Lilly v Virginia

Decision Date10 June 1999
Docket Number985881
Citation527 U.S. 116,144 L.Ed.2d 117,119 S.Ct. 1887
CourtU.S. Supreme Court

Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and VI, and an opinion with respect to Parts III, IV, and V, in which Justice Souter, Justice Ginsburg, and Justice Breyer join.

The question presented in this case is whether the accused's Sixth Amendment right "to be confronted with the witnesses against him" was violated by admitting into evidence at his trial a nontestifying accomplice's entire confession that contained some statements against the accomplice's penal interest and others that inculpated the accused.


On December 4, 1995, three men Benjamin Lee Lilly (petitioner), his brother Mark, and Mark's roommate, Gary Wayne Barker broke into a home and stole nine bottles of liquor, three loaded guns, and a safe. The next day, the men drank the stolen liquor, robbed a small country store, and shot at geese with their stolen weapons. After their car broke down, they abducted Alex DeFilippis and used his vehicle to drive to a deserted location. One of them shot and killed DeFilippis. The three men then committed two more robberies before they were apprehended by the police late in the evening of December 5.

After taking them into custody, the police questioned each of the three men separately. Petitioner did not mention the murder to the police and stated that the other two men had forced him to participate in the robberies. Petitioner's brother Mark and Barker told the police somewhat different accounts of the crimes, but both maintained that petitioner masterminded the robberies and was the one who had killed DeFilippis.

A tape recording of Mark's initial oral statement indicates that he was questioned from 1:35 a.m. until 2:12 a.m. on December 6. The police interrogated him again from 2:30 a.m. until 2:53 a.m. During both interviews, Mark continually emphasized how drunk he had been during the entire spree. When asked about his participation in the string of crimes, Mark admitted that he stole liquor during the initial burglary and that he stole a 12-pack of beer during the robbery of the liquor store. Mark also conceded that he had handled a gun earlier that day and that he was present during the more serious thefts and the homicide.

The police told Mark that he would be charged with armed robbery and that, unless he broke "family ties," petitioner "may be dragging you right into a life sentence," App. 257. Mark acknowledged that he would be sent away to the penitentiary. He claimed, however, that while he had primarily been drinking, petitioner and Barker had "got some guns or something" during the initial burglary. Id., at 250. Mark said that Barker had pulled a gun in one of the robberies. He further insisted that petitioner had instigated the carjacking and that he (Mark) "didn't have nothing to do with the shooting" of DeFilippis. Id., at 256. In a brief portion of one of his statements, Mark stated that petitioner was the one who shot DeFilippis.

The Commonwealth of Virginia charged petitioner with several offenses, including the murder of DeFilippis, and tried him separately. At trial, the Commonwealth called Mark as a witness, but he invoked his Fifth Amendment privilege against self-incrimination. The Commonwealth therefore offered to introduce into evidence the statements Mark made to the police after his arrest, arguing that they were admissible as declarations of an unavailable witness against penal interest. Petitioner objected on the ground that the statements were not actually against Mark's penal interest because they shifted responsibility for the crimes to Barker and to petitioner, and that their admission would violate the Sixth Amendment's Confrontation Clause. The trial judge overruled the objection and admitted the tape recordings and written transcripts of the statements in their entirety. The jury found petitioner guilty of robbery, abduction, carjacking, possession of a firearm by a felon, and four charges of illegal use of a firearm, for which offenses he received consecutive prison sentences of two life terms plus 27 years. The jury also convicted petitioner of capital murder and recommended a sentence of death, which the court imposed.

The Supreme Court of Virginia affirmed petitioner's convictions and sentences. As is relevant here, the court first concluded that Mark's statements were declarations of an unavailable witness against penal interest; that the statements' reliability was established by other evidence; and, therefore, that they fell within an exception to the Virginia hearsay rule. The court then turned to petitioner's Confrontation Clause challenge. It began by relying on our opinion in White v. Illinois, 502 U.S. 346 (1992), for the proposition that " '[w]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.' " 255 Va. 558, 574, 499 S. E. 2d 522, 534 (1998) (quoting White, 502 U.S., at 356). The Virginia court also remarked:

"[A]dmissiblity into evidence of the statement against penal interest of an unavailable witness is a 'firmly rooted' exception to the hearsay rule in Virginia. Thus, we hold that the trial court did not err in admitting Mark Lilly's statements into evidence." Id., at 575, 499 S. E. 2d, at 534.

"That Mark Lilly's statements were self-serving, in that they tended to shift principal responsibility to others or to offer claims of mitigating circumstances, goes to the weight the jury could assign to them and not to their admissibility." Id., at 574, 499 S. E. 2d, at 534.

Our concern that this decision represented a significant departure from our Confrontation Clause jurisprudence prompted us to grant certiorari. 525 U.S. ___ (1998).


As an initial matter, the Commonwealth asserts that we should decline to exercise jurisdiction over petitioner's claim because he did not fairly present his Confrontation Clause challenge to the Supreme Court of Virginia. We disagree. Although petitioner focused on state hearsay law in his challenge to the admission of Mark's statements, petitioner expressly argued in his opening brief to that court that the admission of the statements violated his Sixth Amendment right to confrontation. He expanded his Sixth Amendment argument in his reply brief and cited Lee v. Illinois, 476 U.S. 530 (1986), and Williamson v. United States, 512 U.S. 594 (1994), in response to the Commonwealth's contention that the admission of the statements was constitutional. These arguments, particularly the reliance on our Confrontation Clause opinion in Lee, sufficed to raise in the Supreme Court of Virginia the constitutionality of admitting Mark's statements. See Taylor v. Illinois, 484 U.S. 400, 406, n. 9 (1988). Indeed, the court addressed petitioner's Confrontation Clause claim without mentioning any waiver problems. III

In all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, "to be confronted with the witnesses against him." U.S. Const., Amdt. 6; Pointer v. Texas, 380 U.S. 400 (1965) (applying Sixth Amendment to the States). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). When the government seeks to offer a declarant's out-of-court statements against the accused, and, as in this case, the declarant is unavailable,1 courts must decide whether the Clause permits the government to deny the accused his usual right to force the declarant "to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth.' " California v. Green, 399 U.S. 149, 158 (1970) (footnote and citation omitted).

In our most recent case interpreting the Confrontation Clause, White v. Illinois, 502 U.S. 346 (1992), we rejected the suggestion that the Clause should be narrowly construed to apply only to practices comparable to "a particular abuse common in 16th- and 17th-century England: prosecuting a defendant through the presentation of ex parte affidavits, without the affiants ever being produced at trial." Id., at 352. This abuse included using out-of-court depositions and "confessions of accomplices." Green, 399 U.S., at 157. Accord White, 502 U.S., at 361, 363 (noting that this rule applies even if the confession is "found to be reliable") (Thomas, J., concurring in part and concurring in judgment). Because that restrictive reading of the Clause's term "witnesses" would have virtually eliminated the Clause's role in restricting the admission of hearsay testimony, we considered it foreclosed by our prior cases. Instead, we adhered to our general framework, summarized in Ohio v. Roberts, 448 U.S. 56 (1980), that the veracity of hearsay statements is sufficiently dependable to allow the untested admission of such statements against an accused when (1) "the evidence falls within a firmly rooted hearsay exception" or (2) it contains "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statements' reliability. Id., at 66. Before turning to the dual Roberts inquiries, however, we note that the statements taken from petitioner's brother in the early morning of December 6 were obviously obtained for the purpose of creating evidence that would be useful at a future trial. The analogy to the presentation of ex parte affidavits in the early English proceedings thus brings the Confrontation Clause into play no matter how narrowly...

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