Benjamin Lee LILLY, Petitioner v. VIRGINIA

527 U.S. 116,119 S. Ct. 1887144 L. Ed. 2d 117 (, )

Benjamin Lee LILLY, Petitioner v. VIRGINIA

No. 98-5881

Decided: June 10, 1999

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF VIRGINIA.

Ira S. Sacks argued the cause for petitioner.

Kathleen P. Baldwin argued the cause for respondent.

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and VI, in which SCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined, the opinion of the Court with respect to Part II, in which SCALIA, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts III, IV, and V, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. SCALIA, J., and THOMAS, J., filed opinions concurring in part and concurring in the judgment. REHNQUIST, C. J., filed an opinion concurring in the judgment, in which O'CONNOR and KENNEDY, JJ., joined.

OPINION: 527 U.S. 120 119 S.Ct. 1892 144 L.Ed.2d 124

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 527 U.S. 121 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 144 L.Ed2d 125 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. 119 S.Ct. 1893 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 527 U.S. 122 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, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992), for the proposition that "â

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