# Appendix — Lilly v. Virginia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0291%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1999 - **Citation:** 527 U.S. 116 ## Text BQ e.5LQT 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 we 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, . . _ . , . -99 V: 199 SOUTH EASTERN REPORTER, 2d SERIES JL& .¢ . g ’ 7 gy | ™t ; « 1.8 i 4 al i | mi! : Re ymin Lee LILLY na ‘ Spe e¢ at . COMMONWEALTH of Virginia ) ? ” " it - See P 7 Record Nos IT I385 972 Ih error OY ne Cu As “ / ) a 10 ; ‘’ W ~ . S.E.2d 4, 7-8 i ~ - y a [4.5] Fina b0a er that tr ] I rré { 4 ' extend ti ‘ ‘rec ? { ¢ B ara ‘ ‘ , at tne ‘ { 4 “ pe ) \ pres r ‘ ind pe re | ersed rm . tn PI . } . ‘ rrone¢ pr . ~— mn r wad 4 | ne . ‘ 3° tent ‘ ig ra ‘ ‘ y . 4 (ré le 245 \ : t yor 44 S.I 74 5 BUS ar . 05 (1994). F rmore, gr 2) delenda! . ‘ ruc at " ‘ rye er r . give! ~ : > ’ ‘ rdinam ricial e ; : ai If ne tne ra ar t ng F lal h 9444 gy pt . 07, 111, 418 S.E.2d 879, 881 (1992 , i ' : , I . ppo! | | iva ‘ : at r “ gl é esti ' ig ’ ' ng tne is . . and referring é rdinance i eting Z alread 1€ tr ar n ig e I g ur } . \ ‘wu yy | Criminal Law t hay ; (riminal Law Jury 85 jur LOS Jury bo 2.15 LILLY + COM 522 (Va 7. Jury S.E.2d ‘ ry . , : ~ ir ; ; ‘ Lal ik y 1] 1998 aH) : eY sé for 4 ‘ Iror who té | ng r dire that he was a yuan é th police chief, to whom defendant ade incriminating statement as not mar esuly erroneous in capital murder case. even hougt r aiso Stated that he might give re credence to chief's testimony: upon fur er examination, juror stated that he could et aside his acquaintance with chief and , e festiry r a Witnesses O equal ine Jury 90 Refusal to excuse for Cause juror who ated during voir dire that he was second sin and “real good friend” of law enforce ent official who was pr spective witness for mmonwealth was not manifestly errone us capital murder case; juror testified that n relationship and friendship would not be tor ir nsidering that official's testimony fainst that of other witnesses Jury 100 Jury : . ’ ’ not enti . al for ‘ f Musée . , > - I 1ad ner + " abe arti ele lant toct . j " i ] pre ; 83(1 , f* _ ‘ : ) thr: = . - " : *> , 7 , 7 ’ : . " ‘ = 9) ’ , ’ > > ne ~ , nul . . ik na ‘ id [ . titied : >t t ‘ . _ iT | ’ ?, ’ 5 ‘ j ‘ I j De ia ) . nm ~ { + } ‘ | ‘ ; mu I i4 . riminal rim riry rin inal I I 199 SOUTH EASTERN REPORTER, 2d SERIES > herd 7 LILLY v. COM 27 28 os 499 S E.2d 52 ' 770 ‘ 7 ‘1. . : | i ‘ ; Law i PROCEEDINGS Hi ‘ ; I] et EVIDENCI ar le a 2 : A i » . : ; , ; i wy i r¢ ; ; e da i ‘ “ : | ' , } m6 ; ‘ } 4 aid ‘ +} | ‘ : i r ’ ’ vy ‘ e eme , 7 ; 7 mn " f Z } he iVi é E " Fr ' . ‘ vlié tian toct . : 1 ag eihhin > } am ru p tr af the + t S LILLY Cite as 499 S.E ; ‘ , j ; ’ ‘ 2 he ¢ a6 ‘ ‘ ‘ ‘ - e ) . en ‘ mer sta ‘ i ; ; . . nte va ‘ ’ nq t 4 i . } , ; ‘ iid not « ™ . 490 ‘ ’ .. ’ tr ‘3, - -~ nrelimir Whit ++ ‘. ‘ -" ‘ Lat ‘ } } : ‘ ry ’ ed rnino } er ‘Ty ; | ‘ na torr ete ‘ 7. } * st Ya Dee - =, 5 ; ru i / ’ eutenalr t Sherif! (ft ’ that . eT T l¢ hanric ¢ rer a i “ e : . ia & ; ar . a > a } ; z COM Va. 535 $22 (Va. 1998 . ; : y " f +) ang rar y he . @ eis | ‘ ntar Price firths ec ed tha | y's no } , bacant > = 1 oot wid ¢ . meat ’ Au, EE iu riiy roer re ‘ > ’ , ncede that he have peer i . t? : - vod 1 tak the r b4 evel Lill nrandg tha ry " ‘ rhe Te i that the ‘ , ne eas the evidence f his re I arT nt 1 a US¢t 1 i weiendgani.s 5 y ’ iry ’ fo ‘ ‘ ea an aati . > , vr he bas , Ff Fe) Ve a i . Vv it a : - that evidence ol lefendant s refusai to sut } " ; Sor “Ing mit ¢ a gunpowder residue tl alter na g ; , , > een iniormed, é! ne tnat the tes as dry | tian f +} ntar iS Inacarmuss e asa a | } +? nor "nt mont _ net eplf iy = iT k va i-] I ’ r ef, 1e! the , ir tancrec \f this ase. however, that error was narmiess De- r ; ’ , " i? rer - . nd a reasonabDie dout ine record snows | x ’ nr > that Lillv fired one or more oI the guns taken » by\y , net “ang 7; + the tne ng and e ering prior the ry ley . a » toc? murder. Thus, the gunpowder resique test , 4 : ‘ fre +t enr iG nave pee! Ix I a easO0 a ; °? , , ry none and tne ir Was a ire al ( iff) Tr ; ) that T il a s> “ s + ‘ eG : ** ory ‘ sorry ahhali yy F ie . | t eS! ar “ UY ael resi . - ’ TF ’ : nf nis nands was a no rdai a nat wen ‘ ne ~ or vas y ’ ’ ect ex 1s 4 . 7 ‘ finer natinr iT r tne rigi agal sell minatio : in ‘ -_* 4 «61 ; 1 . a, ter " fé * 70 iva UZi Ala ( rin rT) 1 Y“st lefendants nonverbda ul i : ‘ na + is ecreting ’ ahand was r y titutionailv protected a \fere? ; : ‘ ss9 A 727 E ; monwealth, 218 Va. 462, 460, 23/7 5..2d were? 7) ore nvert na ’ may He ‘ ~ +inr tea ai aT aSsSel > 4 2 +, thie wiry | °r ieler lant - ; niry ‘ ry “é rt aT ‘ arg mer prejud tner art " rf) need ti ’ decis ’ ct ‘ la AC KS! : ’ " f re | thar ‘ ‘ cas ONY : MMMWMONWEALIH of ‘ire ¥ ’ ry | ° na , re i " ; ‘ ‘ ‘ , . Record os ermir } } her ser } ’ r ' ’ genera ’ , : " ’ fey mor : ena f yarabdie =T., ‘ ng bot +} r , , . fond j ; ; ' , ~ : : ri aa ¥ i+ +! ix n..0 3oOvV ii od ; ’ wi ~ ; ’ ’ . yl ; Lied ~ | > hak 2d 43 1YY5 \¥ ave eX re I | ' nurael (‘iy ’ ? ‘ ¢ Th » ?F : i. | . ’ ' ence mr ed ; — , en t : »» attention t +} . ' ere mw ‘ . r I : i nere, tn watn pena \ ’ re : t future langerou . ’ : ‘ mn Ut! re e\ S r le tnat ror emal! jeatt entence not ¢ eSsive ir ’ wt ’ yportionate to penalti generally ir? ’ ‘I ly on , , ther sentencing bodies in the rt, W ge. Se eh f a . " " ’ ea ’ iwara ‘ mes ee : ate , , . J, > G) 3 54, 356 S.E.2d at 15U s fre ache m7 19 1 ; »)? J 4 id va iZD Li al a , g : ‘ ‘ TT? 4 ~ +4 or? ie? 14? : - . ” _ — w Uy S 63, 100 Lf 609 (1939 ‘ rike : . ’ IX ew ansfe . : e* CONCLUSION . 4 ’ ’ . . ’ : " ef * tria wt | he I 4 ter : . ; ’ ‘ “ 199 SOUTH EASTERN REPORTER Double dd SERIES Hiomiciac s] jeopardy m na 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. 2 ly 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 —_——_— as on 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 h 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 ma 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 6 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, v. 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 ii 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 Code Code Code Code Code Code of of of of of of of Virginia, Virginia, Virginia, Virginia, Virginia, Virginia, Virginia, As As As As As As As OF VIRGINIA, AS AMENDED 1950 Amended Amended Amended Amended Amended Amended Amended 1950, 1950, 1950, 1950, 1950, 1950, 1950, iii Section Section Section Section Section Section Section 8.01-358 19 19 19 19 19. 19. -2-230 .2-251 -2-266.2 -2-264 2-231 2-264.4 24 23 22 16 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 1 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 2 4 _ ' =~ % | % Lilly aa¢ Eggleston, Virginia and Pembroke, Virginia, where they robbed two “ of 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 ries that occurred in Giles Co toni G.P. chat you're in your facilities where you understand — incidents that led up in Blecksburg¢ and Montgenery p You understan earlier today, or earlier on December the £i=th? ; you don't feel too drunk to talk to me. the thincs that I'm gonna ask about. First of=, I'm gonne read the Miranda rights that you heve to you, and M.L. Yeah. I want to make sure you feel like you understand these. G.P. When was the last ti i e Alright. e las ime you had a drink? M.L Well, ah. . . ; G.P. You have the right to remain silent. Theat means u ‘ don't have to telk to me if you don’t want too. AnytBeng G.P It's right :30. that do you tell me, I can and will use against you in 9 now, 1:30 the court of law if there is charges brought against you M.L About dark. You have the right to oe an poog A and neve - or her present with you le you are be questionec. G.P. About dark, which would heve been abo £i : And if you cannot afford to hire an attorney, one will be o'clock. So we're talking about saves poe a hel! beers. appointed to represent you mn ot ~ # ae = a ~ toch can decide at any time to exerc se rights no MLL We’ s wbeG : - ‘ oe gag Pron .~ quectiens ¢f ake ay further e'd been drinking liquor all dey, since yestercay. statements. In other words, you got a right to nave @ G.P. When yo “we* - : pa lawver here with you. If you can't afford one, the cour= you sey “we* who are you talking about “we”? appoint one, enc if you decide to waive your rights enc M.L. Me, Ben and Gary. salk to me, then you can still stop at any time you want too. You understand these rights? G.?. Who's Ben now? M.L. Uh bub. 5 M.L. That's my brother. G.P. I'm sorry, you do understand them? G.>. Ben Lilly? M.L Yeah. M.L. Yeah. G.P Alright, listen to this very carefully. Having been >. And Gery, who's Gary? G advised and fully understanding my rights do freely and voluntarily, without threats, promises, pressure, OF ML. Barker. coercing agree to talk with Gary Price, that’s me, a law enforcement officer. in other words, if you egree . 3 answer questions, i='s not because I'm mak-ag you do it, You any kin to Gary Barkez? M -*m not threatening you, you're gonne do => om your own s. mae 2-ee will. Do you understanc that? ; ‘ G.?. I'm going to ask you, i= you woulc, shese ere the righP. who's was it? G.P. Okay. What transpired at thet time? M.L. Ben's. 2 aes Well, dude wanted_to get him another car. G.P. What color wes it? se Who wanted to cet another car? M.L. Sen. M.L. Like a copper color. G.P. G.P. Okay. Did ye'll drive it around about ell day? Ben? . M.L. Y ; M.L. We drove it around for a while. oan ; G.P. ; ' aie G.P You pretty much stay in Montgomery County with that car? How cid ya'll go about getting another car? M.L. Ww ‘ M.L. Well, we tried to hang down at Floyd where the week sends ell ~ ' ads are, you new Cause the law don't go om the back ro G.P. Just be honest with me. - ’ M.L. we went across the parki cS nae : about? tJ = parking lot anc dude pulled e gun on G.?P. And that was yesterdey you re talking chis other dude and told him we was cakink bis car can hn M.x. Well, yeah. Yestercey, everyday, you know, we try 9° was going with us. stay out on the beck roacs. G.?. So who pulled the gun on the dude? G.?. Wheat become of that Mercury Couga>? “2. Sen. - ‘= = $s. I just lon . M.L. You know, I don't even know wha= happened to J G.?. So Ben puiled che gun, which cun scared me man, I wanted to get the hel) out of there. No, but did Ben say “He's dead"? Yeah. Ben did say he was dead, so Ben walked back to him you think and checked him? I don't know if he walked back bu= he must have knew something. Would he have had enough time, from the time you heard the shots, to heve walked back to him and then come back and got in the and drove off? Do what now? What I'm saying, vou said he was about ten or fifteen yercs awey, would Ben hed enouch time to shoot him, walk over to him and check to see if he was dead end then come peck and get in the car? You said chere was a litzle time perioc in there from the time vou heerd the shots Giles County Sheriff's Office Case#'s 950789 & 950790 2270 Mark Anthony Lilly Page#ié ‘0d t* until the time Ben got back into the car. And 3en knew he was dead, Ben told you he wes deed. So, apparently Ben bed checked him or for some reason thought he was Gead. Yeah, or he could'a stood there too. Did Ben sey where he shot him? Yuh uh. I didn't ask either. So ya'll stayed in the car. You were still in the back? Yeah. Whet happened from that point? What do you mean what happened after thet? Where did ya'll go after you pulled off and left the body and kept coming towards Giles County. well, we just went riding around drinking beer and 1 liquor. Okay. We got, we stopped end bought us a case of beer somewhere. Okay. Do you remember coming into the M & L or the H & ~ Mini Mart over, I can tell ya it’s in the Eggleston area, I don't know if you know where that is. It's out in the country. Rll of these places out in the country. Well, these are even more country than most, but it’s 4 Little, bitty, country store. There was an old man and an old woman in it. I think I remember something ebout it. Whet do you remember? .tou know, here agein you're being honest and the story matches, all I'm esking is just continue to be honest. What happened when ya’ il sz=oppec a= thet little country store where the old man and the old women wes running it? Giles County Sheriff's Office Case#'s 950789 & 950790 2271 Mark Anthony Lilly Page#!9 M.L. x eo easznea spare eaxezpark @ a Ts. fF ww - =. J tr’ Uh, well, we went in anc first of al-, they wanted to rob it and they figurec that, 5en figured thet he wes ia deep enough, you know, where he shot that mother fucker, you know. I guess he just thought I ain't got nothing to loose, I'il just rob this bitch (not understandable) money. Okay. Who went in the store? All of us. Did any of you carvTy any weepons with you? One of them had one, I cidn’t have none. You didn't have any wéapons with you? Hub uh. Do you know who carried the weapon in? Huh uh, I don't know that. What kind of weapon did they carry in? Well, the pistol. Okay. And what transpired when you got inside? How many people were in there other chan ya'll? : Just the old man and women. Alright, when you got inside, where did you go? I jus= walked, let's see, I think it the aisles like that. Uh huk. and that goes back to the beer. And they up here Sucking around, and I go back there and get some beer. You know, and per= of whet went on, they had robbed this mother fucker, you know. And I just shought, "Sell, a twelve pack of beer eia't gonne hurt nothing.* So I just took =hne beer, I took my twelve peck of beer. Okey. You cicn’t pay for it, you just took ++? Giles County Sheriff's Office Case#'s 950789 & 950790 2272 Mark Anthony Lilly Page#20 Mark Anthony Lilly Page#2: M.L. Right. I wes so drunk, ! don’t do thet shit, you know, G.P. Alricht when ya'l- split the money up @ liccle lacer, who if I'm sober. i had money in my pocket. /- figurec. . sulled the money out, who had the money? know of? “s = = . i I rics - ss & G.?. Okay. So, when you left the store ya'+1 hed a, who was -L They got some. driving when you left? G.P Did you end up with any of it? M.L. Gary. M.L Three ways. G.P. Gary was driving and you were up front? G.P Okay. Ya'll split it evenly three ways. You know how M.L. Yeab. much your share was? G.?. And then that would have put Ben in the beck? M.L Tt wasn't much man, about a hundred, under @ hundred collars. : M.L. Yeah. G.?P. Did ya'll fire any shots in to that store? From once you robbed the store, all three of you got back : in the vehicle, what did you do then? M.L. No. M.L When all three of us got back in the vehicle? G.P. No shots were fired there, no. .- - . G.P. . M.L. No. ycbeagse M.L. We took of:. G.P. was the man and woman hurt to your knowledge? ) G.?. Okay. Did ya'll stop anywhere along the way after that, M.L. Not to my knowledge, no. before you got to the next store? G.P Okay. When you went in there, of course, Ben alreedy | e.2. Huh uh. told “Let's go in there and this store.° So you all three went in there, one of them carried a gun, you don't | ; G.P. When did va'll divide the money up? ‘ou said ya'il whether it was Ben or whether it was Gary? | divided it three ways and it was about a huncred dollars :; ail toge=iner. M.L Right. , R M.L. Down at the sandbar. G.? Did, what did Gary bring out of it? G.?. Okay. That was, of course, that was obviously afcer you M.L Beer. left the store, you already had the money. Then you said the money came from back, so it must have come from Ben, G.P. He had beer, did he have anything else? right? M.L I don't Know. M.L. **No Statement Made** . G.? Whet did Ben bring out? G.?. Is that a yes or @ n0? M.L. tT ain't for sure men. M.L. Yeah. Giles County Sheriff's Office Case#'s 950789 & 950790 Giles County Sheriff's Office Case#'s 950789 & 950790 2273 zeae Mark Anthony Lilly Page#22 t* ‘0 TT FP t* za 8 ae eo 8 8 ££ @ 8 a @ ‘Uy te : > ~ t’* a u a ' ot w@ eH Okey. So ya'il pulled in down eround the sandber, spli= the money, anc then where did you go after that? Over to the other store. And when you say “to the other store" are you familiar with Pembroke? **No Statement Made** But you went to another convenient store type establishmert? Yeah, across from Dairy Queen. Okay. Who went in the store there? Me and Gery. And where was Ben on that one? Driving. Ben was criving? **No Statement Made** Did you carry a weapon in with you. . Huh uh. when you went ia the store? Did Gary carry a weapon in? Yeah, Gary had one. Wheat did he carry in with him? A pistol. Okay. You stopped there apparently if you went in with @ pistol anc ail you stopped there to rob that store, is chat righ=? We stoppec what was the discussion? Giles County Sheriff's Office Case#’s 950789 & 950790 2243 Mark Anthony Lilly Pace#23 M.L. G.?. We was all so crunk. Okay. Sut you remember you wen= in, Gary went in, he bed the pistol and 3en stayed in the ca>. What nappenec once you got inside? Well. . Who went to the clerk, who talked to the clerk? Gary. Okay. And do you know what Gary asked her or toid her? No, she, but it must have been ‘funny cause se Wes laughing, she wouldn't stop lauchinag. Okay. Did Gary show her the cun? Yeah. And tell her this was e robbery? Yeah. ‘as And she was laughing? **No Statement Made** Okay. What happened, transpired et that time? Some old man from outside come in and seen what A. He put the gun away- Q. He slid, when he said put it back, where did he put it? A. ue. he, he slid it back in his pocket. He didn’t have it all the way out. He just slid it back in his pockst. Q. Now, you indicated, ah, that there was some, ah, like heated words, is that correct? A. Yeah, ah, it, ah, the neighbor, the 963 2447 a Testimony of Alfred Fall / Direct neighbor that we went to go visit got a little harsh like I said. Q. He got a little harsh? A. She got a little harsh. Q. She got a little harsh. She was angry? A. Ah, no, she wasn’t angry. She’s just that way. Q. Okay. I think we probably all know a few people and that’s when Mark pulled out the revolver and pulled the hammer back? A. Correct. He didn’t pull it out all the way. He just slid it out a little bit. Q. And, and pulled the hammer back on it? A. Right . Q. And they weren’t drinking at that point in time? A. No, sir. Q. Okay. When, all right, he pulls the hammer back. What happens after that? A. Well, ah, after he slid it back in his pocket and everything they got up and left. 964 2448 ee ee Testimony of Howard Barnett / Direct A. But as he leaned on the bar, well, 7? watched, I was looking at him. Q And he looked at you right in the face? A. Yes, sir, he did. Q. And did he tell you - A. He told me, he told me to not to look at Q. He told you not to look at him? A. Yes, sir, he did. Q. And did he have anything in his hand? a and at that time I was, at that time 7 was very shook up just to tell you the truth. Q I can imagine. pid he have anything in his hand? BK Yes, sir, he did. That’s what I said, he had a pistol in his hand pointed at me. Q Does this resemble or the pistol that he had in his hand? nm Well, I’11 have to say that at that time I was probably s° scared that I thought it looked bigger, but it did look & little bit bigger, but, yes, it does 990 2474 there was something in your mind? Was there a reason why you didn’t want Michael to go? A. Well, the remark that Gary had made, ye®, sir. Q. All right. And what was thac remark specifically? A. That he could kill his best friend without regretting it. Q. And that was the reason that you didn’t want your son to go with them? A. Yes, sir. Q. All right. And this was approximately 1:30 the afternoon of December the 5th, is that correct? A. Yes, sir. Q. All right. Your Honor, that would be all the questions t have for this witness. We would offer it for the truth of her, why she did things. Not for the truth of the matter asserted, which was & different ground than we originally based it under. We would also raise it under the ability to be able to impeach for the reasons stated earlier. This is, would be her testimony 1020 sos : Testimony of Louise Barnett / Direct Q- Okay. I°2 asking you what happened? A. What happened. Q- Just start from the beginning. Let’s start off with what you saw happen and then I’‘l1l stop you if, if I have any questions. How’s that? A. Word for word, I really don’t know what Q. Well, i's not asking you what ~ A. Ab, put we know that a gun was pointed #© Q- All right. A. He was told to get om the floor. THE COURT: I think if she didn’t hear any statements made, I think she needs to confine her testimony ~ MR. TUCK: All right. THE COURT: To what she herself observed. 1061 2545 Q. Okay. A. and I pushed him kindly back in a, the gun hit me in the stomach, you know, the barrel - Q. Uh-huh. A. and I don’t know what happened. I just backed up. Q. All right. Did he say anything to you at that point in time? A. Yes, sir. Q. What did he say to you? A. He said, I’1l blow your head off. Q. Okay. And who was that that had the gun? A. The blonde headed fellow. 9. All right. Did he point the gun at you when he said that? - Yes, sir, he sure did. Q. And what did he do after that? I mean ~ A. I, I told the clerk, I said, give him the damm money, Mona. Q. And then what did you do after that? A. And the other, the other guy walked, got, 1092 2576 i | ’ Testimony of Mona Hylton / Direct key every way I could. Well, Bill come in about that time, and he said, what's wrong. Mona, and Barkley s#y%- ‘lay in the floor. Q. Where was the gun when he - A. On the counter. Q. On the counter. A. and Bill grabbed him and they went +m ® candy rack and, of course, he dropped the gun, but Barkley got it and he pointed the gun at Bill, he said, I’1l shoot your dam head off. Q. All right. Wow, how far did, ft believe you called him Barkley. Was he the short guy? A. Yes. Q- How far was the gun away from pill? A. You mean after he pointed it at his head? Q.- Yeah. Yes, ma’ an. A. It was right up *°- almost at hiz. Q. Almost at hin. Ah, within two feet of him? A. Well, about like this. Well, no, yo come a littie closer. Q. Okay. A. And it was up like this. Q. Looked like that? A. So, - Q. And then, all right, go ahead. I’m sorry. A. When I looked because I felt like he, he was going to get me and when I looked he had the gun right up and Bill and the hammer was back on it. He said to Mark Lilly, he said, get the money and run. So, he run. Q. The hammer was cocked back or that pistol? A. On the gun. Q. On the gun. A. Because I was standing right «here looking Q.. Amd then what happened after that? A. Well, after Mark grabbed the money and run Q. Did you see the automobile that they came in leave the convenience store? A. Yes, I. did. 1114 2598 things you wanted to tell the Court. A. sure. Q What is it that you want to tell the Court today? A. Well, in some of the statements that me and Mr. Barker, Gary: give the cops and some of Gary’® testimony from what I understand, it ain’t really what happened. Q. What specifically isn’t really what happened? A. Well, like the robbery, said that ~- Q Which robbery? There were three that night. A Well, all three of them. One of the, in the statements and in Gary's testimony when he testified ob that it was Ben, he said that, ah, Ben was going to *! the boy. Ben never aid because I did. f took Twenty-one ($21.00) Dollars off of hin. So you lied to the police that night? Testimony of Mark Lilly / Direct Q. A. Yeah. Q How do we know that you're not lying now? 1611 3035 ‘= Testimony of Mark Lilly / Direct Ss ; —Feainony of Mak Lilly Gros ~) A. You tell me. i's telling the truth now, You know, at the time, I was scared. The investigator exited the vehicle down at Whitethorne Landing. Did you started talking ell these life sentences, you know, I lie then? could get and I got scared man. Throw it off on somebody A. Yeah. Everything I told the cops I lied. else. Q. You are aware that they placed that 9. Ise there anything else you want to tell statement that you gave to the police before the jury, is the Court? that correct? | A. Us see. Not that I can think of. A. Yeah. MR. TUCK: Your Honor, if I might have « Q. and you aid nothing to come forward at moment. that point in time? THE COURT: Yes, sir. A. Right. Q. Did you, you told the police that you saw Q. And why is that? your brother kill Alexander Defilippis, is that correct? a. 1 hadn't been to Court yet. A. Yeah, that’s what I had said, but I. p § Q. Please answer any questions that Mr. ’ ’ can’t say that for sure. I can’t say for sure who killed cchwab might have for you oF the Court. hin, you know, either party. I can’t say for sure. THE COURT: Thank you, Mr. Tuck. Mr. Q. Why’s that? Schwab. A. Because at the time of the shooting, I we* CROSS - EXAMINATION th ide of the car thr }, Liquor on the other sce owing up a)i the qu BY MR. SCHWAB: and beer that If had been drinking throughout the day- Q. So, everything you told the police was ® Q. Now, you told the police that you never lie? 1612 1613 3036 3097 Testimony of Mark Lilly / Cross Q. so you did kill him, is that what you're saying? A. Ah, © Q. You told the police you didn’t kill hin, killed? A. I never killed hin. Q. Who killed him? A. I don’t know. ft can’t say for sure who killed hin. Q. Who had the pistol? A. At the time of the murder? Tf can’t say for sure because I don’t know. Q. pid you have the pistol before the murder? A. No. Q. \ Who had the pistol? A. I can’t say for sure, you know, because Tf Q. You don’t know? A. Right. Q. You had the pistol up till the time you 1614 3098 Testimony of Mark Lilly / Cross Q. bid anybody in your family encourage you to call Mr. Tuck? A. Huh-ubh. Q- Does it have anything do to with your being here today that there’s & custody petition concerning your child pending in the J & D Court? A. I don’t see where my kid has anything to do with it while we are here now. Q. Well, that’s ay point. Does it or doesn’t 4t? You didn’t call Mr. Tuck until after your mother filed to have custody of your child? A. That ain’t got nothing to do with it, man. Q. Why do you blame it on Gary Barker instead of your brother? cS A. Well, me and Gary we, we've been, we've | ' been in 4 whole lot of trouble together and Gary knows ® whole lot on me and if it was to do over, I wouldn’t have told y’all nothing, you know. 4 have took the Fifth. t wouldn’t told y'all nothing. ?f woul Q. soe, you don’t know that your prother didn’t kill him, do you? _IN THE SUPREME COURT OF VIRGINIA Record Nos. 972385 and 972386 , —— - BPR Shoes atte Cif ten fet en aien wns tee te y E>: — he $2 cantt- Pr Pena, V7 eran - ‘ my Ps ah — —- Sy BENJAMIN LEE LILLY, eae : - Appellant, v. re COMMONWEALTH OF VIRGINIA, path Appellee. BRIEF OF THE COMMONWEALTH xs MARK L. EARLEY Attorney General of Virginia . KATHERINE P. BALDWIN Le m Assistant Attorney General eceanene a — - ~ -——-- Office of the Attorney General 900 East Main Street Risen oie ——- - Richmond, Virginia 23219 (804) 786-4624 3418 ‘ an a BO ERATE Se 4 = Fy z c. Any error was harmless. Lilly’s confrontation j y argument should be rejected because the mal court properly exercised its discretion in allowing the hearsay into evidence and because the hearsay clearly did not violate the Confrontation Clause. However, even if an error had occurred, it would have been harmless in this case. See Lee v. Illinois, 476 U.S. 530, 547 (1985) (confrontation violation does not “foreclose the possibility that [the] error was harmless when assessed in the context of the entire case against [the defendant]”); Schindel v. Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979) (erroneously admitted hearsay harmless when the content of the out-of-court statement is clearly established by other evidence). Here. the other evidence overwhelmingly proved that Benjamin Lilly committed the capital murder. Gary Barker was an eyewitness who observed Lilly abduct, rob and murder Alex DeFilippis. (JA 2025-2173). Barker's trial testimony was far more detailed than Mark's pretrial statements, and it thoroughly corroborated Mark's statements. (JA 2254-2282. 2318-2332). It was the defendant's car that was used in the initial part of the crime spree and-the defendant's car that broke down, necessitating replacement with another vehicle, and such action most likely was undertaken by the owner of the disabled car. When he was apprehended wielding a shotgun, the defendant lied to the police officers about his identity and that of his accomplices, and that deceptive behavior most likely was engaged in by a guilty person. The defendant made incriminating statements: at the apprehension site, the defendant called to his brother to give himself up because he was “not the one who has done anything wrong;” in the police car, he asked Officer Whitsett to kill him and when the officer asked what a murderer looked like, said “me.” A forensic examination of the accomplices’ clothing found blood on the defendant's pants leg, yet no blood on Mark’s clothes and no blood on Gary’s clothes that was not his own. When assessed in the context of the entire case against the defendant, it is clear that 34 emit 3 Wie Soren fr. a. his uilt was g established by evidence independent of the hearsay statements and that the admission of th ¢ hearsay, even if erroneous, was harmless beyond a reasonable doubt. urt Properly Denied the Motion ¢ ey Statements Made to Officer Whitsett. (Assign. Error “42 still Lilly ar iti Y argues that the trial court erred in admitting into evidence the Statement he made to Offi ’ . LL: — . icer Whitsett while he was sitting in a police car after he had been apprehended. The challe illy’ nged statement was Lilly’s response “me,” made after Whitsett asked, “what does a = Ces F urderer look like? (JA 263). Lilly says that the response “me,” should not have been teal | mitted because Whitsett had not given him wamings under Miranda v. Arizona 384 U.S 436 l : . . . 36 (1966), and because Whitsett’s recollection of the response was not clear or positive Neither argument, however, demonstrates error. First, there was no Miranda error because Whitser W2s not required to give the warnings. Miranda applies only to “custodial interrogation.” Custodial interrogation takes place when an officer expressly questions a suspect in custody with questions he knows are “reasonably likely to elicit an incriminating response.” Jenkins v. Commonwealth. 244 Va at 453, 423 S.E.2d at 365 (quoting Rhode Island v. Innis. 446 U.S. 291, 301 (1980)). The Suspect. Jenkins, 244 Va. ar 435, 423 S.E.2d at 365. A SUSPect’S statements in such Situations are considered “volunteered” and outside the strictures of Miranda. See id.; Wave v. Commonwealth, 219 Va. 683, 693, 251 S.E.2d 202. 208 (Miranda does not apply to volunteered statements or to responses to general “on-the-scene questioning as to hls Surrounding a crime”) (quoting Miranda 384 USS. at 477, 478), cert. denied, 442 U.S. 924 (1979). As the rial court found, when Lilly made his statement, “me,” he was not being ™ interrogated. (JA 362), Lilly was apprehended and placed in a police car while the Officers searched for the other robbery suspects. (JA 258). Whitsett was Standing guard by the car : 35 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0291%3A03. Public record. Not legal advice.