ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, October 24, 1996 TAG: 9610240060
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
DATELINE: CHRISTIANSBURG
SOURCE: LISA K. GARCIA STAFF WRITER
Mark Lilly refused to say in court Wednesday that his brother killed a Virginia Tech student, but an audio tape of what he told police in December did it for him.
Benjamin Lee Lilly's younger brother briefly took the stand in Montgomery County Circuit Court, where the elder Lilly is being tried for capital murder in the death of Alexander V. DeFilippis. But when Assistant Commonwealth's Attorney Skip Schwab asked if he was with his brother and another man the night DeFilippis was shot to death, Mark Lilly, 21, said, "I'd like to take the Fifth [Amendment] on that."
The Fifth Amendment to the U.S. Constitution gives a person the right to refuse to testify if what he says will incriminate him.
The Lilly brothers and Gary Barker, 20, are accused of a crime spree in which DeFilippis was abducted in a carjacking Dec. 5 at a Blacksburg convenience store parking lot and later shot to death. Mark Lilly still faces trial.
On tape Dec. 6, he told a Giles County investigator "we had nothing to do with the shooting." When asked whom he meant by "we," Mark Lilly said "me and Gary."
As the investigator probed for more details about the crimes, Mark Lilly said "it's kind of hard because he's my [expletive] brother."
Ben Lilly, 28, sat placidly - as he has throughout the trial - as he listened to his brother's taped statements.
Mark Lilly told police that he and Barker believed Ben Lilly was going to let DeFilippis go after they forced the Tech student to strip to his underwear and socks near railroad tracks in the Whitethorne area of Montgomery County.
Barker testified Tuesday that, at the time, "we all thought it was funny" that DeFilippis would have to walk to a phone in his underwear.
The men said their attitude quickly changed as they watched DeFilippis fall dead on a pile of debris.
After his brother returned to the car, Mark Lilly said, "Neither of us said a word." He went on to ask the investigator interviewing him, "How many times was that dude shot?"
Mark Lilly signed a waiver of his Fifth Amendment rights before he was interviewed by Giles County police. The law allows him to change his mind at any time.
Defense co-counsel Christopher Tuck asked Circuit Judge Ray Grubbs to exclude Mark Lilly's statements to police as evidence on the grounds that he would not be able to cross-examine him. Grubbs declined, saying the commonwealth's only burden was to prove Mark Lilly's unavailability to testify. When he took the stand and refused to testify, the state had met its burden, Grubbs said.
Barker's testimony Tuesday contradicted his friend's statement that Ben Lilly said nothing after the shooting.
"Me and Mark asked him why he did it, and he said because he'd been in the pen and he wasn't going back," Barker said. Ben Lilly knew DeFilippis had seen his face and could identify him to police, he explained.
Barker said he was seated in DeFilippis' car and watched as Ben Lilly used a .38-caliber pistol to kill DeFilippis, 22.
As part of a plea agreement, Barker agreed to testify against Ben Lilly and got 53 years for the crimes that occurred in Montgomery County. He still faces charges in two other counties.
Tuck finished his cross-examination of Barker on Wednesday morning by adding up the maximum prison time Barker could have gotten if not for the plea agreement, which included several life sentences. Barker admitted that his decision to accept the agreement was affected by an arrangement with the Giles County prosecutor to have any prison sentence handed down in that county run concurrent with the Montgomery sentence.
Barker's testimony varied little from the version Mark Lilly gave police.
Bill Whitsett, chief of the Pearisburg police, also took the stand Wednesday. He stood watch over Ben Lilly the night of the murder as other officers searched for Barker and Mark Lilly, who had fled into the woods.
Whitsett said Ben Lilly asked him to do him a "special favor" and shoot him. Whitsett said he told Lilly he couldn't and that he wasn't a murderer. At one point, Whitsett said, he asked Lilly, "What does a murderer look like anyway?"
Ben Lilly said "me," Whitsett testified.
On cross-examination Tuck pointed out that Whitsett had testified in an earlier hearing that he "thought" Ben Lilly had said "me." Whitsett agreed that was his testimony.
Schwab concluded the state's evidence Wednesday. The defense is expected to call its first witness today.
LENGTH: Medium: 87 lines ILLUSTRATION: PHOTO: (headshots) 1. Mark Lilly. color. 2. Barker.by CNB