ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, October 29, 1996 TAG: 9610290092
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: CHRISTIANSBURG
SOURCE: LISA K. GARCIA STAFF WRITER
A Montgomery County jury chose death Monday as the price Benjamin Lee Lilly should pay for murdering a Virginia Tech student in December.
Lilly's attorneys said they strongly thought the verdict would be overturned, specifically because the jury heard a taped interview of Lilly's brother talking to police only hours after the murder.
The lawyers argued that every citizen has a right to confront an accuser, and the tape's use took that right from Lilly when the younger Lilly refused to testify last week. They also continued their assertion that the prosecution's key witness - Gary Barker - is the murderer.
Ben Lilly, 28, of Riner was convicted of capital murder Friday for shooting Alexander V. DeFilippis after carjacking the McLean man from a Blacksburg convenience store Dec. 5. The 22-year-old environmental science major was found lying on a pile of debris in the Whitethorne area of Montgomery County with three bullet holes in his head and one in his right forearm.
Before the jury decided on the death penalty, it heard a full day of testimony in which the prosecution pictured Lilly as a violent repeat offender who had not "learned from life's lessons."
The defense portrayed Lilly as a man deeply troubled by a younger brother's suicide, who let alcohol rule his actions and whose family life was far from perfect.
Skip Schwab, assistant commonwealth's attorney, recited Lilly's criminal record, which started with a breaking and entering charge in 1987 and included 28 convictions ranging from drunk in public to malicious wounding. At one point, Schwab held up a photograph of Lilly's ex-girlfriend, taken after Lilly had beaten her until he bloodied her face and knocked out several teeth.
The court refused to allow evidence about a fight Lilly had in the Montgomery County Jail last week. One man was flown to a hospital afterward. The defense claimed Lilly was trying to break up the fight and another inmate confessed to most of the assault.
Witnesses for the defense portrayed Lilly's home life as filled with violence, poverty and alcoholism.
Donald Lilly, Ben Lilly's father, testified about his son's alcoholism and admitted in court that he had been "a little bit rough at times" with his children. The 53-year-old Vietnam veteran walked slowly to the stand with an oxygen tank in tow and said he had been diagnosed with post-traumatic stress syndrome.
Lilly's aunt, Phyllis Comer, said each of the six Lilly children had been in trouble with the law. One daughter left home at 16 and later emancipated herself from her parents.
One of Ben Lilly's younger brothers hanged himself Dec. 12, 1986, and, from that date forward, the older brother failed to control his actions, especially his drinking.
The prosecution relied heavily on statements by two accomplices who said Ben Lilly was the murderer.
Ben Lilly did not outwardly react to the verdict, and his attorneys said he said nothing to them afterward.
Monday, Lilly looked downward with his head cupped in one hand during most of the sentencing hearing. He broke into tears as a letter from DeFilippis' mother was read that said her Alexander "was an affectionate son who never thought he'd outgrown giving his mom bear hugs and kisses each time he'd return from campus."
Ezio DeFilippis, Alexander's father, gave a brief statement to reporters thanking Schwab, the commonwealth and the jury for their work. He refused to say more.
Christiane DeFilippis, Alexander's mother, said she could never come face to face with her son's murderers and kept in touch with the trial's progress through daily phone calls from her sister.
In a telephone interview Monday night, she said the crime was "such a waste," and that she feels sorry for the families of her son's killers. She said the death penalty was not what she had sought and in a statement read in court, the family said: "We seek justice, not vengeance."
"I wanted him to never be free," Christiane DeFilippis said. "He probably won't die because of the appeals, but I like that it's on the record that he deserves it.
"They pulled the switch on our life a long time ago," she said.
The 12-member jury, six women and six men, deliberated about an hour and 15 minutes before announcing its verdict about 6:40 p.m.
When the death penalty is chosen, the case is automatically appealed to the Virginia Supreme Court, and, if it fails there, it moves to the federal court system. Schwab estimated it would take seven years before all the appeals are heard.
The prosecution's key witness was Gary Barker, 20, of Christiansburg, who pleaded guilty in August for his part in the crime spree and agreed to testify against Ben Lilly and his younger brother, Mark Lilly. In exchange, Barker avoided life behind bars and could get out of prison when he is in his 60s.
Mark Lilly, 21, is scheduled for trial in November. Schwab said there was no plea agreement.
In addition to the death penalty, the jury gave Lilly life sentences for robbery and carjacking, 17 years for firearms violations and 10 years for abduction.
Circuit Judge Ray Grubbs will review a post-sentencing report by Ben Lilly's probation officer before he imposes the sentence. That hearing will take place in six weeks.
LENGTH: Long : 101 lines ILLUSTRATION: PHOTO: 1. ALAN KIM/Staff Benjamin Lilly listens to the evidenceby CNBin the sentencing phase of the trial. color. 2. (headshot)
DeFilippis.