ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, October 26, 1996 TAG: 9610280066
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LISA K. GARCIA STAFF WRITER
CHRISTIANSBURG
A jury convicted Benjamin Lee Lilly of capital murder at 7:20 p.m. Friday, the same time police believe Lilly murdered a Virginia Tech student 10 months ago.
The victim's father said the verdict closed a chapter in the ordeal that began Dec. 5, when his 22-year-old son was carjacked from a Blacksburg convenience store.
Lilly murdered Alexander V. DeFilippis about a half-hour after the carjacking by repeatedly shooting him in the head.
The prosecution's case rested largely on testimony by Gary Barker, 20, of Christiansburg, who accepted a plea agreement in August in exchange for testifying against Lilly. In taped interviews, Mark Lilly, Ben Lilly's younger brother, also said Ben Lilly was the murderer. Mark Lilly is scheduled to go to trial Nov.19.
Ezio DeFilippis, Alexander's father, choked on tears as he talked to reporters. He said the verdict was no surprise.
``We knew all along,'' he said.
Ben Lilly, 28, could be sentenced to death or life in prison for the murder.
Ezio DeFilippis said death is what he wants for Lilly.
``I think this gentleman deserves it,'' he said.
The jury deliberated about three hours before reaching its guilty verdict in Montgomery County Circuit Court after five days of testimony.
Ben Lilly stood dressed in a gray suit and stared straight ahead as the verdict was read. He barely blinked as muffled cries erupted from his fiance, family and friends. He asked that his family not speak to the press after the trial.
When the verdict was returned, Skip Schwab, assistant commonwealth's attorney, hugged members of DeFilippis' family as they quietly wiped away tears.
``It was very appropriate that the verdict came at the same time he was killed,'' Schwab said.
Max Jenkins said that he and defense co-counsel Christopher Tuck will appeal the verdict.
Jenkins and Tuck opened the trial with a request for a mistrial and closed it the same way.
The first request came after Schwab used a family photo of DeFilippis during his opening statements. The defense argued that the photo had biased the jury.
Tuck sought a mistrial again Friday because of Circuit Judge Ray Grubbs' response in front of the jury to an objection Tuck made during Schwab's closing argument.
Grubbs said ``That's ridiculous'' when Tuck said the prosecutor had pointed the murder weapon at him.
Grubbs denied the motion for a mistrial and said Schwab had pointed the gun in the natural direction - to his right.
``I do not believe in any way it was intentional,'' Grubbs said.
Jenkins said his main concern about the court's rulings was that Grubbs allowed the jury to hear statements Lilly's 21-year-old brother gave to police hours after the murder.
``I have serious questions about the admission of Mark Lilly's statements,'' Jenkins said. ``It's pretty hard to cross-examine someone who is not here.''
Jenkins was referring to Mark Lilly's refusal to testify Wednesday. He invoked his Fifth Amendment right not to incriminate himself.
Never before, Jenkins said, did he have a trial in which a judge allowed a statement like Mark Lilly's to be entered.
Jenkins argued throughout the trial that Mark Lilly's statement was inadmissable because it contained, among other things, leading questions and opinion.
Ben Lilly also was found guilty on eight other charges: carjacking, abduction, robbery, possession of a firearm after being convicted of a felony and four firearm charges. The minimum sentence for those crimes is more than 50 years in prison.
The jury will return to court Monday to begin the sentencing phase of the trial, after which it will return its decision on whether Lilly should be put to death.
The last person sentenced to death in Montgomery County was Buddy Earl Justus, who was convicted of the 1978 murder of nurse who was nine months pregnant.
Justus was executed in December 1990.
LENGTH: Medium: 86 lines ILLUSTRATION: PHOTO: Benjamin Lee Lilly\Faces sentencing Monday. color.by CNB