect Mark Lilly with the crime

other than the statements that are at issue here. In so

doing, the Court finds that Mark Lilly’s statements

weren’t against his penal interest and that they are

reliable and trustworthy. Further, the Court finds that

these statements do not violate the confrontation clause

when they are admitted as hearsay under the quoted

exception, which is firmly rooted. The Court will,

therefore, following the precedent established within

this Commonwealth, admit these statements in whole. If

you want to note your objections?

788

Supreme Court of Virgini ginia

AT RICHMOND

RECORD NO. 972385

BENJAMIN LEE LILLY,

Appellant,

COMMONWEALTH OF VIRGINIA,

Appellee.

OPENING BRIEF OF APPELLANT

Max Jenkins

JENKINS & JENKINS

Post Office Box 836

Radford, VA 24141

(540) 639-9083

Christopher A. Tuck

ATTORNEY AT LAW

ee ————————_—_—_——————

LAWYERS PRINTING COMPANY 71h & Franklin Bidg. Richmond, Virginia 23218 (804) 648-3664

TABLE OF CONTENTS

Table of Contents. ....cseecececcrererenanesseseeces

Table of Cases/Citations/Authorities........+++++-.

Statement of The Nature of the Case......sseeeeess

Statement of Facts

Amended Assignment Of EBLrOr...seeeseescesereencees

Questions Presented and Arguments in Support......

COMCLUBION..cccccccccccsccccssesesesssessessssssss

| C@rtilicate...cccccccccccssssssessssssessssssseses

Page(s)

TABLE OF CASES/CITATIONS/AUTHORITIES PAGES

Barnabei v Commonwealth, 252 Va. 161, 477 S.E.24 270 (1996) 13

Beard v Commonwealth, 248 Va. 68, 445 S.E.24 670 (1994) 19

Breeden v Commonwealth, 217 Va. 297, 227 S.E.2d 734 (1976) 16

Buchanan v Commonwealth, 238 Va. 389, 384 S.E.2d 757 (1989) 14

Chandler v Commonwealth, 249 Va. 270, (1995) 28, 29, 30, 32

Chambers v Mississippi, 410 U.S. 284, S.Ct. 1039 (1973) 31

Coe v Commonwealth, 231 Va. 83, 340 S.E.24 820 (1986) 26

Compton vy Commonwealth, 190 Va. 48 (1949) 43

Crane v Kentucky, 476 U.S. 683 (1986) 23

| Ellison v- Commonwealth, 219 Va. 404, 247 S.E.24 685 (1978)

29, 31, 33

| Escobedo v Illinois, 378 U.S. 478 (1964) 27

| Gardner v Florida, 430 U.S. 349 (1977) 19, 23

Goss v Lopez, 419 U.S. 565 (1975) 19

| Hines v Commonwealth, 136 Va. 728, 117 S.E. 843 (1923) 29, 30

Jones v Commonwealth, 196 Va. 10, 82 S.E.2d 482 (1954) 38

Lankford v Idaho, 500 U.S. 110 (1991) 19, 23

| Lockett v Ohio, 436 U.S. 586, 604 (1976) 19

Lockhart v McCree, 476 U.S. 162 (1986) 44

Maynard v Cartwright, 486 U.S. 356 (1988) 24

McClane v Commonwealth, 202 Va. 197, 111 S.E.2d 274 (1960) 38

Mickens v Commonwealth, 247 Va. 395, 442 S.E.2d4 678 (1994) 19

Newberry v Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950) 30

Randolph v Commonwealth, 24 Va. App. 345 (1997) 29

Riner v Commonwealth, 145 Va. 901, 134 S.E. 542 (1926) 22

Sanderson v Commonwealth, 200 Va. 51, 103 S.E.24 800 (1958) 44

Shell _v Mississippi, 498 U.S. 1 (1990)

Simmons v South Carolina, 114 S.Ct. 2187 (1994)

Strickler v Commonwealth, 241 Va. 482, 404 S.E.2d 227 (1991)

Wright v Commonwealth, 73 Va. (32 Gratt.) 941 (1879)

CODE

Code

Virginia,

OF VIRGINIA, AS AMENDED 1950

Amended

1950,

iii

Section

8.01-358

19.

-2-230

.2-251

-2-266.2

-2-264

2-231

2-264.4

STATEMENT OF THE NATURE OF THE CASE

AND MATERIAL PROCEEDINGS

Appellant received the death penalty in this Capital turder

case. He and two others, including his brother Mark Lilly, were

charged with several crimes. The Appellant was charged with being

the trigger man in the robbery and murder of Alexander

DeFillipis.

Appellant's brother, Mark Lilly, who was brought in as @

witness without being given immunity, refused to testify,

asserting his 5th Amendment right. His statements to police would

later be read to the jury. Moreover, Mark Lilly would later admit

under oath that he had lied to police.

At trial, certain objections and exceptions were made by the

defendant. The defendant alleged error from the selection of

certain jurors; error in the display by the Commonwealth at -

counsel table a photograph of the victim in life; error by the

Commonwealth's Attorney in his closing argument by pointing the

mucder weapon toward defense counsel and Appellant; the admission

of two hearsay statements of Appellant's brother after the

assertion of the brother's 5th Amendment rights.

The two statements made by Appellant's brother contained

much more than a declaration against the interest of the brother.

The statements introduced and approved by the Court contained

statements by police officers that they in effect did not believe

that Mark Lilly had killed DeFillipis, but that they believed in

fact that Appellant was guilty of the murder. Obviously, this is

an opinion as to the innocence or guilt of Appellant, Benjamin

7 -—_——sS Cl

—————e

Lee Lilly, and is not admissible.

STATEMENT OF FACTS

At the start of this trial, the Commonwealth displayed in

full view of the jury 4 framed portrait of the victim in life.

After the Court ruled that the Commonwealth should not have

placed the photograph, 4 motion for mistrial was denied.

The evidence most favorable to the Commonwealth indicates

that the Appellant, his brother Mark Lilly, and Gary Barker

burglarized a home in Floyd County, Virginia and thereafter

travelled to Radford, Virginia to the home of a friend, where

personal property taken from the burglary was divided. All three

men were drinking heavily. The Court would refuse an instruction

on voluntary intoxication.

After travelling to several places within Montgomery County,

Virginia, the automobile in which the three were travelling

became disabled near & convenience store, Hethwood Express, in

Blacksburg, Virginia.

The murder victia, Alexander DeFillipis, had driven 4 friend

to the convenience store. The evidence indicates that while

DeFillipis' friend was inside the store, the Appellant carjacked

the vehicle and, along with Mark Lilly and Barker, took Alexander

DeFillipis with them to a secluded spot in Montgomery County,

Virginia where the three forced DeFillipis to disrobe. Shortly

thereafter, DeFillipis was shot three times in the head, killing

him instantly.

The three travelled from the scene of the murder to

4 _ ' =~ % |

% Lilly aa¢

Eggleston, Virginia and Pembroke, Virginia, where they robbed two “

stores. The three were apprehended after the robberies; Barker ia wale Geel + of Mark Lilly contained statements

Gary Bar . =

and Mark Lilly unsuccessfully attempted to flee from police.

the police (giving opini

ons of defendant's guilt),

A portion of the Commonwealth's evidence consisted of blood

found on the back of Appellant's pants leg, which could not be | _. of Mark Lilly named appellant ©

llipis 9°-

determined to be of human origin. Appellant objected to the | aamhciatind

trigger man, pl

admission of a statement allegedly made by Appellant to Chief |

Whitset. | ene refused to give an instruction on voluntary

Appellant objected also to evidence being introduced The Court 418° lee ce lias se the Jury nad 8

regarding his refusal to participate in 4 paraffin test after he intoxication - 20h to punishment (life oF death), they hac *°

had been advised erroneously by investigating officers that reasonable squire de of life imprisonment.

participation was voluntary. a, oedipal also implicates Appellant as the

Gary Barker's testimony

Objection was also made to the admittance of the medical \\

\\ trigger ™an-

report as evidence on the grounds that it was hearsay and that \ puring closing arguments, the Commonwealth's rage ip

the medical examiner appeared in court and had testified to the sik Telia vespen 6 the direction of defense ©

jury concerning items in the report. pointed sei wes requested, but again refuses

Objection was also made to one of the Commonwealth's chief appellant: _

witnesses, co-defendant Gary Barker, having read prior newspaper |

articles that the Court ordered witnesses not to read. (Barker |

was not present when this admonishment was given.)

The main evidence linking the Appellant to the crimes was

co-defendant Gary Barker and two taped statements of co-defendant

Mark Lilly, Appellant's brother. The Court ruled that Mark

Lilly's assertion of his 5th Amendment rights resulted in his

being unavailable. Objection was made to the taped statements in

which Mark Lilly told an inves<sigator, “we had nothing to do with

3 | 4

BENJAMIN LEE LILLY,

Appellant

Record No. 972386

COMMONWEALTH OF VIRGINIA,

Appellee

et et Cet et et et eet eet Set ee

Now comes the Appellant and pursuant to Rule 5:22 of the

Rules of the Supreme Court of Virginia and assigns @s error the

following:

ASSIGNMENTS OF ERROR

1. The trial court erred when it refused to seat Ms. Huffman as

a potential juror in violation of the Defendant's rights és

guaranteed by the fifth, sixth, and fourteenth Amendments to

ee United States Constitution. Transcript Volume 2, Page

18-153.

2. The trial court erred when it refused to seat Janet Matheson

on the ground that she indicated that she probably could not

impose the death penalty in violation of the Defendant's

rights as guaranteed by the fifth, sixth, and fourteenth

Amendments to the United States Constitution. Transcript

Volume 2, Page 330.

3. The trial court erred when it refused to seat Kristine

Mitchell when she indicated that she could follow the law

and impose the death penalty. That said error violated the

Defendant's rights as guaranteed by the fifth, sixth, and

fourteenth Amendments to the United States Constitution.

Transcript Volume 2, Pages 390-418.

4. The trial court erred when it refused to allow defendant's

Counsel to explore questions outside of the approved list

violating the Defendant's rights as guaranteed by the fifth,

sixth, and fourteenth Amendments to the United States

Constitution. Transcript Volume 2A, Page 501-526.

5. The trial court erred when it sat James Rakes 45 4 juror

when he indicated he would believe Chief Whitsett more than

other witness because he knew Chief Whitsett, in violation

of the Defendant's rights as guaranteed by the fifth, sixth,

10.

11.

12.

and fourteenth Amendments to the United States Constitution.

Transcript Volume 2A, Pages 576-605.

The trial court erred when it sat Samuel Shumate as 4

potential juror when Mr. Shumate stated that he was a second

cousin to an investigator, Ron Hamlin, who was involved in

the case and whom the defense stated that they intended to

attack, and Shumate considered Mr. Hamlin to be 4 "real

close friend"; said error violated the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments to

the United States Constitution. Transcript Volume 2A, Pages

606-626.

The trial court erred when it refused to seat Leona H.

Wallace as a potential juror in violation of the Defendant's

rights as guaranteed by the fifth, sixth, and fourteenth

Amendments to the United Stated Constitution. Transcript

Volume 2A, Pages 645-656.

The trial court erred when it refused to seat Ollie ™. Jones

when Ms. Jones clearly stated that she could follow the law.

That said error violated the Defendant's rights 4s

guaranteed by the fifth, sixth, and fourteenth Amendments to

the United States Constitution. Transcript Volume 2B, Pages

936-952.

The trial court erred when it failed to seat Ms. Mumaw in

violation of the Defendant's rights as guaranteed by the

fifth, sixth, and fourteenth amendments to the United States

Constitution. Transcript Volume 2B, Page 957-964.

The trial court erred when the venue of the case was not

changed in violation of the Defendant's rights 4s guaranteed

by the fifth, sixth, and fourteenth Amendments in the United

States Constitution. Transcript Volume 1, Page 212-215,

Transcript Volume 2, Page 198, and Transcript Volume 2B,

Pages 783-784 and 1011-1013.

The trial court erred when it refused to allow the defense

to educate the jury during voir dire in regard to the option

life in prison without the possibility of parole in

violation of the Defendant's rights as guaranteed by the

fifth, sixth, and fourteenth Amendments in the United States

Constitution. Transcript Volume 1, Pages 138-140 and 273-

274.

The trial court erred when it denied the Defendant's request

for a Bill of Particulars when the information that was

being sought was going to be used to challenge the

constitutionality of the death penalty. That said error was

a violation of the Defendant's rights 4s guaranteed by the

fifth, sixth, and fourteenth Amendments in the United States

—.-+-

16.

18.

13.

14.

15.

Constitution. Transcript Volume 1, Pages 207-209

The trial court erred when

it adm

pat Rss in violation of cénivess geestie ene

eed by the fifth, sixth, and fourteenth + rw Re in

the United St

320-222. ates Constitution. Transcript Volume 1, Page

The trial court erred when it

refused ;

eS pt pe black and white oe ee at the

Meee A —_ scene instead of color photographs, which

ae ae ammatory and violated the Defendant's rights

SS BY the fifth, sixth, and fourteenth Amendment

peese 830-22 tates Constitution. Transcript Volume 1

2. Transcript Volume 5 pages 1394-1395.

The trial court erred when i

par t allowed the ju

pita eet Me Defendant's refusal to seas oy eeeaian test

2 est), when he was advised by the Government

en eh A AD to refuse such a test and that it was

Year - error violated the Defendant's rights as

mage eee y the fifth, sixth, and fourteenth Amendment

ed States Constitution. Transcript Volume l, nelly

240-264 and T

+f ranscript Volume 1, Page 14-18, 249, 250, 251,

The trial court erred b

y allowing a

yg te article about Mr. Lilly's ae Ag alban Mig og h

ent A ore in violation of the Defendant's rights -. mr

ed the fifth, sixth, and fourteenth Amendments in

the United St

17-18. ates Constitution. Transcript Volume 3, Pages

ane Sete? ee Sees in the admission of evidence of a co-

ee re nome whom the court ruled was not available

po Rc fine * a ements were admissible as statements

me poh a nterest. Said error violated the Defendant s

—_ pe Bh trap by the confrontation clause, the fifth

yon rs Bn Be rteenth Amendments in the United States !

me Rae age Volume 3, Pages 22-23 and

pages Py ype 7 ee Bg 908-007" Sa.

pages 1303, 1587-1598, 1610-1620 pet) + —

The trial court erred when tha

it determined -

defendant's statement met the criteria set forth in Chandler

, 249 Va 270, 455 S.E.2d 219

requirements of the confrontation clause. gin aten per

violated the Defendant's ri

ghts as guaranteed

Se Ae Amendments in the oe

Volume 4, Pag ranscript Volume 3, Pages 22-23; Transcript

, Pages 773-790, 847-848, and 866-867; eranscript

| 19.

20.

21.

22.

24.

25.

”

Volume 5, Pages 1303, 1587-1598, 1610-1620, and 1652-1653.

it refused to grant @ mistrial

after the Commonwealth's Attorney displayed before the jury

a large photograph of the deceased victin, intending to

incite or inflame the jury, Defendant's rights

as ranteed by the ft sixth, and fourteenth Amendments

in the United States Constitution. Transcript Volume 3,

Pages 54-56 and 93-94.

the video tape

The trial court erred in the admission of

depicting the victim and the crime scene, in violation the

Defendant's rights 45 guaranteed by the fifth, sixth, and

fourteenth Amendments in the United States Constitution.

Transcript Volume 3, Page 302.

when it allowed, in addition to the

his written report as evidence

before the jury, in violation of the Defendant's rights @s

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution. Transcript Volume 3, Pages

545-546, and

trial court erred

£ Doctor Oxley,

The

testimony ©

The trial court erred in allowing evidence

blood on the clothing of Benjamin Lee Lilly,

could not be determined to be

of the Defendant’

and fourteenth Amendments

Transcript Volume 3, Pages

fifth,

when it refused to declare & mistrial

after @ co-defendant, (Barker) read an article on the

newspaper concerning the trial despite the fact that Berker

was sequestered, violating the Defendant's rights 4s

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution. Transcript Volume 3, Page

29-40, 674-675.

The trial court erred

The trial court allowed a police officer

(officer Whitsett) to testify concerning statements

allegedly made by he was Mirandized;

particular, asking the Defendant: “what does a murderer

fourteenth Amendments in the

States Constitution. Transcript Volume 1, Pages 149-185,

268-273. Transcript Volume 4, Pages 758, 864. Transcript

Volume 5, Pages 1541-1542.

when it allowed statements allegedly

Chief Whitsett when the officer

statement", violating the

guaranteed by the fifth, sixth and

26.

27.

28.

29.

30.

31.

32.

fourteenth Amendments in the United States Constitution.

Transcript Volume 1, Pages 154-185, 268-273.

The trial court erred when it did not allow statements of a

co-defendant and one of the Commonwealth's primary witnesses

to be admitted, admitting that he had engaged in certain

conduct chat one could infer that he had the necessary

intent to kill the victim, violating the Defendant's rights

as guaranteed by the fifth, sixth and fourteenth Amendments

in the United States Constitution. Transcript Volume 4,

Pages 888-892, 904.

The trial court erred when it failed to give an instruction

on intoxication reducing the Capital Murder offense to a

lower crime, in violation of the Defendant's rights as

guaranteed by the fifth, sixth, eight and fourteenth

Amendments in the United States Constitution. Transcript

Volume 5, Pages 1193-1196.

The trial court erred when it failed to grant a mistrial

after the Commonwealth's Attorney during his closing

argument pointed the murder weapon in the direction of the

Defendant and his counsel; and when the defense objected to

the Court, the Court in front of the jury called the

Defendant's objection ridiculous, violating the Defendant's

rights as guaranteed by the fifth, sixth, and fourteenth

Amendments in the United States Constitution. Transcript

Volume 5, Pages 1279-1292, 1310-1311, and 1317-1321.

The trial court erred at the guilt phase in refusing to give

an Instruction that told the jury if they had a reasonable

doubt as to the grade of punishment, to impose the lower

grade, (life), violating the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution. Transcript Volume 5, Page

1486.

The trial court erred when it refused an Instruction telling

the jury that they could consider at the penalty stage

residual remaining doubt that the defendant committed the

offense, violating the Defendant's rights as guaranteed by

the fifth, sixth, and fourteenth Amendments in the United

States Constitution. Transcript Volume 5, Page 1492-1493.

The trial court erred when the Commonwealth at the penalty

stage was not ordered to give a Bill of Particulars of the

aggravating factors that the Commonwealth would use, in

violation of the Defendant's rights as guaranteed by the

fifth, sixth, and fourteenth Amendments in the United States

Constitution. Transcript Volume 5, Page 1498.

The trial court erred when they allowed the Commonwealth to

33.

34.

that

ce a felony conviction for purpose of showing

any oe dl was a convicted felon when the ——— -

agreed to stipulate that the defendant had been con

a felony, in violation of the Defendant's rights ES ni

anteed by the fifth, sixth, and fourteenth ae —

the United States Constitution. Transcript Volume 1, g

282.

urt erred when it failed to hold Virginia's

Oe elon statute unconstitutional vaoseesns Se

Defendant's rights as guaranteed by the no =

eighth, and fourteenth Amendments in the ree a

Constitution. Transcript Volume 1, Pages 266- .

The trial court erred when it allowed the gee ca to

introduce the taped statements of Mark een Perey a.

Commonwealth only provided a written transcr P Se

statement prior to trial, violating Se oS

Order and in violation of the Defendant's rig 7 a

guaranteed by the fifth, sixth, and fourteenth . onl

the United States Constitution. Transcript Volume 4, g

789-793, and 811.

QUESTIONS PRESENTED AND ARGUMENT IN SUPPORT

a. Did the trial court err when it refused to seat Ms. Huffman

as a potential juror in violation of the Defendant's rights

as guaranteed by the fifth, sixth, and fourteenth Amendmen

to the United States Constitution? (A.510-545)

2. Did the trial court err when it refused to seat Janet

Matheson on the ground that she indicated that she probably

could not impose the death penalty in violation of the

Defendant's rights as guaranteed by the fifth, sixth, and

a Amendments to the United States Constitution? (A.

3. Did the trial court err when it refused to seat Kristina

Mitchell when she indicated that she could follow the law

and impose the death penalty. That gaid error violated the

Defendant's rights as guaranteed by the fifth, sixth, and

naa 2 ag Amendments to the United States Constitution? (A

-812)

7. Did the trial court err when it refused to seat Leona E.

Wallace as a potential juror in violation of the Defendant's

rights as guaranteed by the fifth, sixth, and fourteenth

Amendments to the United Stated Constitution? (A.1039-1050)

8. Did the trial court err when it refused to seat Ollie M.

Jones when Ms. Jones clearly stated that she could follow

the law. That said error violated the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments to

the United States Constitution? (A.1335-1351)

9. Did the trial court err when it failed to seat Ms. Muzaw in

violation of the Defendant's rights as guaranteed by the

fifth, sixth, and fourtee.th amendments to the United States

Constitution? (A.1356-1363)

During the voir dire process the trial court struck several

jurors for cause when they indicated opposition to the death

penalty. The trial court, especially in the cases of Ms. Huffman,

Ms. Mitchell and Ms. Jones, abused its discretion and struck the

jurors for cause.

Beginning with Connie Huffman, the trial court struck for

cause because of a concern about the juror's ability to apply the |

death penalty. Ms. Huffman stated to the trial court that she

could impose a death penalty and that she would follow the trial

court's instruction and follow the law. During her entire

questioning by the trial court and counsel regarding her ability

to perform her duty, Ms. Huffman stated that while she didn't

believe in the death penalty, if she had to be on the case "I

would be fair in what my decision would be." (A.514) Moreover,

when asked by the trial court if her belief or opinion would

impair her from imposing the death penalty, Ms. Huffman stated

that "I don't think that would be any problem.” Ibid.

In regard to Janet Matheson, Appellant concedes that Ms.

Matheson did express an inability to impose the death penalty due

to her beliefs, however the Appellant mathtains that he is

entitled to a jury of his peers anc that by striking Ms. Matheson

the trial court denied the defendant that right.

The third juror struck was Kristina Mitchell. Ms. Mitchell

stated to the trial court that she was struggling with her own

beliefs regarding the death penalty, however she indicated that

she could follow the law and impose the death penalty. (A.786)

Over the entire questioning Ms. Mitchell agreed to follow the

trial court's instruction which included possible imposition of

the death penalty. Specifically, when asked by the trial court

whether her beliefs would impair her responsibility, Ms. Mitchell

stated "No," that they would not effect her responsibility.

(A.810)

Regarding Ms. Wallace the Appellant concedes that Ms.

| as a juror; second, the trial court's decision will not be

Wallace expressed 4 reluctance to set aside her beliefs, but she

indicated that she would be able to follow the law.

Ms. Jones indicated that she had spoken to her minister and

felt that she could serve as juror. (A.1340) She did indicate it

would be difficult to sit in judgement of another person and

sentence someone to death, but would the trial court desire

someone who took that duty lightly? When viewing the entire voir

dire it is clear that Ms. Jones understood her duty 4s 4 juror

and was capable of carrying it out.

The Appellant concedes that Ms. Mumaw expressed an opinion

that she could not impose the death penalty. However, the

Appellant argues that he is entitled to a jury of his peers and

that by excluding Ms. Mumaw the trial court denied the defendant

that right as proviced by the U.S. constitution. |

In determining whether the trial court abused its discretion

this Court has stated that several factors must be considered on

appellate review. First, the juror's views would have to

substantially impair or prevent their performance of their duties

disturbed unless there is manifest error because the trial court

is in a position to view and hear the juror; and third, that this

Court will review the entire voir dire, not a single question.

Barnabei v Commonwealth, 252 Va. 161, 173, 477 S.E.2¢ 270 (1996).

When applying the law to the matter at hand the Appellant

maintains that trial court abused its discretion, especially when

examining Ms. Huffman, Ms. Mitchell and Ms. Jones. The Appellant

maintains such abuse in discretion rose to the point of being a

manifest error. Ms. Huffman on several occasions maintained that

she could be fair and set aside her own beliefs and apply the

law. However, the trial court ignored Ms. Huffman's responses and

focused in on her belief about the death penalty. The law

requires that the belief must substantially affect the juror's

ability to perform their duty, but Ms. Huffman maintained

throughout her voir dire that she could fulfill that duty. Ms.

Jones made the same commitment to serve responsibly as a juror.

4. Did the trial court err when it refused to allow defendant's

Counsel to explore questions outside of the approved list

violating the Defendant's rights as guaranteed by the fifth,

sixth, and fourteenth Amendments to the United States

Constitution? (A.916-920)

The Appellant maintains that when the trial court banned the

defense from deviating from the approved list of questions, it

deprived the Appellant from asking relevant questions of the

potential jurors as allowed for by Buchanan v Commonwealth, 238

Va. 389, 384 S.E.2d 757, (1989). Thereby the trial court abused

its discretion and violated Virginia code §8.01-358.

5. Did the trial court err when it sat James Rakes as 4 juror

when he indicated he would believe Chief Whitset more than

other witness because he knew Chief Whitset, in violation of

the Defendant's rights as guaranteed by the fifth, sixth,

and fourteenth Amendments to the United States Constitution?

(A.970-999)

6. Did the trial court err when it sat Samuel Shumate as 4

potential juror when Mr. Shumate stated that he was a second

cousin to an investigator, Ron Hamlin, who was involved in

the case and whom the defense stated that they intended to

attack, and Shumate considered Mr. Hamlin to be a "real

close friend"; said error violated the Defendant's rights 4s

guaranteed by the fifth, sixth, and fourteenth Amendments to

the United States Constitution? (A.1000-1020)

On two occasions the trial court failed to strike jurors for

cause when it was clear that neither James Rakes nor Samuel

Shumate were impartial as required by the United States

Constitution, the sixth and eighth through the fourteenth

Amendments.

On Page A.988 of the Joint Appendix Mr. Rakes gives a clear

and honest answer that he would believe Chief Whitset more than

other witnesses because of their relationship. In addition, when

asked whether he would give Whitset more credibility than other

witnesses Rakes states "(i)t's a difficult question, but I think

you would tend to you know, if you knew something about someone

or knew something he could do." (A.988) When the trial court

questioned Rakes about his ability to view all witnesses with the

same weight, Rakes responded "No, your Honor, I think what I

meant to say was I'd probably start off at a different point

because you do have some familiarity, some knowledge and some

past about that person, maybe you would start with a different

feeling when you first began, but I don't know that would carry

on through all the testimony." (A.997) Clearly, by all of Rakes’

statements he felt that he would give Whitset more credibility at

the start of his testimony then other witnesses. Whitset was also

an important witness in the case because of alleged statements

that Lilly may have given to hin. Whitset's creditability was

brought directly into question as to what he believed he heard

Lilly say. The trial court was aware of Whitset's importance,

because the trial court had heard a motion to suppress the

; Breeden v Commonwealth, 217 Va. 297, 227 S.E.2¢ 734

| Rakes’ and Shumate's impartiality due to their relationships to

statement months before. Defense counsel was forced to use one

its preemptory challenges to strike Rakes.

In Mr. Shumate's case, Shumate testified that he was related

to Investigator Hamlin and that Shumate consider Hamlin to be 4

“real good friend." (A.1016) Moreover, the defense informed the

trial court that they intended to call Hamlin and criticize some

of his work on this case. Defense counsel aid just as it had

proffered and attacked the manner in which Hamlin had handled

pieces of evidence. Hamlin was also one the investigators who

questioned Mark Lilly.

In objecting to Rakes and Shumate, defense counsel cited

(1976), which

holds that a defendant has @ constitutional right to a fair and

impartial jury and that all that is needed to strike a juror is

reasonable doubt. (See also Wright v. Commonwealth, 73 Va. (32

Gratt.) 941 (1879). In applying the law to the matter at hand it

becomes clear that reasonable doubt was present regarding both

prospective witnesses, thereby violating Appellant's

constitutional rights to @ fair and impartial jury-

pid the trial court err when the venue of the case was not

in violation of the Defendant's rights 45 guaranteed

by the fifth, sixth, and fourteenth ents in the United

States Constitution? (A.305-308, 590-591, 1181-1182, 1410-

1412)

10.

The defense filed several affidavits to show that there was

community prejudice towards the Lilly. Radio, television and

hostile and prejudicial

newspaper articles recite inflammatory,

accounts of Lilly and the crime for which he was charged. These

reports also included conclusory labels about Lilly which were

prejudicial in nature, such as the Roanoke Times editorial

calling Lilly a “thug” and asking why the he wasn't incarcerated.

In addition the newspapers reported sympathetic information about

the victim. In a Virginia capital case the “r.'t of fact cannot

receive a victim impact statement before the sentencing phase of

the trial which describes the victim and the effect his death had

on his survivors as well as the Community.

Moreover, the publication of Lilly's prior record was highly

prejudicial. Numerous articles referred to Lilly's prior criminal

record. Such publication created an opportunity for the jury's

verdict to rest on impermissible grounds. The widespread

| publicity concerning the nature of the alleged offenses and

Lilly's alleged involvement presented a reasonable likelihood

that Lilly would be denied his constitutional right to a fair

trial and impartial jury. Therefore a change of venue under Va.

Code Ann. §19.2-251 was necessary to protect Appellant's rights

under the Sixth, Eighth and Fourteenth Amendments to the

Constitution of the United States.

ll. Did the trial court err when it refused to allow the defense

to educate the jury during voir dire in regard to the option

of life in prison without the possibility of parole in

violation of the Defendant's rights as guaranteed by the

fifth, sixth, and fourteenth Amendments in the United States

Constitution? (A.231-233, 366-367)

On two separate occasions, defense attempted to educate the

jurors before the sentencing phase in regard to the fact that

parole has been abolished for those in Virginia who are convicted

under the capital murder statute. Specifically, counsel proffered

the following question to the trial court; "Would you be more

likely to objectively consider life in prison if you knew that 4

sentence of life in prison means that the person would not ever

become eligible for parole?”

Appellant maintains that by refusal to allow defense counsel

to educate the jury during voir dire prohibited him from

obtaining a fair and impartial jury. The United States Supreme

Court held in Simmons v. South Carolina, 114 $.cCt. 2187 (1994)

that the defendant had a right to educate the jurors that life in

prison meant life in prison. However, in order to properly voir

dire the jurors, the Appellant needed the ability to inform the

potential jurors that if convicted Lilly would not be released

until his death. Appellant maintains that this was 4 violation of

his rights as guaranteed by the fifth and sixth through the

fourteenth Amendments of the United States Constitution.

/ 42. pid the trial court err when it denied the Defendant's

request for a Bill of Particulars when the information that

guaranteed by the

fifth, sixth, and fourteenth Amendments in the United States

31. Did the trial court err when the Commonwealth at the penalty

rdered to give a Bill of Particulars of the

aggrava Commonwealth would use, in

violation of the Defendant's rights as guaranteed by the

fifth, sixth, and fourteenth Amendments in the United States

Constitution? (A.2982-2983)

In order to ensure effective assistance of counsel as

Cc the ;

e 7

Va. 395, 442 S.E.2d 678 (1994). The

1 indictment

appropriateness of a motion to dismiss the capita

indictment, however, Gives no

notice of aggravating factors,

tutional as

hich this prosecution was based were unconsti

upon w

including the constitutionally

tion.

applied in this ac

Appellant, in Gemanding that the

Commonwealth identify its

: evidence,

Gid not seek discovery. Copies of

Commonwealth’

Statements of the

S witnesses and scientific evidence,

were not Sought in the motion for the

Rather, Appellant

Bill of Particulars.

to render defendan

tion factors necessary

or more of the aggrava

——..

@ sentence of death.

“

- The

heard are the cornerstones of | Eighth and Fourteenth Amendments to the Constitution of

ity to be hear |

Me et re ee 500 U.S. 110, 127 (1991); | the United States and the law Of Virginia both authorize that the

Vv , — 4

Gue process of law. Lankford v Idaho | bill of @rticulars

419 U.S. 565, 579 (1975). Further, due process Pp

be granted when challenging the

Constitutionality of a statute.

ity to

that a defendant be given notice and opportunity

requires

death y. Va. Code Ann. $19.2-266.2 requires the

defend against the Commonwealth's case for Simmons v South

, 500 U.S. 110 motion to dismiss an indictment or any count thereof, on the

S.Ct. 2187 (1994); Lankford v Idaho

Carolina, 114

77 n addition, the round t tatut

Gardner v Florida, 430 U.S. 349 (1977). 1 iti g hat a statute upon

iat dn 1 protection

ty requires additional p

the death penalty gu

unique nature of

defense to raise a

which it is

by written motion or objection Prior to

trial, which is what

counsel did in this matter. Additionally, defense motions for

based is unconstitutional,

Lockett v Ohio,

. . 7 14 that

. Beard v Commonwealth,

the indictment gives notice of the offense

isions of the Constitution of the United

, 247 States or the Constitution of Virginia Proscribing illegal

8, 445 S.E.2d 670 (1994); Mickens v Commonwea

248 Va. 68, Searches and seizures and protecting rights against sel+r-

to trial.

The statute further requires that "[t]o assist the deferse

in filing such motions or objections in a timely manner, the

trial court shall, upon motion of the defendant, direct the

Commonwealth to file a bill of particulars pursuant to § 19.2-

230." The appellant requested a bill of particulars in order to

move for dismissal of the capital indictment or to prohibit

imposition of the death penalty on the grounds that Va. Code Ann.

§18.2-231 and Va. Code Ann. §19.2-264 were unconstitutional as

applied in this case. However the trial court denied Appellant's

motion.

A motion to dismiss an indictment on the grounds that the

underlying statute is unconstitutional on its face requires no

such information; for example, a bill of particulars is not

sought in aid of defendant's motion to prohibit imposition of the

death penalty alleging systemic deficiencies in Virginia death

penalty statutes. The indictment and the underlying statute are

sufficient grounds to make this motion.

The Appellant argued in contrast, Va. Code Ann. §19.2-266-2

requires the Commonwealth to provide such in order for the

defense to make a timely motion to dismiss the capital indictment

on the grounds that the underlying statutes are unconstitutional

@s applied to this defendant, in that the time, place, manner,

and means of the crime are constitutionally insufficient and

cannot support either the capital indictment or the imposition of

the death penalty.

‘hay toe om

The motion for a bill of particulars requests identification

of all evidence upon which the Commonwealth intends to rely in

seeking a capital murder conviction or imposition of the death

penalty. Such identification is essential to enable the defendant

to determine whether to move for suppression of the evidence on

the grounds that it was obtained in contravention of the

constitution.

The Supreme Court of Virginia has held that "(t)here is no

general right to discovery in a criminal case, even where a

capital offense is charged." Strickler v Commonwealth, 241 Va.

482, 490, 404 S.E.2d 227, 233 (1991). However, recognizing that

the line between general discovery and a bill of particulars is

difficult to draw, the General Assembly has determined that

because notice of evidence to support a defendant's pre-trial

motions under §19.2-266.2 is compelled by the Sixth, Eighth and

Fourteenth Amendments, the trial court is required by that

statute to direct the Commonwealth to file @ bill of particulars

upon motion of the defendant.

It has been repeatedly held by the Virginia Supreme Court

that it is the duty of the trial court to compel the attorney for

the Commonwealth, when demanded by the accused, to file such bill

of particulars as will apprise the defendant of the cause and

nature of his accusation. Riner v Commonwealth, 145 Va. 901, 134

S.E. 542 (1926). In @ capital case, the cause and nature of the

allegation include those factors the Commonwealth must prove in

order to render a defendant eligible for a sentence of death. The

United States Supreme Court also has noted that, in order for the

requirements of due process to be met and for the adversarial

system to work properly, counsel must be given "a meaningful

opportunity to present 4 complete defense," Crane v Kentucky, 476

U.S. 683, 690 (1986), and that a capital defendant may not be

sentenced to death "on the basis of information which he had no

opportunity to deny or explain.” Gardner v Florida, 430 U.S. 349,

362 (1977). This requires notice of all such facts that will

influence the sentencing decision. Simmons v South Carolina, 114

S.Ct. 2187 (1994) (due process requires that @ defendant be

permitted to rebut the future dangerousness aggravating factor

with evidence of parole ineligibility if sentenced to life in

prison); Lankford v Idaho, 500 U.S. 110, 126 (1991) (lack of

notice that the death sentence may be imposed by the trial judge,

even though the prosecutor was not requesting the death penalty,

created an "impermissible risk" that the adversarial system would

not function properly).

In Virginia, the Commonwealth must prove one of two

aggravating factors to support the death penalty. The jury may

impose a death sentence only if it finds that the defendant's

conduct in committing the offense was outrageously or wantonly

vile, horrible or inhuman in that it involved torture, depravity

of mind or an aggravated battery (the "vileness” factor), or that

the defendant would commit criminal acts of violence in the

future that would constitute 4 continuing serious threat to

society (the "future dangerousness" factor). Va. Code Ann. §19.2-

264.4 (1990).

The Virginia "“vileness factor" requires narrowing

constructions to further distinguish its application because it

uses broad, vague terms that could apply to any murder. Maynard v

Cartwright, 486 U.S. 356 (1988). The narrowing construction

becomes, in effect, a limitation and clarification of the offense

charged. The Supreme Court has flatly held that the language used

in Georgia's "vileness" factor was constitutionally deficient.

Similarly, Virginia's "future dangerousness" aggravating

factor is comprised of broad, vague terms that could apply to any

murder. Maynard, supra. No limitation nor clarification of the

overly broad offense descrived is provided to sentencers.

Therefore, a constitutionally sufficient narrowing construction

of the "future dangerousness" aggravator is also required. Ibid.

Furthermore, not all narrowing constructions are sufficient

to meet constitutional requirements. Shell _v Mississippi, 498

U.S. 1 (1990).

The appellant maintains Va. Code Ann. §19.2-266.2 required

the trial court to order the Commonwealth to file a bill of

particulars for this defendant. Further, for a capital defendant

to have constitutionally adequate notice and opportunity to

defend himself, it was essential that the Commonwealth provide

the Appellant with both the aggravating factors and the narrowing

constructions thereof upon which the Commonwealth intends to seek

the death penalty. Finally, Va. Code Ann. §19.2-230 permits the

trial court judge to order the Commonwealth to file a bill of

particulars at his discretion; by failing to order a bill of

particulars the trial court abused its discretion.

13. Did the trial court err when it admitted graphic photographs

of the victim in violation of the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution? (A.313-315)

14. Did the trial court err when it refused the Defendant's

request to introduce black and white photographs of the

victim and crime scene instead of color photographs, which

were more inflammatory and violated the Defendant's rights

as guaranteed by the fifth, sixth, and fourteenth Amendments

in the United States Constitution? (A.313-328, 2878-2879)

20. Did the trial court err in the admission of the video tape

depicting the victim and the crime scene, in violation the

Defendant's rights as guaranteed by the fifth, sixth, and

rect Amendments in the United States Constitution?

. )

22. Did the trial court err in allowing evidence that there was

blood on the clothing of Benjamin Lee Lilly, which blood

could not be determined to be human or animal, in violation

of the Defendant's rights as guaranteed by the fifth, sixth,

and fourteenth Amendmen<s in the United States Constitution?

(A.1990-1999, 2016)

32. Did the trial court err when they allowed the Commonwealth

to introduce a felony conviction for purpose of showing that

the defendant was a convicted felon when the defendant

agreed to stipulate that the defendant had been convicted of

a felony, in violation of the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution? (A.375)

On several occasions the trial court admitted evidence that

was more prejudicial than probative.

During pretrial motions, Appellant moved to exclude color

photographs and videotape of the victim after the murder. While

some of the photographs may have been necessary to prove elements

of the crime, the prejudicial effect would have been diminished

if the trial court had required the Commonwealth to introduce

black and white photographs. Lilly argues that the trial court,

in failing to require black and white photographs and videotape,

abused its discretion.

In addition, the trial court abused its discretion when it

allowed evidence that blood was found on the back of Lilly's

pants when there could be no determination as to the type of

blood (whether it was human or animal blood) or as to the age of

the blood. Moreover, the three co-defendants had killed a goose

earlier in the day, the carcass and blood of which were found in

the trunk of Benjamin Lilly's car.

Finally, the trial court refused to allow the defendant to

stipulate that he was @ convicted felon, instead allowing the

prosecution to admit a prior malicious wounding conviction.

Coe v Commonwealth, 231 Va. 83, 340 S.E. 620 (1986) held

that when relevant evidence is offered which. may be inflammatory

und which may have a tendency to prejudice jurors against the

defendant, its relevancy must be weighed against tendency of

proffered evidence to produce passion and prejudice out of

proportion to its probative value.

In examining the issues at hand Lilly maintains that the

inflammatory nature of the photographs and videotape, the

testimony regarding the unidentifiable blood on Lilly's pants,

and the fact that the trial court would not allow Lilly to

stipulate that he was @ convicted felon outweighs their probative

value. In particular, there was absolutely no reason, except for

inflaming the jury, that the Commonwealth needed to introduce

Lilly's felony conviction when he agreed to stipulate this

opinions of jurors (for example, stemming from newspaper

element.

tai court err when it allowed the jury to hear articles) cannot be removed by the trial judge, those jurors

e tria

15. Did Ute of the Defendant's refusal © take a paraffin test, SE ra aren

(gun residue test), when he was advised ae oe es oon

that he had a right to foisted the ha A rights as | However, in this case 4 juror learned of other specific acts

voluntary.

guaranteed by the fifth, § and fourteen ae 32 not related to the murder charge from a newspaper article (A.36),

the United States Constitut

which told of Appellant being on parole.

1691)

she defendant was erroneously advised Py ‘he ne It is submitted that this juror, having knowledge of

such a test was voluntary on his part. Based on this statement, Appellent's prior criminal record, es ctigath es

he refused this test. cause.

s evidence against hin. It is

His refusal was used @4

17. Did the trial court err in the admission of evidence of 4

completely unfair for the defendant to be advised erroneously anc co-defendant's statement whom the court ruled was not

then the government to get the benefit of his refusal. This qeuis pete nagar ley the statesents Wotie error violated the

| create all types of abuse in the future on the part of police. po wine cpgy Mo oe oH Bs guaranteed by the “SScngeants 12 sae

reat ae ebaclen an wae eee ee Onited states Constitution? (4144s tte ieg, g094—3i27,

| held that silence cannot be used against 4 defendant. Escobedo Vv. 3136-3137)

Illinois, 378 U-S- 478 (1964). Certainly an erroneous statement The Appellant is mindful of Chandler v. Commonwealth, 249

| py the government causing the defendant to engage +n 4 course Va. 270 (1995), which held that Chandler's girlfriend's

conduct should also not be used against the defendant. statements against her penal interest were admissible. The

16. pid the trial court ocr me. Liliy's east 20 wo bed stbe. girlfriend's statement described riding in an automobile with

jury pene) os of a Defendant's, )Sendments i | Chandler and others to obtain a gun, and Chandler's discussion

| the United States Constitution? (A. 1438-1441) about "going in, robbing the store and leaving." The girlfriend's

| A juror who has knowledge of specific acts of misconduct not statement also contained other statements further inculpating

related to the crime should not be seated. AS © matter of ; Chandler. The Chandler case appears to be the first case in

Constitutional guarantee, the accused is entitled to & fair Virginia that allowed the confession or statement of a co-

a that if certain preconceived 4 defendant that was not exculpatory to the accused. It is

trial. Cases in Virginia have hel

a submitted that Chandler and subsequent cases created a "new"

exception to the hearsay rule and violates the defendant's 6th

Amendment rights to confront and cross-examine.

The rule in Chandler has been upheld in subsequent cases,

the most recent of which was Randolph v Commonwealth, 24 Va. App.

345 (1997). This case involved the admission of 4 co-defendant's

statement during a joint trial with the defendant. This case also

held that the confrontation clause was not violated by the

admission of such a statement. This statement was allowed

although made after the conspiracy had ended.

(From a reading of Chandler or Randolph, there is nothing to

indicate thet any statement of a police officer was admissible,

nor were the opinions of a police officer admissible. The entire

statement admitted in Chandler at page 278 concerned the factual

conduct of Chandler's girlfriend; about Chandler robbing the

store and about her acting as the driver of an automobile in the

commission of this crime.

This court held that the girlfriend's statement qualifies as

admissible hearsay and quoted Ellison v Commonwealth, 219 Va.

404, 408, 247 S.E.2d 685, 688 (1978), (citing Hines v

Commonwealth, 136 Va. 728, 117 S.E. 843, (1923).

In Ellison, it was the defendant, Ellison, (not the

Commonwealth), who sought to have a statement admitted given by

Joseph Brown indicating that he was the perpetrator of a crime.

This statement was exculpatory and aided Ellison.

In Hines, (also quoted in‘the Chandler case) a rule (that at

the time was beneficial to the defendant), was adopted that was

“out of line with the current of authority” and held that the

evidence of an extra judicial confession exculpatory of the

accused and made by a dead or otherwise unavailable witness, is

admissible as an exception to the hearsay rule. (Please note in

Hines that this was again the defendant who sought introduction

of a hearsay statement). The Court held that the evidence of an

extra judicial confession exculpatory of the accused was

admissible.

The same rule was later affirmed in Newberry v Commonwealth,

191 Va 445, 61 S.E.2d 318 (1950), (requiring the statement to be

exculpatory to the defendant), but none of these cases has ever

@llowed, prior to the Chandler case, these statements to be used

upon the request of the Commonwealth. In these cases, the person

who made the statement was not present in court. It is submitted

that there has not been a well established hearsay rule in the

State of Virginia that allowed these statements to be used by the

Commonwealth. The Commonwealth had such statements exculpatory to

the accused, admitted against the government, because the

Commonwealth does not have the right to confrontation. The rule

established in Chandler creates an exception to the hearsay rule,

which it is submitted cannot be used against the defendant,

because it bars his right to confront that witness.

It is further submitted that in none of these cases were the

Opinions of a police officer, expressing his belief in the

Gefendant's guilt, allowed to be entered as evidence.

As further proof that this rule was not intended to be used

by the Commonwealth, it is submitted that Chambers v Mississippi,

410 U.S. 284, 93 S.Ct. 1039 (1973), makes this clear. This was a

Mississippi rule barring, (in Mississippi ome cannot not call a

witness and then impeach him), the admissions of declarations

against penal interest, which the defendant in Chambers sought to

have introduced. (Chambers sought to introduce a confession and

other admissions that McDonald had killed the person, fox

impeachment). The Court refused to admit, on behalf of the

defendant, evidence of a third party confession and statements

against third parties. The United States Supreme Court in

Chambers stated that the Third Party Confession should come in

for the benefit of the defendant and further stated, “the hearsay

rule may not be applied mechanistically to defeat the ends of

justice." The Court found that such exclusion denied the

defendant's due process of law and reversed, finding that the

right to confront and cross examine a witness has long been

recognized as essential to due process.

The admission of such a statement is historically discussed

in Ellison, at 404. This rule, which apparently had been adopted

solely for the defendant's benefit, was “out of line with the

current of authority”. At Ellison, they particularly stated that

the admission of this rule, “of an extra judicial confession,

exculpatory of the accused and made by a dead or otherwise

unavailable witness is admissible as an exception to the hearsay

rule".

There is nothing indicated in the Virginia cases, prior to

ol ett ta Me A

eee

Chandler, that the rule which has been narrowly interpreted by

this Court, should ever allow the Commonwealth to introduce a

statement of third party implicating the defendant as was done in

this case and in Chandler; and there is equally no language in

‘the prior opinions allowing the statements in such a written

confession containing statements of police officers that they

believed the third party was telling the truth about the

defendant killing a victiz.

The rule of the admission of a declaration against interest

er a confession prior to 1995 as an exception to the hearsay rule

was only admissible in approximately five states, Virginia being

one of them.

The statements in Chandler and the subsequent cases violate

the constitutional rights of the defendant and certainly the

statements of the police officers were hearsay.

18. Did the trial court err when it determined that a co-

defendant's statement met the criteria set forth in Chancler

vy Commonwealth, 249 Va. 270, 455 S.E.24 219 (1995) and the

requirements of the confrontation clause. Said error

violated the Defendant's rights as guaranteed by the fifth,

sixth, and fourteenth Amendments in the United States

Constitution? (A.1445-1446, 2212-2225, 2253-2282, 2318-2332,

2350-2359, 2787, 3071-3082, 3094-3117, 3136-3137)

The Commonwealth over the Defendant's objections, introduced

an out-of-court statement made by a co-defendant that

specifically addressed the issue of guilt of the Defendant. The

trial court held, after determining that Mark Lilly was

unavailable, that his statement was admissible under Chandler v

Commonwealth, 249 Va. 270, 455 S.E. 2d 219 (1995). Chandler

relied on Ellison v Commonwealth, 219 Va. 404, 247 S.E.2d 685

(1978) which holds that the confrontation clause will be

satisfied if the following requirements are met:

1. Witness unavailable

2. The statements are against the declarant's penal

interest making the statement inherently reliable

When examining Mark Lilly's statements to Investigators

Price, Fleet and Hamlin it becomes clear that Mark Lilly was

lying to them and attempting to give statements which would serve

Mark's own desire to exculpate himself. Especially when it is

taken into account that Mark Lilly was told the penalties he was

facing and being encouraged by Fleet and Hamlin, on page A.2323

of Mark Lilly“s statement to them, not to "take the rap" and that

he was not the one who pulled the trigger.

In the first interview conducted by Price, (A.2257) Mark

Lilly describes Gary Barker as his "brother's buddy” when in fact

Barker and Mark Lilly were living together in a single bedroom

mobile home, which they had rented from Alfred Falls. (A.2430,

2433) In addition Mark Lilly contradicts that assertion when he

tells Fleet and Hamlin during the second interview, on page 2 of

his statement to them (A.2319), that Ben came over to their

trailer when Barker and Mark Lilly were still in bed.

Mark Lilly goes on to tell Hamlin that they had been

drinking liquor and were drunk before the break-in at Danny

Sanders' home, but according to the co-defendants' own statements

they didn't have liquor until they stole it from Sanders’ home.

The excuse of drunkenness is used throughout the interviews by

Mark Lilly to distance himself from criminal activity and lay the

blame at the feet of his brother and not the man he is living

with. When Mark Lilly is asked where all the liquor came from, he

implicates Ben as the sole one who stole it out of Danny Sanders’

home. Specifically Price asks, "and when you say ‘they got it out

of a house’, who are you talking about ‘they'?" Mark replies

"Ben". (A.2258) Price then asks “talking about Ben and who else?"

and Mark Lilly then replies “Lilly, just Ben.” Ibid. Price asks

again "Just Ben, or Gary was with them?" Finally Mark Lilly

admits " we was all on it.” This admission makes it clear that

| Mark Lilly is trying to shift the blame away from himself and

Gary Barker. Further, a reasonable inference can be drawn that

Mark Lilly realized that Barker had admitted to Price that “they”

had gone into Sanders’ home when Price asked Mark Lilly again

whether it was "just Ben or was Gary with them.” In addition,

when Price asks where the Sanders home was, Mark Lilly replies

“somewhere in Floyd is all I can tell ya." (A.2258) When Mark

Lilly is asked by Hamlin (A.2320) about the whose house was

broken into, Mark Lilly denies knowing whose house it was and at

first can only “guess” that he went in. According to Sanders,

Mark Lilly had been to Sanders’ home on several occasions, knew

where Sanders’ guns were kept and knew that Sanders worked out of

town. (A.1626, 1627, 1630) On A.2259, Mark Lilly again gives

another self-serving statement when asked by Price what other

things were taken out of the Sanders home. Mark Lilly replies "I

don't, I don't really know, you know, everything that was got out

cause I was drunk." When questioned further by Price, Mark Lilly

gives a detailed account of what was taken. (A.2259-2260) When

asked whose residence it was Mark Lilly gave no verbal statement,

but according to Price, Mark Lilly indicated that he did not know

whose home it was or its location. (A.2289) However, it is clear

from Sanders that Mark Lilly had been in Sanders' home on several

occasions.

As the questioning turns toward the abduction, robbery and

murder Mark Lilly again distances himself from these events. When

asked by Price if they all got in Alexander DeFillippis' vehicle,

Mark Lilly gives yet another self-serving statement on page

A.2263, that he "had to or get left man, I was so drunk." Mark

Lilly tells Hamlin on page A.2322 that he didn't get out of the

car when DeFillippis was robbed, but when he testified at the

sentencing hearing in February of 1997, Mark Lilly admitted that

he was the one who robbed DeFillippis. (A.3095, 3099)

When giving statements to Price, on page A.2271, about the

time when the murder takes place Mark Lilly states that he nor

Barker ever got out of the car. Again a self-serving statement

that not only attempts to protect Mark Lilly, but Barker as well.

However, it was clear from both the physical evidence and

statements by Barker that both Mark Lilly and Barker got out of

the car at the scene of the murder. The money clip found on the

scene was identified as being the same one taken from Sanders’

home and the one that Mark Lilly claimed at residence of Warren

}

Nolan and Patricia Quesenberry. (A.1591-92, 1605) Moreover,

Barker stated that Mark Lilly got out of the car and they laughed

at DeFillippis when the victim was stripped.

When asked about the distance that DeFillippis was shot by

Ben Lilly, Mark Lilly stated that the distance was ten to fifteen

yards on page fifteen of Mark Lilly's statement, while Barker

describes the shots as coming from point blank range. Mark Lilly

does not mention that he and Barker laughed at the victim when he

was stripped down to his underwear, rather Mark Lilly states to

Price "I don't know.” (A.2268)

When Mark Lilly is asked questions about the robberies that

- took place immediately after the murder, he cannot remember that

Barker had the murder weapon and used it to commit the robbery.

When asked about taking 4 twelve-pack of beer from the first

store, Mark Lilly states to Price "... I was so drunk, I don't do

that shit, you know, if I'm sober." " I had money in my pocket.”

(A.2273) When asked if he got money from the first robbery Mark

| Lilly initially states "They got some.” Only after subsequent

questioning does Mark Lilly admit to Price, ibid, that he

received a share of the money.

In regard to the second robbery in Giles, Mark Lilly states

that "they got their stuff", not that he took his share 4s Barker

suggested. (A.2278)

On page A.2279 in his statement to Price, Mark Lilly denies

taking the murder weapon when he fled from the car when police

arrived, even though the gun was found in the direction he fled.

However, the most illuminating fact is Mark Lilly's

testimony, given under oath, where he admits lying to Price,

Fleet and Hamlin because he was scared when Price started talking

about all those life sentences and decided to "(t)hrow it off on

somebody else." (A.3096) When asked why he did not testify at

Ben's trial Mark Lilly responded "I hadn't been to court yet" and

that his "... lawyers told me that it was in my best interest to

keep my mouth shut, so that's what I did. I took the fifth."

(A.3096, 3100)

The appellant argues that Mark Lilly was, at every

opportunity, trying to distance himself from his brother and

place himself in the best possible light in order to avoid the

life sentences and possible death penalty that Price had

mentioned.

When applying the 6th through the 14th Amendments of the

United States Constitution to the matter at hand we know that

Mark Lilly's statements, besides being contradictory in

themselves, more importantly are inconsistent with the facts, the

physical evidence, and the other witnesses' statements. One of

the confrontation clause's purposes is to allow the defendant to

confront his accusers, and to place these accusers under oath.

When placed under oath Mark Lilly admitted he lied to the

Investigators and refused to testify at the trial in order to

protect himself.

Finally, even the trial court had some trouble in

determining whether the statements made by Mark Lilly were

Smee eS

- te. Armd

against his penal interest when it stated that "...the Court

finds that Mark Lilly's statements weren't against his penal

interest and that they are reliable and trustworthy." (A.2227)

19. Did the trial court err when it refused to grant a4 mistrial

after the Commonwealth's Attorney displayed before the jury

a large photograph of the deceased victim, intending to

incite or inflame the jury, violating the Defendant's rights

as guaranteed by the fifth, sixth, and fourteenth Amendments

in the United States Constitution? (A.1477-1479, 1516-1517)

Not only are prosecuting attorneys under a duty to

prosecute, but they are under a duty to see that the accused gets

a fair and impartial trial. McClane v Commonwealth, 202 Va. 197,

116 S.E.2d 274 (1960). Jones v Commonwealth, 196 Va. 10, 82

S.E.2d 482 (1954), further held that the Commonwealth Attorney

should refrain from observations or remarks that evidence

feelings of prejudice.

Certainly this rule was not followed in the matter at hand,

when a photograph of the victim in life was displayed in front of

the jury.

21. Did the trial court err when it allowed, in addition to the

testimony of Doctor Oxley, his written report as evidence

before the jury, in violation of the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution? (A.1984-1995, 2000)

Some of the tests and reports in this matter were not

conducted by Dr. Oxley, and are hearsay. However, the trial court

ruled that they were admissible under the business records

exception to the hearsay rule. Lilly maintains that this was

error on the part of the trial court.

23. Did the trial court err when it refused to declare a

mistrial after a co-defendant, (Barker) read an article in

the newspaper concerning the trial despite the fact that

Barker was sequestered, violating the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution? (A.1452-1463, 2113-2114)

Early in the trial there was a motion to sequester the

witnesses, which the trial court granted. However, in spite of

this sequestration order, Barker elected to read newspaper

accounts of the ongoing trial in violation of the trial court's

| order. Appellant maintains that if a sequestration order is to

| have any validity it must bind the witness to refrain from

discussing the case and abstain from reviewing media descriptions

of the proceedings. Moreover, sequestering the witness plays an

important role in assuring a fair trial to both sides.

24. Did the trial court err when it allowed a police officer

(Officer Whitset) to testify concerning statements allegedly

made by the defendant before he was Mirandized; in

particular, asking the Defendant: "what does 4 murderer look

like?", violating the Defendant's rights as guaranteed by

the fifth, sixth and fourteenth Amendments in the United

States Constitution? (A.242-278, 361-366, 2197, 2348, 3025- |

3026)

Officer Whitset asked the defendant, "what does a murderer

look like?". The defendant's alleged response was, "me". Clearly,

this was an incriminating statement and should have been

suppressed. The defendant also stated he was going to hell to

meet his brother, which was also in response to a question by the

officer.

25. Did the trial court err when it allowed statements allegedly

made by the Defendant to Chief Whitset when the officer said

he "thought he heard the statement", violating the

Defendant's rights as guaranteed by the fifth, sixth and

fourteenth Amendments in the United States Constitution?

(A.247-278, 361-366)

On the night in question Appellant was placed in a patrol

car after being taken into custody by officer Randy Tilley.

Shortly thereafter Chief Whitset arrived on the scene and

positioned himself outside of the vehicle in which Benjamin Lilly

had been placed. Whitset admitted that he questioned Lilly about

the identity of the others in the car, and whether those who had

fled were armed. (A.258-261) Subsequently to this questioning

Whitset states that Lilly asked Whitset to "do him a favor."

(A.261-262) This "favor" was to put Whitset's shotgun in his

mouth and pull the trigger. Whitset refused and stepped back away

from the car. (A.274) Then Whitset asked Lilly “what does a

murderer look like?" In response Whitset stated that he thought

he heard Lilly say "me." (A.268) Whitset admitted that at the

preliminary hearing he had “solicited” the question but "wouldn't

construe it as being incriminating." (A.268-269) Moreover,

Whitset knew at the time of the questioning that multiple armed

robberies had taken place when he solicited the question from

Lilly. (A.271) Whitset also stated that he had trouble hearing

Lilly when he stepped away from the vehicle. (A.260)

The appellant maintains that Miranda applies to the matter

of whether the statement was admissible against Lilly. There is

no doubt that Lilly was in custody during the time that the above

stated conversation took place meeting the first requirement of

Miranda. The next issue is whether the statement was voluntary as

the trial court held or whether the response "me" was solicited

by the officer as Whitset stated. Whitset admitted on the day of

the motion hearing, as he did at the preliminary hearing, that

the response was "solicited" by him. Moreover, when asked on

cross~-examination Whitset admitted that he had backed away from

the vehicle in which Lilly was sitting. (A.274) This statement

was not initiated by Lilly, rather it was solicited by Whitset

and violates Lilly's rights as guaranteed by the U.S.

Constitution Specifically his fifth and sixth amendment rights

through the fourteenth amendment.

In addition, on December 7, Whitset stated that he thought

he heard Lilly say "me". However, when called to testify at the

Preliminary hearing and at the motion hearing Whitset stated that

he was shocked by Lilly's response and the reason he said ‘

"thought" was because he only wanted to verify what Lilly had

Said. However, Whitset admitted that he had trouble hearing Lilly

when he was backed away from the car, as he was when this

Statement was allegedly given. Furthermore, Whitset admitted that

his memory was better on December 7 than at the preliminary

hearing or at the motions hearing.

The appellant maintains that the trial court erred when it

allowed this statement in because it was speculation on Whitset's

part, and that its admission was a violation of Lilly's Miranda

rights. Evidence placed before a jury is not intended to be mere

guesswork; rather, Whitset thought he heard Lilly or he didn't.

However, when you examine the fact that Whitset asked Lilly what

he had said and moved closer to the car a reasonable conclusion

can be drawn that Whitset was not certain what Lilly had said.

26. Did the trial court err when it did not allow statements of

a co-defendant and one of the Commonwealth's primary

witnesses to be admitted, admitting that he had engaged in

certain conduct that one could infer that he had the

necessary intent to kill the victim, violating the

Defendant's rights as guaranteed by the fifth, sixth and

fourteenth Amendments in the United States Constitution?

(A.2372-2376, 2388)

Approximately five hours prior to the murder, co-defendant

Barker made statements about shooting his best friend (A.2400,

2404, 2504-2516) to Joyce Lang. Such statements alarmed her to

the extent that she refused to allow her son to go with Barker.

This evidence was favorable to the defendant and Section 8

of the Virginia Constitution, as well as the United States

Constitution, allow the defendant to call for evidence in his

favor.

Barker had the murder weapon and admitted he possessed the

Same shortly after the murder. These statements would further

advance the Appellant's theory that Barker was the trigger man.

27. Did the trial court err when it failed to give an

instruction on intoxication reducing the Capital Murder

offense to a lower crime, in violation of the Defendant's

rights as guaranteed by the fifth, sixth, eight and

fourteenth Amendments in the United States Constitution?

(A.2677-2680)

There was more than a small amount of evidence, or "a

scintilla” to support this instruction. There was evidence of

large amounts of alcohol being consumed, as well as the statement

of the Appellant.

28. Did the trial court err when it failed to grant a mistrial

after the Commonwealth's Attorney during his closing

argument pointed the murder weapon in the direction of the

Defendant and his counsel; and when the defense objected to

the Court, the Court in front of the jury called the

Defendant's objection ridiculous, violating the Defendant's

rights as guaranteed by the fifth, sixth, and fourteenth

Amendments in the United States Constitution? (A.2763-2776,

2794-2795, 2801-2805)

During the Commonwealth's Closing argument the

Commonwealth's Attorney pointed the murder weapon at the defense

counsel and/or the defendant; defense counsel objected to said

action and requested a mistrial. (A.2763, 2772) The trial court

in ruling on the Defendant's motion called the motion

"ridiculous" before the jury. (A.2764) This Court held in

Compton v Commonwealth, 190 Va. 48 (1949) that the "(rjulings

made in words or manner indicating antagonism or resentment

toward counsel may convey the impression that the feeling

includes also counsel's client." First and foremost, the

Appellant argues that objecting to someone pointing a gun in

counsel's direction is a natural action and should not be

referred as ridiculous. However, the actual harm came from the

Statement by the trial court. By angrily calling the defense

motion ridiculous the trial court gave the jury the impression

that it was appropriate to point the gun at the defense,

effectively undermining defense counsel's creditability with the

jury. Appellant argues that this antagonism was uncalled for,

inappropriate and constitutes reversible error. The aforesaid

Statement of the trial court clearly indicated antagonism or

resentment by the trial court which was prejudicial to the

defendant. Moreover, defense counsel requested a corrective

instruction in an attempt to lessen the effect of the trial

—

court's statement, but again the trial court refused to grant any

corrective instructions to the jury. (A.2774-2777)

29. Did the trial court err at the guilt phase in refusing to

give an Instruction that told the jury if they had a

reasonable doubt as to the grade of punishment, to impose

the lower grade, (life), violating the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution? (A.2970)

Although there is little authority on the proffered jury

instruction, there is abundant authority in Virginia on closely

related matters. A similar instruction has been given involving

the grades of the offense. Sanderson _v Commonwealth, 200 Va. 51,

103 S.E.24 800 (1958).

30. Did the trial court err when it refused an Instruction

telling the jury that they could consider at the penalty

stage residual remaining doubt that the defendant committed

the offense, violating the Defendant's rights as guaranteed

by the fifth, sixth, and fourteenth Amendments in the United

States Constitution? (A.2976-2977)

It is submitted that it was error to refuse this

instruction. Lockhart v. McCree, 476 U.S. 162 (1986). It is true

that the Stockton Case states that this instruction should not

have been given, but it is submitted that the Constitution calis

for its inclusion.

33. Did the trial court err when it failed to hold Virginia's

Geath penalty statute unconstitutional violating the

Defendant's rights as guaranteed by the fifth, sixth,

eighth, and fourteenth Amendments in the United States

Constitution? (A.359-361)

Appellant concedes that Virginia case law has held that

Virginia's death penalty meets all constitutional requirements.

However, Appellant argues that the death penalty constitutes

cruel and unusual punishment. The Virginia statute is vague in

both the "vileness” and "future Gangerousness” issues and

Appellate asks this Court to consider additionally the brief

filed in the trial court Record and incorporates the same by

reference.

34. Did the trial court err when it allowed the Commonweal

introduce the taped statements of Mark Lilly when the

Commonwealth only provided a written transcript of the

statement prior to trial, violating the Court's Di

Order and in violation of the Defendant's rights as

guaranteed by the fifth, sixth, and fourteenth Amendments in

the United States Constitution? (A.2228-2232, 2250)

th to

Without question the government violated the trial court's

discovery order. The defense was not allowed to hear Mark Lilly's

devastating taped statements until after the trial began.

(A.2228-2232) Although the Commonwealth had provided a written

copy of the transcript, it did not provide a copy of the audio

tape. However, the trial court's Giscovery order specifically

stated:

All alleged confessions or statements of any kind made

by the Defendant or any alleged co-conspirator that may

be pertinent to this case in every media in which each

such confession or statement may exist (in substance or

verbatim), including, but not limited to audio tapes,

video tapes, film, shorthand notes, print, typing or

handwriting. (A.48)

The government violated this discovery order in violation of

the defendant's rights.

CONCLUSION

It is submitted that any one, Or a combination of the errors

assigned, would entitle the Appellant to a retrial in this

matter. In addition, Appellant requests to be allowed to present

oral arguments in support of this Appellant Brief.

BENJAMIN LILLY

—

ounseY, Christopher A. Tuck

CERTIFICATE OF SERVICE

Max Jenkins

Jenkins & Jenkins

P.O. Box 886

Radford, VA 24141

(540) 639-9088

Christopher A. Tuck

Asnorney & Counselor at Law

P.O. Box 11422

Blacksburg, VA 24062

(540) 552-4567

; ine Baldwin,

Virginia 23219; Appellee Kather

Hes pry nee General at 900 East Main Street, Richmond,

to present oral

In addition, Appellant requests to be

) - inted Counsel

d@ Christopher A. Tuck, Court-Appo

Eee Appetien, tendesse, testi. et net Sst bard Sets alleg

nag ag ae gee Supreme Court of Virginia at 100 North Ninth

Virginia 23219, (804) 786-9527; on this 7th day of January, 1998.

arguments in support of this Appell

Tuck

IN THE SUPREME COURT OF VIRGINIA

at Richmond

BENJAMIN LEE LILLY,

Appellant,

Record Nos. 972385 & 972386

COMMONWEALTH OF VIRGINIA

Appellee.

ee ee ee ee ee ee

COMES NOW the Appellant, Benjamin Lee Lilly, by counsel, and pursuant to Rule

5:39 of the Rules of the Supreme Court of Virginia petitions this Court for a rehearing on

the issues described below.

I. THE COURT ERRED IN UPHOLDING THE ADMISSION OF MARK LILLY’S

OUT OF COURT STATEMENT

This Court's conclusions regarding the admissibility of Mark Lilly's out of cour

statements were unreasonable conclusions of law and applications of fact, and left uncorrect-

ed violations of Benjamin Lilly's Sixth Amendment right to confrontation and Fourteenth

Amendment right to due process.

Case after case in the Supreme Court of the United States makes clear that portions of

hearsay declarants’ statements which are inculpatory of the accused must be subject to the

Sixth Amendment right to confrontation and cross-examination. In Douglas v, Alabama, 380

US. 415 (1968), the Supreme Court held that the prosecutor's reading of a nontestifying

codefendant’s statement inculpatory of the accused under the guise of refreshing his recollec-

tion violated the Confrontation Clause. The Court later recognized that the violation in

Douglas was not as serious as it was in a case in which the statement was actually offered as

substantive evidence. Bruton v. United States, 391 U.S. 123 (1968). In that case, like

Lilly's, the codefendant’s statement was admitted as substantive evidence.

Even greater, then, was the likelihood that the jury would believe [the declar-

ant] made the statements and that they were true - not just the self-incriminat- —

but those implicating Petitioner as well. Plainly, the introduction

of [the declarant's) confession added substantial, perhaps even critical, weight

to the Government’s case in a form not subject to cross-examination since [the

declarant) did not take the stand. Petitioner thus was denied his constitutional

right of confrontation.

Bruton, 391 U.S. at 127-128. The Court reiterated its objections to the use of #

codefendant’s hearsay statements as substantive evidence against the accused in Lee v.

Llingis, 476 U.S. 544 (1986) (Sixth Amendment violated where presumptively unreliable

statement of codefendant introduced against accused at joint bench trial).’ Despite this clear

guidance from the Supreme Cour, this Court found Mark Lilly's statements admissible.”

'This Court relies on Raia v. Commonwealth, 23 Va. App. $46, 478 S.E.2d 328 (1996),

in support of its conclusion that the trial court's admission of Mark Lilly's statement wit Eos

in error. The Raia Court attempts to avoid the clear dictates of Bruton and Les by arguing

that those cases involved joint trials. Id, at 549, 478 S.E.2d at 330. In neither case did

Supreme Court provide such a basis for limiting their holdings. B fs cles Ont Oe Cue

done by the inability to cross-examine a witness against the accused is unaffected By

or not the witness is being tried in the same action. Each and every argument underlying

Without acknowledging Douglas, Bruton, or Lec, this Court relies on White v -litingls.

502 U.S. 346 (1992). White. however, does not concern the presumptively unreliab!

statements of a codefendant. White considers only whether to impose an unavailability

on the hearsay exceptions of excited utterance and statements made in the cours®

Hearsay may be admitted without violating the Confrontation Clause if it falls into a

"firmly rooted" hearsay exception. Ohio v, Roberts, 448 U.S. 56 (1980). No “firmly

rooted” exception is present in Lilly's case. Those exceptions which the Supreme Court has

deemed to be “firmly rooted” are those which "rest upon such solid foundations that

admission of virtually any evidence within them comports with the ‘substance of the

constitutional protection [of the Confrontation Clause]’." Ohio v. Roberts, 488 U.S. at 66

(1980), quoting Mattox v. United States, 156 U.S 237, 244 (1895). As this Court noted, "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.” Slip Op.

at 21, quoting White v. Illinois, 502 U.S. 346, 357 (1992). The Supreme Court has found

numerous hearsay exceptions to be firmly rooted. Ohio v, Roberts, 448 U.S. at 66 n. 8

(dying declarations, business records, public records) (internal citations omitted)); California

v. Green, 399 U.S. 149, 165-168 (1970) (preliminary hearing testimony); Manchus y.

Stubbs, 408 U.S. 204, 216 (1972) (prior trial testimony); Mattox v. United States, 156 U.S.

237, 244 91985) (first trial testimony). The Supreme Court has not found, however, that the

statements against interest exception qualifies for this status. Williamson v. United States.

512 U.S. 594, 605 (1994).

In fact, far from suggesting such statements are inherently reliable, the Supreme

Court has found that statements of codefendant shifting blame to other defendants are

presumptively unreliable. Lee v. Illinois, 476 U.S. at 543. A presumptively unreliable

statement cannot be the basis of a "firmly rooted” hearsay exception. See, ¢.g., Douglas v.

: Ria Eee RD : ——O

Alabama, supra, 380 U.S. 415; Bruton v, United States, supra, 391 U.S. 123; Lee v.

Illinois, supra, 476 U.S. 544; Williamson v. United States, supra, 512 U.S. 594.

Even if the statement against interest exception is deemed to be firmly rooted, this

Court's conclusion that those portions of Mark Lilly's statements exculpating himself and

inculpating Benjamin Lillv as the triggerman constituted statements against interest is patently

unreasonable.’ The notion that statements against interest should be admitted as hearsay is

grounded in the belief that reasonable people will not make self-inculpatory statements that

are not true. See Williamson v, United States, 512 U.S. at 603-604. Thus, there is no basis

to vest self-exculpatory statements with any indicia of credibility not afforded ordinary

hearsay. The suggestion that these exculpatory statements are somehow more credible as a

result of their proximity to inculpatory statements has been expressly rejected by the Supreme

Court. "The fact that a person is making a broadly self-inculpatory confession does not

make more credible the confession’s non-self-inculpatory parts.” Williamson v. United

States, 512 U.S. at 599,‘

*Lilly notes that the Commonwealth retains a great deal of control over whether a

criminal defendant will be unavailable for purposes of invoking the statements against interest

exception. If the Commonwealth believes that the value to the prosecution of one codefenda-

nt's statements will diminished by exposure to cross-examination, it can simply delay the

codefendant’s trial him that when he takes the stand in his codefendant’s trial he will avoid

cross examination by invoking his right to silence. The prosecution thereby gains the

advantage of admitting the statement without exposure to cross-examination.

‘This Court has attempted to avoid the dictates of Williamson, which held that a

statement like Mark Lilly's was not admissible under the federal rules, by arguing that the

entire decision was inapplicable because it was based on a federal rule. Chandler v,

Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219, 225, cert. denied, 516 U.S. 889 (1995).

The Supreme Court has held that statements of codefendants are “presumptively

unreliable as to the passages detailing the defendant's conduct or culpability because those

passages may well be the product of the co-defendant’s desire to shift or spread the blame,

curry favor, or divert attention to another." Lee v. Illinois, 476 U.S. at 545. As Justice

O'Connor has pointed out “[o]ne of the most effective ways to lie is to mix falsehood with

truth, especially the truth that seems particularly persuasive because of its self-inculpatory

nature.” Williamson y. United States, 512 U.S. at 599-600. Mark Lilly was trying to shift

blame to Benjamin Lilly for the far more serious crimes while he implicated himself in more

minor criminal activity. That is clear, not only frorn his statement, but also from the fact

that Mark Lilly admitted that was his intention. A. 3096. As the Court found in Lee,

Even Justice Harlan, who was generally adverse to what he regarded as an

expansive reading of the confrontation right, stated that he “would be prepared

to hold as a matter of due process that a confession of an accomplice resulting

from formal police interrogation cannot be introduced as evidence of the guilt

of an accused, absent some circumstance indicating authorization or adoption."

Lee v. Illinois, 476 U.S. at 541-542, quoting Dutton v. Evans, 400 U.S. 74, 98 (1970)

(Harlan, J., concurring). Mark Lilly's testimony has withdrawn any basis the Court could

have for assuring his authorization or adoption of the original statement. His testimony is

also is powerful evidence of the effect cross-examination would have had to benefit Lilly.

c. This Court’ Lysis of reliabili flawed

This Court held that Mark Lilly's statement was reliable because aspects of the

statement were “independently corroborated by Barker’s testimony, by the physical evidence,

Such reasoning may be persuasive with regard to any Confrontation Clause arguments, but

the Court's language regarding the meaning of the statements against interest exception is

still persuasive.

and by the correspondence between Mark Lilly's account and the accounts of other persons

acquired by law enforcement authorities." Slip op. at 20 (no record citations provided). The

Supreme Court has expressly held that such comparisons of the out of court statement with

other evilence are insufficient to find the statement reliable. Idaho v, Wright, 497 U.S. 805

(1990). The Court held that to support a statement’s reliability on this basis “would permit

admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of

other evidence at trial,” and that the existence of such collateral corroboration "would be no

substitute for cross-examination of the declarant at trial." Jd, at 823. The Wright court

concluded that the reliability of the out of court statement must be based on the “totality of

the circumstances that surround the making of the statement." Id. at 820. Subject to this

proper test, the unreliability of Mark Lilly's statement is manifest. The record reflects that

Mark Lilly made his statement because he was scared when the interrogating officer began to

threaten him with life sentences and decided to "(t)hrow it off on somebody else.” A 3096.

Purthermore, any reliance by this Court on Hines v. Commonwealth, 136 Va. 728,

117 S.E.2d 843 (1923), is misplaced. In Hines, this Court determined that a statement

against interest was admissible so long as there was something “substantial other than the

bare confession to connect the declarant with the crime.” Jd. at 748, 117 S.E.2d at 849.

This standard was obviously intended to govern the admissibility of confessions of declarants

which exculpated the accused. Because the government, against whose case such a statement

would be admitted, has no constitutional right to confrontation, such a forgiving standard is

appropriate. A standard governing admission of statements which will divest the defendant

of his constitutional right to confront the witnesses against him, however, must surely be

Even if the Court determines it was correct to consider external evidence to determine

the reliability of Mark Lilly's statement, its conclusion based on the facts was absolutely

unreasonable. The Court makes its bare conclusion that Mark Lilly’s statement is corroD0-

rated by other evidence without any citation to or support in the record. In fact, the record

contradicts this Court's conclusion in many respects.

First, Mark Lilly’s statement is not consistent with the physical evidence at the scene.

The only physical evidence at the scene was the victim's glasses and Mark Lilly's money

clip. A. 1591-92, 1605. Mark Lilly stated, however, that he never got out of the car while

at the scene.

Second, Mark Lilly's statement is pot consistent with Gary Barker's testimony. Mark

Lilly stated that he was unaware of how the victim became undressed because he (and

Barker) never exited the car. Gary Barker stated that he and Mark Lilly both exited the car

and laughed at the victim's state of undress. A. 2062. Mark Lilly stated that the victim

was shot from a distance of ten to fifteen yards. A. 2268. Gary Barker stated that the

victim was shot at point blank range. A. 2148.

Third, the Court's assessment of the credibility of Mark Lilly's statement ignores

entirely Mark's Lilly's own testimony that he made the statement because he was scared and

ion of the totalit

of the devenmanete on appeal as it is prohibited from considering any facts not favorable tr

the Commonwealth. Slip Op. at 3.

———-

;

wanted to put the blame onto somebody else. A. 3096.

Il. THE COURT ERRED REGARDING THE VOIR DIRE OF JURORS

REGARDING PAROLE INELIGIBILITY

The trial court’s refusal to allow Lilly to voir dire the jury regarding the possibility of

a sentence of life without parole violated three interrelated, fundamental requirements in

death penalty cases: reliability, mitigation, and confrontation. See Skipper v. South

Carolina, 476 U.S. 1 (1986); Lockett v. Ohio, 438 U.S, 586 (1986); Gardner v. Florida, 430

U.S. 349 (1977). It is a well established Eighth Amendment requirement that a capital

sentencing authority must be able to consider “any relevant circumstance that could cause it

to decline to impose the [death penalty]. McCleskey v_ Kemp, 481 U.S. 279, 306 (1987);

Lockett, 438 U.S. at 605; Skipper, 476 U.S. at 5. “[T}he Court has refused to countenance

State-imposed restrictions on what mitigating circumstances may be considered in deciding

whether to impose the death penalty.” Walton v, Arizona, 497 U.S. 639, 649 (1990); see

also Mills v. Maryland, 486 U.S. 367, 374-75 (1988)("[T]hat "the sentencer may not. . . be

precluded from considering “any relevant mitigating evidence”’ is ... "well established_"")

(citations omitted); Grege v. Georgia, 428 U.S. 153, 204 (1976) ("[T]he jury [should] have

as much information before it as possible when it makes the sentencing decision. ").

Counsel and the court must be able to ensure that jurors will be selected who are able

to give effect to mitigating evidence. Mills v, Marvland, 486 U.S. 267 (1988). Refusal to

permit counsel to inquire of the jurors regarding parole also creates an impermissible risk

that jurors will be seated who will impose a sentence based on extrinsic and erroncous

information. Instruction or argument in this regard is not sufficient. Witherspoon v.

Illinois, 391 U.S. 510 (1968); Morgan v. Illinois, 504 U.S. 719 (1992). A juror might sit

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY ys

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY /

APRIL 1, 1996 APRIL 1, 1996

THE GRAND JURY CHARGES THAT:

On or about December 5, 1995, in the County of Montgomery, On or about December 1995, in the County of Montgomery,

BENJAMIN L. LILLY did seize from Alexander V. Defilippis a 1986 Dodge Aries BENJAMIN L. LILLY did use or display in a threatening manner a firearm while

belonging to Ezio Defilippis with the intent to deprive Alexander V. Defilippis carjacking the automobile in possession of Alexander V. Defilippis.

of possession of the automobile by means of the threat or presenting of a

firearm: these acts constitute the crime of carjacking.

= —_— ei _

sss pple: honors Ee VA. CODE § 18.2-53.1. :

' ;

4 ms |

A TRUE BILL &

“ = FOREMAN A TRUE BILL ved K |

WITNESS:

Investigator R. L. HAMLIN

investigator R. L. HAMLIN

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY

APRIL 1, 1996

THE GRAND JURY CHARGES THAT:

On or about December 5, 1995, in the County of Montgomery,

BENJAMIN L. LILLY, by force or intimidation, did seize, take and transport

alexander V. Defilippis with the intent to deprive him of his personal liberty

without legal justification or excuse; these acts constitute the crime of

abduction.

VA. CODE § 18.2-47; Punishment: § 18.2-10(e).

A TRUE BILL b Nn

FOREMAN

WITNESS:

investigator R. L. HAMLIN

————— eee ee

re NTGOMERY of |

yt COURT OF THE COUNTY OF MO |

IN THE CIRCU

APRIL 1, 1996

"HE GRAND jURY CHARGES THAT:

about ember £1995, in the County of Montgomery ie

oN i reatening manner a firearm W

Lag eh —

clothing, and other personal belongings:

ya. CODE § 18.2-58.

A TRUE BILL

WITNESS :

investigator R. t- HAMLIN

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY 6

APRIL 1, 1996

THE GRAND JURY CHARGES THAT:

On or about December { 1995, in the County of Montgomery,

BENJAMIN L. LILLY did use a firearm while robbing Alexander V. Defilippis.

VA. CODE § 18.2-53.1.

A TRUE BILL g) ay

FOREMAN

WITNESS:

Investigator R. L. HAMLIN

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY 7 VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY ?

APRIL 1, 1996

THE GRAND JURY CHARGES THAT:

On or about December 5, 1995, in the County of Montgomery, THE GRAND JURY CHARGES THAT:

LILLY did willfully, deliberately, and with premeditation kill and : On or about December 7, 1995, in the County of Montgomery,

BENJAMIN L. LILLY did use a firearm to murder Alexander V. Defilippis.

BENJAMIN L.

murder Alexander V. Defilippis in the commission of robbery while armed with

a deadly weapon.

VA. CODE § 18.2-53.1.

VA. CODE § 18.2-31.4; Punishment: § 18.2-10a). y, .

A TRUE BILL K: Mists

Y | FOREMAN

A TRUE BILL Lt K- Mam |

FOREMAN

| WITNESS:

investigator R. L. HAMLIN

WITNESS:

investigator R. L. HAMLIN

VIRGINIA:

IN THE CIRCUIT COURT OF THE COUNTY OF MONTGOMERY 9

APRIL 1, 1996

THE GRAND JURY CHARGES THAT:

On or about December 5, 1995 , in the County of Montgomery,

BENJAMIN L. LILLY, having previously been convicted of a felony under the

laws of this Commonwealth, did knowingly and intentionally possess a firearm.

VA. CODE § 18.2-308.2.A.(@); Punishment § 18.2-10(f)

A TRUE BILL

FOREMAN

WITNESS:

Investigator R. L. HAMLIN

' 44

Testimony of Ron Lucas / Direct

well, it’s warm. And I said, Mark, is the gun hot? He

said, yes, at which time I handed the gun back to hin.

I put the bullets back into the chamber and handed it

back to him and about that time both Gary Barker and

Benjamin Lilly came out and approached the car and at

that time, I remember Gary reaching in the back seat and

pulling out a 12 gauge shotgun and, ah, ‘Ben Lilly wae

right behind him or close, close there with hin, and Ben

Lilly said, put the, the God damn guns away, and that’s

pretty much all I remember the guns being put into the

trunk of the car. I got out of the car and went back

into Cowboys and they weren’t there very much longer.

Q. Did they come back into Cowboys?

A. I don’t believe so.

Q. So, you saw a shotgun and a pistol?

A.: Yes, sir.

Q. And you said you unloaded the gun and it

was a revolver?

A. Yes, sir.

Q. And then reloaded it?

AO I reloaded it, yes.

192

- ‘Testimony of David W. Oxley / Direct

There was a graze wound next to the entrance wound where

the bullet grazed the lip, entered the lip, passed across

the lip and exited the other side. Ah, a little bit of

bruising on the inside of the lip, no teeth were

fractured or missing. No bullet was recovered. Wound

Number Two (2) was Senate at the angle of the left jaw,

just below the lobe of the left ear, in this region

(pointing). This wound was oblique and it was oriented

backward. There was no, no gun shot residue incidently

around any of these wounds on the skin. The bullet

passed backward through the soft tissue by the jaw and

exited the back tissue of the soft tissue of the back of

the neck. This bullet struck no vital structures and was

not a lethal wound. No bullet was recovered. Wound

Number Three (3) was located in the right temporal area

just above the right ear and at this point (pointing) .

This wound was surrounded by a emall amount of bruising.

Ah, the wound path was from right to left and horizontal.

The bullet passed through the brain, both halves of the

brain, and was recovered beneath the left temporal bone

in this region (pointing). This bullet was a lead alloy

534

— |

1973

lan team

Testimony of David W. Oxley / Direct

and two feet away?

A. No. Greater than that distance.

Q. Oh, -

A. How much greater, I can’t say.

Q. So, it would be somewhere beyond two feet?

A. Yes, sir.

Q. Now, you indicated, ah, that there was

bruising around the one in the right forehead -

A. In the right temporal.

Q. The right temporal. And what does that

indicate?

A. Nothing. It’s a nonspecific finding.

Q. Did it indicate, did the examination of

the body indicate that there had been bleeding -

AD There had been bleeding, yes, from all of

the wounds. °

Q. Now, can you tell the Court the wound to

the lip. There was a slight graze and then it passed

through. What kind of effect would that have on a person

if they were hit by that kind of shot?

A. It would be painful, but not disabling.

536

1975

Testimony of Patricia Taylor / Crose

Q. Okay. So, it was on the back side of his

jeans then?

A. That is correct.

Q. Were you able to amplify that? I didn’t

hear that, the, and he may have asked you that question.

Were you able to amplify that blood that we’re, that you

found on the back of those pants?

A. No, no amplification results were obtained

with that particular sample.

Q. Based on what you know about this

situation, can you testify whether that’s Benjamin

Lilly’s blood, and there, just so you’ll know, there’s

been evidence that there was a goose that was killed and

I’m going to show the witness Exhibit Eleven (11), blood

on the back of the car, or a reddish material appearing

on the back of the car and a dead goose. Can you tell us

whether that blood cand from that goose or can you tell

us where that blood came from? Whose blood that is?

A. No, I cannot based upon my testing.

Q. Okay. Now, you indicated that on, in your

report on October the ist, the request for examinations

577

2016

- kestumony of Gary Barker / Direct _

A. No, sir.

Q. So, how did you end up at Mr. Sanders or

Mr. Saunders?

A. We just drove up there and was going to

drink a little bit with him and he wasn’t there and we

decided just to go on in and help ourselves.

Q. And how did you go in?

A. Busted out the front glass in the door.

Q. And went inside?

A. Yes, sir.

Q. Did you all stay there for a while?

A. Nah, we was in and out pretty quick.

Q. All right. Did you take anything while

you were there?

A. Yeah.

Q. What did you tske?

A. Nine (9) liters of liquor and three (3)

Q. Different kinds of -

A. Yeah.

Q. Liquor?

594

2033

Testimony of Gary Barker / Direct

Yes, sir.

Were most of them full or -

Yeah, they was all full.

And the guns?

Ah, all of them had a few shells in then.

Okay. Was anything else taken besides the

liquor?

A safe.

Where did that come from?

Ah, behind his bar.

What kind was it?

Ah, it was, I guess like a fireproof safe.

What was it made out of, if you know?

Ah, I’m not sure.

Okay. And what did you do with those

items after you took them?

safe, ah,

Ah, we was, we was drinking liquor and the

we got into it and it wasn’t anything

worthwhile in it.

into it?

Now, where did you take the safe to get

595

iesumony Ol Wary Barker / Direct —

got fired.

Okay. And what happened there?

Ah, the shotgun got fired and the rifle

Were they fired at anything in particular?

Yeah, at some goose, geese.

And where were they?

At, in this church yard.

And what did you fire?

I fired the rifle again.

And do you know who fired the shotgun?

I’m pretty sure Mark did.

Did you have either or both of the geese?

Ah, one (1) of them was flopping, it got

away, but the other one (1) died.

Q.-

And what did you do after it died?

Ah, threw it up in the trunk.

Do you know who carried it to ie trunk?

I don’t remember.

I show you Commonwealth’s Exhibit Number

Eleven (11), the trunk, a photograph of a trunk with it

open with a goose in it. Is that the goose that was

604

2043

ni, eee

“

——

Testimony of Gary Barker / Direct | .

Testimony of Gary Barker / Direct

Price’s Fork Road?

Q. Did you turn -

A. Ah, the car tore up.

A. On oncoming traffic.

Q. Do you know where it was near?

Q. And did you turn it off onto 4 side lane?

A. It was near the store, ah, - ~

A. Yeah.

Q. Did you make it through the stop light

Q. And that’s where it stopped?

there? |

A. Yeah.

A. Yeah, as a matter of fact we did and I

Q. Was it on the right side or the wrong side

had, and it stopped going up the hill on the other side

of the road then?

of the light.

A. It was on the wrong side.

Q. All right. Then what did you do? -

Q. Okay. Then you said you tried to take the

A. I drifted it back down to where it was

setting when y’all found it.

A. Yeah.

Q. All right. And what did Mark and Ben do?

Q. Were the tags taken off?

A. Ah, well, we, ah, * 4s trying. to take the

, A. That’s what we, we was trying to get the

tags off and get the liquor and the guns out of the car. . ) ;

tags off and I don’t remember if they come off or not and

Q. _ What did, let me back up & second. What '

we was getting the guns and the liquor out of the car.

were they doing while you were drifting the car back?

Q. And what were you going to do with them?

A. Guiding me.

A. Ah, well, we would stash them in the woods

Q. All right. And you went 4 long way, if ft

. or, or to steal us a car and get out of there.

remember correctly? |

Q. Okay. And who had the rifle at that

A. Yeah.

point?

611

612

lesumony Of Wary Barker / Uirect

A. Yeah.

Q. And did you see where Ben went?

A. Yeah.

Q. Where did he go?

A. Over to that boy.

Q. Was the boy near a car?

A. Yeah. f

Q. And what was he doing? s

A. Just looking at his tire.

Q. Was the car running, or do you know?

A. Ah, I think it was running.

Q. Was he looking at a front tire or back

tire?

A. Front tire.

Q. Driver's side or passenger's side?

i _ Passenger’s side.

Q. And Ben went up to him?

_A. Yes.

Q. And where were you all then?

A. Walking towards the pine trees.

Q. and @14 you cee what happened then?

614

2953

oor

Testimony of Gary Barker / Direct

A. Yeah, ah, he hollered - come on - and went

over that way. He had the gun pointed at him and, ah, me

and, I got in the passenger’s side of the cer and Mark

got in the back of the car in the passenger's seat and

Ben told the boy to get beside Mark and then Ben got

behind the wheel.

Q. All right. Now, when you came up, was the

person still standing by their front tire?

A. Ah, no, he was more in front of the car

Q. And where was Ben at that point?

A. Ah, right at the right, at, right at the

driver’s front fender.

Q.- Did you see if Ban had anything in his

hand?

A. Yeah, be bad the pistol in his hand.

Q. And what was he doing with the pistol?

A. Ah, just telling the guy to come on and

give me your money or something sort ef in that, of

somewhere in that area.

Q. And did you see anything change hands

615

2054

Testimony of Gary Barker / Direct

between the two (2) of them?

A. Yeah, I seen him hand him his wallet.

Q. All right. Did you see any bills or

anything?

A. Yeah, it looked like maybe just like one

(1) -

MR. TURK: Your Honor, I would object.

I believe he’s leading the witness through the last

THE COURT: All right, sir. Just

rephrase them. You don’t have to repeat the ones that

have already been answered.

Q. And then the person got in the vehicle?

A. Yes.

Q. What did you and Mark do when the car

A. We got in. We got in the car.

Q. Did you look towards the person?

A. No, looked away from him because of the

overhead light in the car.

Q. He got in the back seat?

616

lestumony of Gary Barker / Direct

A. Beside Mark.

Q. Ben wae driving at that point?

A. Yes, sir.

Q. And where did you go?

A. We started down towards Whitethorne.

Q. Back down Price’s Fork from where you had

come?

A. Yes.

Q. And where were you going?

A. Ah, just basically just down the road.

Ah, you, we just was getan to drop him off in, where he’d

Whitethorne.

Q. All right. Did the person talk to you all

while you went down?

A. Yeah, he, he, ah, told us that, ah, he’d

have of, ah, gave us a ride if we had of asked and, ah,

and told us if we would go back and get his friend, then,

ah, back at the store, then, ah, he would take vw

wherever we needed - go.

Q. Did you all turn around?

617

2055

2056

Q. Ben was still driving at this point?

, Yes, at this point.

Q. And you pulled into Whitethorne?

A. Yeah.

Q. And what happened when you got there?

We'd told him to close his eyes so we

ould get out of the car because -

Q. Who is we?

A. Me and Mark. Because he had alreacy seen

Ben‘s face and, ah, we told him to close his eyes

Q. And did you and Mark then get out?

A. Yeah, when he closed his eyes.

Q. And who else got out?

A. Ben got out.

Q. Now, did anybody have any firearms at that

time?

A. Yeah, the, ah, the pistol was, ah, in, ah

the front of Mark’s pants.

Q. Did Mark have the pistol back then?

A. Yeah. It went back and forth between

618

Testimony of Gary Barker / Direct

Q. And Mark was in the back seat with him?

A. Yes.

Q. sad what did you do with the rifle?

A. It was still laying in the car.

Q. What part of the car?

A. Ah, in the front where I was erin. In

the front passenger’s, in the floorboard.

Q. Do you know where the shot gun was?

A. Ah, I think it was in the floorboard too,

in the back floorboard.

Q. Now, the shotgun, do you recall how much

ammunition you had for that?

A. A, ah, I believe, I’m pretty sure we only

had two (2) shells for that and one (1) of them was shot

at the goose. :

Q. Everybody got out at Whitethorne?

A. Yes, we sure did.

Q. Was the car still running?

A. No.

Q. Were the lights on?

619

2057

2058

can’t tell if it’s Twenty-eight (28) oF Thirty-eight

A. Yeah. The, ah, not the, ah, not the

: | (38), photographs of that area in the daylight. =o ye

headlights, but the light, marker lights, parking lights.

‘recognize anything in these pictures?

Q. So, the headlights were on? A Well, I thought it was railroad ties, but,

A. No, the headlights wasn’t on. It was the

yeah, the house.

parking lights. | 9. Okay. Would you point it out to the jury.

Q. The little yellow ones? | .

. | the house on Number Thirty (30)? .

A. Yeah.

; A. Yeah. (Pointing).

‘ Th light

Q e warning ghts? Pa i this big stack -

A. Yeah, on the side. |

A. Yes.

Q. And which way had you all come in? If you 9 a. . call the railroad ties?

look over here to this diagram, down to i ross

agr the end is ac | A. Yes, it was dark really.

the railroad tracks is apparently where you enter, is . ue bouts did you have the car?

that correct? A ab, at ld be back this way (pointing) -

a Yeah, it’s only one (1) way in there. : rf ‘

li Back towards there.

- Okay. | : . , Number

: . | Q. Okay. If you look in this picture

A. And one (1) way out. my EPs | Fen.

Twenty-nine (29).

Q. And where did you go after you went in? os ‘ Do you need to see this?

A. Ah, there was a big stack of railroad ties —_s I'd like to. The witness

and stuff and that’s all I remember. a ws t have a right to see which, where

a examined and

Q. If I could just show you Commonwealth’s ,

be’s at, and what he’s -

Exhibits Thirty (30), Twenty-nine (29), and I’m sorry, I

621

620

2060

2059

Testimony of Gary Barker / Direct

THE COURT: You can have a, you can

look at it. Go ahead.

A. Okay. It was back this way somewhere

(pointing).

Q. All right. The house would be down here

or the -

A. Yeah.

Q. Or the train station, whatever?

A. Yeah, it was across there.

Q. And were you all in one side of the car?

A. Yeah.

Q. Which side was that?

A. That, ah, that would be the driver’s side.

Once we’d all got out.

Q. What happened after you got out?

A. “Ah, Mark told him to walk and, ah,

(pausing) and Ben told him to take his clothes off.

Q. Did he take his clothes off?

A. Down to his underwear and his socks.

Q. What happened to his clothes?

A. They got threw in a river.

622

Testimony of Gary Barker / Direct

Q. What happened to him there after he took

them off, if you know?

A. At the time, I thought it was funny. I

guess we all did, and, ah, -

MR. JENKINS: Well, Your Honor, we opject

to him speculating on what the other people thought it

was.

A. Ah, -

THE COURT: - Yes, but I mean he can

certainly testify to what -

MR. JENKINS: Said it was funny as far as

he was concerned.

A. Basically, him agreeing though.

THE COURT: To, he would testify to

what he felt.

MR. JENKINS: I was making an objection, son,

to the Court.

THE COURT: ~- Go ahead and answer the

question that was asked, but just limit your answer to

your feeling.

A. Ah, well, all right, I thought it was sort

623

——_

- — i <a

2062

a Oe a eee

Testimony of Gary Barker / Direct

of funny and, ah, because he’d have to walk to a, to find

a phone in his underwear and his socks, I mean.

Q. Now, did you have any conversation with

him before Mark told him to go on or Ben told him to take

his clothes off?

A. I don’t recall.

Q- And which way was he walking?

A. Ah, towards, ah, the same way we came in,

that way. There’s only one (1) way out and one (1) way

in.

Q@. All right. And how far had he walked

after his clothes were taken off?

A. Fifty (50) yards or so, or fifty (50) feet

or so, I’m not sure. It wasn’t far.

Q. And after he started walking, what did you

do?

‘

I got in the driver’s seat of the, of the

car.

Q. And what did Mark do?

He got in the passenger’s seat.

Q. What did Ben do?

624

' 2063

= oe sa a

estimony of Gary Barker / Direct

A. Ben got in the back and he told Mark to

give him the pistol back and he got out of the car and

‘run up to him (pausing) and he turned him around and shot

hin.

Q. Did you hear the gun shot?

A. No, I seen flashes.

Q. One (1) or more?

A. More.

And what happened to this person as the

I saw him throw up his arm (describing).

Q. And then what?

A. (Pausing) Fell on the ground. Just

staggered back and fell on the ground.

Q. Did Ben come back to the car?

A. Yeah.

Q. Right away or did he delay?

A. Came back to the car.

Q. And where did he get in?

A. In the, back in the back.

Q. And after he got inside, was anything

625

2064

Testimony of Gary Barker / Direct | :

said?

A. Yeah.

Q. And what was said?

A. Me and Mark was asking him why did he do

it back and forth and he said - because I’ve bee). in the

penitentiary and I ain’t going back. He said that boy

saw his face.

Q. Did you leave this area right away?

A. Yeah.

Q. Who was driving?

A. I was.

Q. And where did you go?

A. It was some back roads. We winded, well,

we went to the river first down in McCoy.

Q. Did Benjamin Lilly say anything else there

at the ein: other than what you testified to? 7

A. As we started moving the car a little bit

and as the car started moving some he, he asked, he said,

- give me a fuckin’ beer.

Q. You went on down the road?

A. Yeah.

2065

Testimony of Gary Barker / Direct

Q. Did you ever get any beer?

A. Yeah.

Q. And where did you do that?

A. Ah, with the money that, that, that guy

had gave Ben. He went into the store. That -

Q. Did you and Mark go in?

A. No.

Q. And what did Ben come out with?

A. He come out with ah, I don’t remember if

it was a twelve (12) pack or a case and a pack of

cigarettes.

Q. What kind of beer, if you remember?

A. Busch Light, or Busch, one of the two.

Q. Who was driving then?

A. I was.

Q.. And where did you go from the store with

the beer?

A. Down to the river, down to McCoy River.

Q. And what did you do down there?

A. Threw away anything that might have our

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EY EER a OE eek . [Pog ee ian ny ae nee

Testimony of Gary Barker / Direct

Q. Now, why would you want to carry the gun

A. It was all three (3) of us.

in?

Q. So, at that point, you had the vehicle,

A. We was going to rob it?

you had the beer. Did you still have all three (3) guns?

Q. Why were you going to rob it?

A. Yes.

A. To get money to get out of town.

Q. Had you gotten rid of those?

Q. Did you have any money with you?

A. No, we still had all three (3) guns.

A. No, not that I remember.

Q- And who drove away from that place?

Q. Do you know if Mark had any?

A. I did.

A. No, I don’t think so.

Q. And where did you drive to?

™ —

Q. Did Ben indicate whether he had any other |

A. To the first store that got robbed. :

than what he bought the beer with?

Q. Is that over in Giles County?

A. rf it was any change off of it, that would

A. Yeah.

Q. Okay. Who went, where was everyone else

| Q. Where did you all park in relation to the i

in the car? .

store?

A. Mark was still in the passenger’s seat and

' A. Right out in front of it.

I was driving and Ben was in the back.

Q. Had you, while you were talking about

Q. Okay. And what happened as you got to the

getting money to get out of town, did you talk avout some

store?

place to go?

A. Well, at first we passed it and then

}

A. Yeah. ) |

turned around and went back and, ah, we was arguing on |

Q.- And where were you going?

who was going to carry the gun in.

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630

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| | 2069

Virginia.

inside?

‘Testimony of Gary Barker / Direct of

Ah, Ben said he knew some people in West

That we could hide there for a few days.

So, whe all ended up going into the store?

All three (3) of us.

Do you remember who went in first?

Ah, no,

Who ended up carrying the gun?

I did.

And why did you take the gun?

I really don’t know. I don’t know.

Did Ben say anything about taking the gun.

Yeah, he said he did what he had to do

already. Something in that area.

So, you all three (3) went inside?

Yes.

What did you do?

Ah, took the gun and showed it to them and

told them to give up the money.

And when you said them, there was more

than two (2) people in the store?

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Testimony ‘of Gary Barker / Direct

No, the guy had to get back off of the

floor and open it.

And the cash register came open?

Yeah.

And who took the things out of it?

Mark.

You still had the pistol? |

Yes.

Did a still have it out?

Yes.

And did you take anything?

Ah, ah, the, ah, the stereo.

Okay. The little radio -

Yeah.

What else besides what was in the cash

A. Ah, some more beer and some gloves and

stuff. I don’t remember exactly what all it was.

Q. Were the gloves on a display?

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iesumony 01 Vary warKer / virect

up. What did you do with yours?

A. I stuck it in my front pocket.

Q. And where did you go from there?

A. Ah, to the next store.

Q. Was that in Pembroke?

A. Ah, yeah. Ah, Bill Williams’ store.

Q. It’s sort of right there on the main road?

A. Yeah. :

Q. You pulled in, and where did you park?

A. Ah, we were, well, out front.

Q. Okay. And what happened after you got

there?

A. Ah, we all got out and, ah, «gain we was

arguing who was going to do it and, ah, I said, you know,

I’1ll do it, you know, basically, so I grabbed the pistol

again and Ben got under the driver’s seat and me and Mark

went in the store. |

Q. And what happened when you went in the

store?

A. Ah, I took the gun out and I told her to

give me the money.

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2076

ower

. o- eeeeeet tt

Testimony of Gary Barker / Direct

Q. And there was a woman woxing?

A. Yeah.

Q. And did she give you the money?

A. No.

Q. Did she tell you why she wouldn’t give you

the money?

A. She said they didn’t have any.

Q. And who else was in there with you?

A. Mark.

Q. Where did you have the pistol?

A. Out in front.

Q. In your hand?

A. Yeah. |

Q. And then what happened?

A. Ah, Bill Williams came into the store and

grabbed me. ’

Q. From behind, the side or the front?

A. From behind, from like my side, he rushed

me.

Q. And then what happened?

A. I, I got loose from him and, ah, and, ah,

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Testimony of Gary Barker / Direct

she said, - here take it - and she threw a bag of

quarters or some, a whole bunch of change onto the

counter and we grabbed it and run out of the store.

Q. Now, these coins, were they in wrappers?

A. Yeah.

Q. Like they come from the bank?

A. Yeah.

Q. After you got loose from Mr. Williams, did

you tell him anything?

A. No, not that I recall.

Q. Did you do anything with the pistol at

A. No, not that I recall.

Q. You ran outside and then what?

A. Ab, jumped in the car and, ah, that’s

when, when it tore up a little ways below the store.

Q. And this is the car you got from the

convenience store in Blacksburg?

A. Yes.

Q. Then where did you jump in the car?

A. I jumped in the back that time and Mark

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2078

Testimony of Gary Barker / Direct

was in the passenger and Ben was driving.

Q. All right. And who grabbed the change

’ dnside?

A. I don’t remember if it was me or Mark.

Q. And you got in the car?

A. Yeah, and, ah, -

Q. Where aia you go from there?

A. To where it tore Up across the bridge,

Pembroke bridge.

Q. Was there anyone behind you?

A. Yeah, Bill Williams. The reason I know it

was him because the car was sitting in the parking lot

the one, the one that we went and robbed, when we started

to rob the store. I recognized it when it got behind us.

Q. And how far did it follow you?

A. It, it got, it was following. us. across the

bridge.

Q. Did you do anything about it following

you?

A. Yeah, I took the rifle, I was in the back

of the seat and I took the rifle and I pointed it out the

640

zZ073—

window, pointed it up into the air and fired to let him

know we had guns and, ah, he backed off.

Q. How much further did you go before the car

stopped?

A. Not far.

Q. Now, did you, did the car stop on its own

or did it have some kind of problem?

A. It, ah, it, ah, I guess the engine locked

up. It just stopped on us.

Q. What did you do with the car?

A. We was getting stuff out of it, ah, and

Randy Tilley came around the corner and Mark run over the

hill and I run over the hill and I was, and, ah, I

thought Ben was behind us, but he wasn’t and I fell onto

some rocks and Mark kept going and I set up on a rock and

I seen them arresting Ben.

Q. Now, you said you were getting things out

of the car?

A. Yeah.

Q. What were you getting out the car?

A. The stereo and the beer and stuff.

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2080

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Ts = =) evessmws § S764 G&4

Q. Could you see where the car was?

A. Yeah, I could see them walking back and

forth past it.

Q. And you saw Mark, I mean you saw Benjamin?

A. Yeah, I saw them arresting him.

Q. Where sas he when you first noticed him?

A. de was standing beside the, on the

passenger’s side of the car at that time and he had his

hands in the air and they made him drop to his knees.

Q. How long did you stay there?

A. Till they got me.

Q. Do you know how long that was?

A. Nah, five (5) or ten (10) minutes.

Q. Could you see all the officers?

A. Yeah, : watched them walk back and forth

past me.

Q. Were their headlights on?

, Yeah, and the blue lights and everything

else.

Q. And how did you end up in custody?

A. Ah, one of them had heard me.

643

2082

Testimony of Gary Barker / Direct

Q. Heard you what?

A. Ah, ah, I was sending a message to my Mon.

Q. How were you sending a message to your

Mom?

A. I was, just, just told them to tell my Mom

I loved her and that was it. I had the gun in my mouth:

I was going -

Q. That was the deer rifle?

A. Yes.

Q. Were you still sitting?

A. Yes.

Q. And where was the butt of the gun?

, It was at my feet.

Q. And the top was in your mouth?

A. Yes.

Q. Was the hammer cocked?

A. Yes.

Q. You didn’t pull the trigger?

A. No.

Q. Why did you want to pull the trigger?

A. (Pausing) From what I seen and, and, and,

644

2083

Testimony of Gary Barker / Direct

and for what I did.

Q. Why didn’t you pull the trigger?

A. Because something deep down was telling me

that, ah, that if I, if 1 had of then they would have

just put it on me and all of it on me and, you know, I

didn’t want my family to hate me, you know.

Q. So, you put the rifle down or threw it

A. Yeah, I threw it behind me.

Q. Now, when you were out there, did you

hear, did the police have loud speakers?

A. Yes.

Q. Did you hear then calling out names?

A. Yeah.

Q. Did they call out your name?

“e _ No.

Q. Did they call out Mark Lilly’s name?

A. No.

Q. Do you remember any of the names they

called out?

A. Yeah. They called out ah, ah, ah,

645

2084

Testimony of Gary Barker / Direct

scene where the car broke Gown?

A. No. They, ah, they, ah, brought him in

last. They found him walking on the side of the road and

I didn’t see him until early the next morning.

Q. All right. Did you agree to talk to the

police?

A. Yeah.

Q. And you said, is that what you meant by

upstairs?

A. Yeah. .

Q. And you spoke with Lieutenant Price, is

that right?

A. Yes.

Q. And what did he ask you about?

A. He just asked us what happened, asked me.

what henpened and, that night, what was going on.

Q. Did you tell him anything about the names

they were calling out?

A. Yeah, they asked me was that who I was

with and I told them, no. I told them I was with Mark

and Ben Lilly.

647

2086

Testimony of Gary Barker / Cross

A. Yes, sir.

Q. At that point in time, did you point the

‘gum at A. J. Falla?

A. No, sir.

Q. You didn’t threaten him that evening?

A. No, sir.

Q. Now, did Ben have any of the weapons when

he was at A. J.’s house?

A. Yes, sir.

Q. He did, and you’re certain of that?

A. Yes, sir.

Q. Okay. Now, I believe you also indicated

that you went down to some trailer parks after you shot

the goose, is that correct?

A. Yes, sir.

Q. And then you stopped at a trailer park

across from the rock quarry, I believe that’s on Jennelle

Road, is that correct?

A. Ah, I’m not sure which road it is, but

it’s -

Q. Across from the rock quarry?

2121

Q. And that’s in Montgomery County?

A. Ah, yes, sir.

Q. Is it near the road on Holiday Ford?

A. Yes, sir. |

Q. Okay. So, if that was Jennelle Road, then

that was the road that you were on?

A. Yes, sir.

Q. Okay. Now, did at some point in time

during that evening, when you got to that trailer park,

did Mark threaten anybody with that firearm, pull it out

and pull the hammer back?

A. Wo, sir.

Q. All right. And you’re certain of that?

A. Yes, sir.

Q. _ Now, aid you indicate to A. J. that the

property was stolen that was in his home?

A. Yes, A. J. knowed it.

Q. All right. Did you tell him where you had

gotten it from?

A. No, sir.

683

2122

Testimony of Gary Barker / Cross

5th?

A. No, sir.

Q. You were not driving Ben’s car without Ben

being present?

A. No, sir.

Q. You did not tell them, obviously, since

best friend and never regret it?

A No, sir.

Q. Now, let’s go to about 6 o’clock. You’ve

indicated that you were out at Cowboys, is that correct?

A. Some, well, I don’t remember the exact

time, but we at Cowboys, yes.

Q. Was it getting dark?

A. Yes, it was getting dark, yes.

Q. Amd I believe you indicated that Mark

Lilly got out in the car with somebody?

A. Ah, me and Ben got out of the car and, ah,

a guy got in the car with Mark.

Q. A guy got in the car with Mark?

A. Yes.

2124

Testimony of Gary Barker / Cross

Q. Was his name Ron Lucas?

A. I have no idea.

Q. Don’t know what his name was?

A. No, I don’t even remember what he looks

like.

Q. And you came out there later and pulled

out a gun, is that smenet

A. Ah, mo, that’s not correct. Ah, -

Q. But you did pull out the rifle?

A. Yes, but I didn’t come, I, I, I had stated

that, ah, that, ah, when we got out of the car and the

guy got in the car with Mark, I was showing the rifle to

somebody, yes.

Q. Well, Ben didn’t come around and tell you

to put those damm guns away and take the rifle away and

put it in the trunk? |

A. Definitely not.

Q. Definitely not. Now, the prosector asked

you, @id Bill Williams, did you say anything to Bill

Williams, did you do anything with the gun? This is over

at the store over in Pembroke, the second robbery, and I

2125

Testimony of Gary Barker / Cross

believe you indicated that you didn’t, is that correct?

A. Yes, sir.

Q. You didn’t tell him that you would blow

his head off, did you? .

A. No, sir.

Q. Didn’t point the gun at his forehead, did

you?

A. No, sir. I was waiving it around, but I

wasn’t -

Q. You never pointed it at him or never told

him you would blow his head off?

A. Wo, sir.

Q. Now, did you ever state to, do you know

who Bo Hutchinson is? Clarence Hutchinson? |

A. Ah, yeah, I was in jail with Bo a while

back, a good while back.

Q. About a year ago?

A. Ah, way over a year, yeah.

Q. Okay. Did you tell him that you would be

coming back to prison for murder?

A. No, I sure didn’t.

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Testimony of Gary Barker / Cross

you shaking, excitec?

A. That’s the first store, isn’t it?

° Q. The first store, Eggleston.

A. Yeah, ah, well, I was yelling. Ah, I was

excited. It was -

Q. Were you pointing the gun at him?

A. I, I do not remember. Ah, I may have.

Q. Youmay have. You don’t remember pointing

the gun at hin?

A. No, no, not directly at him, no. I

Q. Do you remember -

on A. Holding it out. ?f knew they seen me.

Q. You knew they seen you. You were holding

it out because you were robbing the store?

ty Yeah. Well, I, I had him lay on the -

Q. You had him, had him lay on the floor?

A. I had him lay on the floor and, ah, ah,

you know, I couldn’t see him no more and he couldn’t see

me either, so, you know, -

Q. But you, you didn’t tell him not to look

700

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Testimony of Gary Barker / Cross

Q. With the gun in, in your mouth?

A. Yeah.

Q. And they heard you talking to your, about

your Mom or to -

A. Ah, somebody came by. One of the cops

that was walking through and I said, you know, something

like - Tell my Mom I’m sorry or something like that, you

know, and or I love her, or something like that, and then

about, I don’t know, twenty (20) or thirty (30) of them

pointed guns at me and told me to put that one down and

kind of woke me up 4 little.

Q. And you threw the gun away?

A. Yeah, I threw it behind me.

Q.- After the put the twenty (20) or thirty

(30) gums on you?

A. Yeah.

Q. Okay.

A. I didn’t have a standoff with then.

Q. Well, you had a rifle with a scope on it,

is that right?

A. But it was in my mouth. It never was

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Testimony of Gary Barker / Cross

pointe

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