Opposition Brief — Lilly v. Virginia

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ORIGINAL

No. 98-5881

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

BENJAMIN LEE LILLY,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Virginia

COMMONWEALTH’S BRIEF IN OPPOSITION

RECEIVED

OCT 9 1996

OFFICE OE THE CLERK

SUPREME COURT, U.S.

MARK L. EARLEY

Attorney General of Virginia

KATHERINE P. BALDWIN

Assistant Attorney General

(Counsel of Record)

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

QUESTIONS PRESENTED

Should certiorari be granted to review arguments which were

not properly preserved because they were not presented to

the Virginia Supreme Court until Lilly filed a petition for

rehearing?

Should certiorari be granted to decide whether a hearsay

exception is “firmly rooted” in the law even though a

determination of the issue can have no effect on Lilly’s case

because Virginia law requires a “reliability” determination in

every case involving hearsay?

Should certiorari be granted to review the Virginia Supreme

Court’s fact-bound determination that hearsay evidence was

reliable and therefore admissible under Virginia’s exception

for declarations against penal interest?

Should certiorari be granted to decide whether a State may

require independent corroborating evidence of the

trustworthiness of a hearsay declarant’s statement against

penal interest?

Page

EE career satcocienjuilineiebiiinmaschespoesiseveceneimecepaecenesesostccoetorceescecesoes l

TE GI BIPILL BUF sckcrastlibtentrctercaseacenestserneseeseresnnbsonnensensenessponsanengeseoceseqocscocecesstesceceecees l

REASONS WHY THE WRIT SHOULD BE DENIED.............0.cccccccsesesesseeneeereneeensnenseneneens 15

1. LILLY’S CERTIORARI ARGUMENTS WERE NOT

FAIRLY PRESENTED TO THE VIRGINIA SUPREME

Il. THE QUESTION OF WHETHER THE EXCEPTION

FOR DECLARATIONS AGAINST PENAL INTEREST

IS “FIRMLY ROOTED” HAS NO EFFECT ON

nL TO IE ade chinaneandlenstadiemabahenctinimnsatichaseeetenecascecceeeanececooeseceees 17

Ill. LILLY’S “PER SE ERROR” ARGUMENT IS A

RETEST ATERMIENT GP THE LAW onsn.cccsecccscssssoscssesccsecscsvseccccsesscceccesesccers 18

IV. THE “INDICIA OF RELIABILITY” FOUND TO

SUPPORT THE ADMISSION OF MARK LILLY’S

STATEMENTS ARE FACTUAL MATTERS NOT

APPROPRIATE FOR CERTIORARI REVIEW..............ccccseseeeeseeesenenenees 21

¥. THE “SPLIT” IN THE CIRCUIT COURTS OF

APPEALS OVER THE USE OF CORROBORATING

EVIDENCE INVOLVES NO CONSTITUTIONAL

ISSUE RELEVANT TO LILLY’S CASE. ..........ccccccsesssseeeeseeeesesenennenenenen 26

VI. CERTIORARI

SHOULD NOT BE GRANTED

BECAUSE EVEN IF ERROR OCCURRED IT

WPA PEA Boi vas ccesscssscstorvcsccassssctesescssossesoveqnsesoccecosesocoocsqeosscocassoocsesoeses 29

CONCLUSION........:::000ceseeeees

Cases

Page

Boney v. Commonwealth,

SO Ve, AG Gre ee ae 7 CIDUDD csrnikcsivindalsscensilistininibendnediads de Sthals iene 12

Bruton v. United States,

FO Cis Re ee ctictbicicatcsieslcsicecidimsintcpncealtie tase ee oe ad 14, 15, 19, 20

California v. G

ta TEE ie RGR eea Ser bt AER Set a A 21

has Mississippi

FE ye RR ERE Ae CRATE AOR RT ee NE TE fe Fei Tac BS 11

Chandler v. Commonwealth,

249 Va. 270, 455 S.E.2d 219,

cet Beale GUO TTS, BOO CoO ha iiecnernsiscctvsdeninntesdespsnastelbsiatestaiilatobiasbinna 11, 12, 13, 15, 17

Douglas v. Alabama,

ETC IN edd se Aa IS DS MRD eee VAS TT 19, 25

Duncan v. Henry,

Ps MUIR icicle hei Biles ti hc ee a eee ae 16

Dutton v. Evans,

he RSS AEM A LAD RMON acne CU CCI TS Sage e 13, 19, 20

Earnest v. Dorsey,

87 F.3d 1123 (10th Cir. 1996).......... eee a oe veseee 18, 20

Ellison v. Commonwealth,

yk IE NSE ic lnt oem owe coe 12, 13,47, 22

Hines v. Commonwealth,

Le FE BEE is Oe i cciciltiecssattbccdsdbicsaestkcsibbacsthiigiens ‘en ccniiciias Beis 13, 17, 18

Idaho v. Wright,

Fgh fy I DAREN Ke de ER ES! 14, 24, 26, 27, 28

llinois v. G

EE TE ED TID iiscoctsuoibanienitbbecestheiiaapilicetescs co Fes 16

Jennings v. Maynard,

946 F.2d 1502 (10th Cir. 1991).......cccccssecsesssecsessessneesecsuessees aa! 18

Le ee (1986) See tinepeestigsiliiesanisagecetenindatsinnensitenmnanstpasnecenenassneeseaqneseuns 11, 15, 18, 25, 29

SE eas es 522 (1998) SE Se SE 1, 14,17

EE 693 ER 17, 28

SER a att (1950) rs 12,13

mB LTR ES DSS 16

ne RET e0) Es ES SEE SE 17, 18, 23

Se OS SEL a Se a 20

CT 065) EEN CL Ea a eee a 19, 25

RES. E24 CES ES 14

RE SE SCS ee 14

Boat Mo 974) Ce ssneesneesnbnetsionmeruions 20

United States v. Keltner.

pk fh GEER ces SR Mca ss oe 18, 20 OS a I Oe 2 23. 27. 28

United States v. Klotz, | EE EE 23

503 F.2d 1056 (8th Cir. 1974)........ 16

United § Marti

tk ft REIS ESOS PS TR ESRD, oo 16

United States v. Seeley,

892 F.2d 1 (ist Cir. 1989) 18

69 F.3d 1249 (4th Cir. 1995) .......ccccccccccccecscssecscersesseesneens 23

United $ Smit!

792 F.2d 441 (4th Cir. 1986). 20

United States v. Taggart,

944 F.2d 837 (1 Ith Cir. 1991) 18, 20

United States v. West,

574 F.2d 1131 (4th Cir. 1978) 24 —

United States v. Workman,

860 F.2d 140 (4th Cir. 1988) 20, 21

United States v. York,

933 F.2d 1343 (7th Cir. 1991) 18

White v. Ilinoi

502 U.S. 346 (1992) 14

Willi United $

512 U.S. 594 (1994) passim

Yee v. Escondido,

503 U.S. 519 (1992)....... 16

Other Authority

28 U.S.C. § 2254 16

§ 19.2-264.4, Code of Virginia. 1

U.S. Sup. Ct. Rule 10 22

U.S. Sup. Ct. Rule 14(1)(g)(i). 16

iv Vv

STATEMENT OF THE CASE

Benjamin Lilly was tried by a jury in the Circuit Court of Montgomery County. Virginia.

and found guilty on October 25, 1996, of the capital murder of Alexander DeFilippis as well as of

robbery, abduction, carjacking, possession of a firearm by a felon, and four charges of the illegal

use of a firearm.

In a separate sentencing proceeding on October 28, 1996, the jury sentenced Lilly to death

for the capital murder on the basis of both of Virginia’s aggravating factors: "future

dangerousness” and “vileness." See Va. Code § 19.2-264.4. The jury also sentenced him to life

imprisonment for robbery, life imprisonment for carjacking, ten years for abduction, five years for

possession of a firearm by a felon, and four terms of three years each for the four convictions of the

illegal use of a firearm. After considering a probation report and other evidence presented during

the post-sentencing hearing held on February 11, 1997, the trial court imposed the sentences which

had been fixed by the jury: one death penalty, two life sentences plus 27 years in prison.

On April 17, 1998, the Virginia Supreme Court unanimously affirmed the convictions and

sentences. Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522 (1998). On June 5, 1998, the

Virginia Supreme Court denied Lilly’s petition for rehearing.

STATEMENT OF FACTS

Sometime on December 4, 1995, twenty-seven-year-old Benjamin Lilly got together with

his twenty-year-old brother, Mark Lilly, and Mark’s nineteen-year-old roommate, Gary Barker, at

the defendant’s home in Riner, Virginia, to drink and “smoke a little...pot.” (JA 2030-2031).'

Later that night, the three men decided to go to Floyd County to Danny Saunders’ home. (JA

2031). The defendant drove them in his Mercury Cougar. (JA 2030). Mark and Gary knew

Saunders, had been to his home before and knew that he kept liquor and guns there. (JA 2032).

' References to the Joint ix filed below are denoted as“JA___.” Copies of those

referenced herein are inc in the Respondent’s Appendix A filed with this brief. wis

When they arrived at Saunders’ home and found that Saunders was not there. they “decided

just to go on in and help ourselves.” They “[bJusted out the front glass in the door.” went inside

and took 9 bottles of liquor and 3 guns. (JA 2033). The guns were a .35-caliber rifle, a 16-gauge

shotgun and a .38 caliber pistol. (JA 2032). Each gun was loaded. They also took a safe. (JA

2034).

They loaded everything into the defendant’s car, went to the defendant’s sister's home and

“busted” open the safe. Inside they found old coins, a money clip, stamps and knives. They split

up the loot, began drinking the liquor and then decided to drive to Warren Nolen’s home in Radford

to see if they could “trade the guns for some dope.” Nolen was the defendant's friend. (JA 2035-

2037). Around 7:30 p.m., they arrived at Nolen’s home in Radford and displayed their loot to

Nolen and his girlfriend, Patricia Quesenberry. (JA 1599-1601, 1586-1588). Patricia knew that

Nolen could get into trouble if he was around guns because he was a convicted felon (JA 1589,

1601), so she and Nolen told the defendant and his companions to leave. (JA 1590). The three left

after determining that they would be unable to sell or trade the loot because Nolen did not have

“enough dope.” (JA 2037).

The three men then drove to the trailer in Blacksburg where Mark and Gary rented rooms

from “A.J.” Fall, and spent the remainder of the night there. (JA 2038). The defendant, Mark and

Gary left A.J.’s together on December 5, 1995, at about noon. (JA 2440). They drove the

backroads around Shawsville and Elliston, drinking the stolen liquor. They stopped at a small

country store, pumped gas for the car and left without paying. (JA 2040). They stopped in a

wooded area of Shawsville where Gary fired the rifle and both Mark and the defendant took turns

firing the pistol. (JA 2041). They then drove to Alleghany, stopped at a church and Gary and Mark

shot at some geese with the rifle and shotgun. They killed one goose and placed it in the trunk of

the car. (JA 2043).

They then drove back to the Blacksburg trailer park where they tried, unsuccessfully, to sell

or trade the guns for “dope.” (JA 2044-2046). At about 6:00 p.m., the three drove to a bar in

Blacksburg called “Cowboys.” They entered the bar where Mark recognized Ron Lucas from his

construction job. (JA 1613). Mark asked Ron to go outside, showed Ron the pistol and offered it

for sale. Ron asked if it was “hot,” meaning stolen, Mark told him it was, and Ron handed it back

to Mark. (JA 1614-1615). The defendant and Gary then came outside, Ron went back in the bar

and the defendant, Mark and Gary drove away. (JA 1615, 1619).

They drove along Prices Fork Road heading into Blacksburg with the intention of returning

to the trailer park to find some “dope.” (JA 2049). As they were driving, however, the car’s engine

quit at the top of a hill and they were forced to coast the car to a position on the wrong side of the

road and across from a convenience store. (JA 2050-2051). They got out of the car, removed the

license plates, liquor and guns, with the intention of “stashing” them in the woods until they could

“steal” a car to “get out of there.” (JA 2051). Gary had the rifle, Mark had the shotgun and the

defendant had the pistol. (JA 2052).

In another part of Blacksburg — College Park — two Virginia Tech students were preparing

for their upcoming final exams. Tom Staeger and Alexander DeFilippis had been roommates and

friends for four years. Alexander was twenty-two years old and was majoring in environmental

science. (JA 1503-1504). He planned to spend the holidays with his family in this country and in

Italy. (JA 1504).

That evening — December 5, 1995 — Tom and Alex left their apartment in College Park in

Alex’s car at about 7:00 and drove to a friend’s to borrow some class notes. (JA 1503-1504). Alex

drove his Plymouth K-car. (JA 1508-1509). Alex wore glasses and a watch and carried a wallet

with a few dollars in it. (JA 1503-1504). They had planned to copy the notes at a convenience

store’s copier machine and then go to the school’s library to study. (JA 1503). Alex drove them to

a convenience store called the “Hethwood Express.” (JA 1505).

On their way to the store, Alex hit a curb with his right front tire. (JA 1509). When they

arrived at the store, Alex got out to look at his tire while Tom went inside to copy the notes. (JA

1510). That was the last time Tom saw Alex because, when he came out of the store, neither Alex

nor his car were there. Tom cailed their apartment to see if Alex had returned, found out that he

had not, and then noticed what looked like an abandoned car across the street. (JA 1506). Tom

called “911” and the Blacksburg Police Department responded at about 7:20 p.m. (JA 1507).

When the defendant and his companions abandoned their car across from the convenience

store, the defendant told the others to walk into the woods and “he would get us a car.” (JA 2052).

The defendant walked over to Alex, pointed the pistol at him and told him to give him his money.

(JA 2054). Alex handed over his wallet. (JA 2055). The defendant called to Mark and Gary and

they all got in Alex’s car. (JA 2055-2056). The defendant got in the driver's seat, Gary got in the

passenger’s seat and Mark got in the back seat. The defendant ordered Alex to sit in the back with

Mark. (JA 2054).

The defendant drove off towards Whitethorne, and during the ride Alex told his abductors

that he would have given them a ride if they had asked, implored them to take him back to the store

to pick up his friend and promised he would take them wherever they needed to go. (JA 2056).

The defendant drove across a bridge and onto a deserted stretch of property owned by the Norfolk

and Southern Railway Company. (JA 1721, 1764). The defendant stopped the car and Mark and

Gary told Alex to close his eyes when they opened the car door to get out so that Alex could not see

their faces. Mark had the pistol in his waistband at that time. (JA 2057).

After they all got out of the car, Mark told Alex to start walking and then the defendant

ordered Alex to take his clothes off. (JA 2061). The night was cold and windy and it started

snowing later. (JA 1734). Alex stripped down to his underwear briefs and socks. (JA 2061). Gary

and Mark thought they were going to leave Alex there, forcing him to walk to a phone. (JA 2062-

2063). Gary got back into the car in the driver's seat and Mark got in on the passenger’s side. (JA

2063). The defendant got into the back seat and demanded that Mark give him the pistol. (JA

2064).

The defendant ran after Alex, who had walked about fifty yards, turned him around and shot

him four times with the pistol. (JA 2063-2064). Three of the shots were to Alex’s head: one bullet

went straight through the right side of his upper lip; one bullet went into his neck under his left

earlobe and out through the back of his neck; one bullet went into his head above the right ear.

through his brain and lodged in the left temporal bone. A fourth bullet went straight through his

right forearm. (JA 1973-1974). All four shots were fired from a distance of more than two feet.

(JA 1974). Alex died shortly after he was shot in his brain. (JA 1976).

With the first shots, Alex threw his arm up in defense and tried to stagger away. (JA 2064).

When the fatal shot was fired, Alex fell backwards onto some discarded steel containers. (JA

1722). Alex’s eyeglasses were found later at a distance of close to fifty feet away from where he

finally fell. (JA 1825). A zigzagging blood trail showed where Alex had staggered before he fell.

(JA 1735).

After the shooting, the defendant got into the car and told Gary and Mark that “that boy saw

his face” and “I’ve been in the penitentiary and | ain’t going back.” (JA 2065). With Gary driving,

the three left the area and drove to a store where the defendant bought beer with the money they had

taken from Alex. (JA 2066). They then drove to the river and threw away items they believed

contained their fingerprints: Alex's clothing and backpack and the plastic cover over the car’s

speedometer. (JA 2067).

They discussed where to go to hide out and the defendant suggested that they stay with

friends of his in West Virginia. (JA 2070-2071). To obtain money for the getaway, they drove to

the H&L Market in Eggleston in Giles County to rob it. When they arrived, they argued over who

would carry the gun inside. (JA 2069). The defendant said that he had done “what he had to do

already,” so Gary carried the pistol inside. (JA 2071). The defendant went in with an eight-inch

knife. (JA 2553). They entered the store, held the owners at gun and knife point and robbed them

of $425.00 in cash, as well as food stamps, a radio, beer, tobacco, gloves and sunglasses. (JA 2479-

2490, 2547-2556). After the robbery, they drove to a railroad trestle where they counted the

money, divided it up and decided it was not enough. (JA 2075).

With Gary driving, they then went to the M&W Market in Pembroke. Gary and Mark went

into the store and Gary held the pistol up to the clerk and demanded her money. (JA 2575). The

defendant remained in the car. (JA 2076, 2573). The owner, Bill Williams, came into the store and

knocked the gun out of Gary’s hand, but Gary retrieved it and continued to demand money. (JA

2576-2577). The clerk handed over a money bag filled with change and the robbers left the store.

Williams told the clerk to call the police, ran to his car and pursued the three robbers long enough

to get their license plate number. (JA 2580). The defendant was driving the car, Mark was in the

passenger seat and Gary was in the back seat. (JA 2079). When they saw Williams in pursuit,

Gary pointed the rifle out of the window and fired it. (JA 2079-2080). The shot did not result in

injury to any person or property. (JA 2586).

Officer Price of the Giles County Sheriff's Department and Officer Tilley of the Pearisburg

Police Department each had responded to the scene of the Eggleston robbery and were on their way

to the reported second robbery in Pembroke when they came upon the robbers’ car headed towards

them. (JA 1648, 1703). The car had stopped due to engine trouble and the defendant, Mark and

Gary were attempting to remove the guns, radio, beer and other evidence from the car. (JA 2080-

2081). Gary ran a few yards down an embankment and hid with the rifle. (JA 2081). Mark ran

away through the woods.

The defendant was apprehended as he got out of the car, armed with the shotgun. (JA 1704-

1705). Tilley and Price disarmed the defendant and a search disclosed the knife in his pants pocket.

(JA 1649-1650). Upon questioning, the defendant falsely told them that there were three others

with assault weapons, that one of them was named Mike Rader and that he (the defendant) was an

undercover officer with the Montgomery County Sheriff's Office who had been picked up by the

others while he was hitchhiking. (JA 1650-1651).

Several officers arrived at the scene and began to search for the other suspects. The officers

heard Gary crying down in a ditch abo: t fifty feet from the car. (JA 1875). Gary was sitting down

with the barrel of the rifle up against his head. (JA 1858). The officers talked Gary into

surrendering. The defendant asked the officers if he could use their loudspeaker to talk to his

brother and he was allowed to do so. (JA 2186). The defendant called Mark by name, asked him to

“come out” and said, “You're not the one that’s really in trouble here. You're not the one that’s

really done anything wrong.” (JA 2!87).

Chief Gautier of the Pembroke Police Departnient received a call that a suspect had been

seen breaking into a house nearby and walking towards Blacksburg on Route 460. (JA 1885). The

officers found Mark a short time later walking along Route 460. Upon apprehension, he falsely

identified himself as Mark Rader. (JA 1886).

The defendant was placed in a police car while the search for the others proceeded. Chief

Whitsett of the Pearisburg Police Department was standing guard alongside the car in which the

defendant sat. (JA 2194). At that time, the only crimes the police knew about were the two

robberies in Eggleston and Pembroke. (JA 2198). The window was down a few inches and the

defendant called him over and asked if Whitsett “would do him a special favor.” The defendant

asked him if he would put the barrel of the officer’s shotgun in the defendant’s mouth and pull the

trigger. (JA 2196). Whitsett told him he could not oblige and asked the defendant “if I [Whitsett]

looked like a murderer?” (Id.). Then the defendant said something to prompt Whitsett to ask,

“What does a murderer look like anyway?” to which the defendant responded, “me.” (JA 2197).

The defendant then stated that “he was going to hell to meet his [other] brother” who had

committed suicide eight years before. (Id.).

The defendant was taken to the Giles County Sheriff's Office and was interviewed by

Officer Price. The defendant said he was with his younger brother Mark, Gary Barker and one

Mike Rader. and that the others had committed the robberies in Eggleston and Pembroke. (JA

1662-1676). He stated that he was forced at gunpoint to participate in the robberies and he made no

mention of the larceny of the guns from Danny Saunders’ house or the murder and robbery of Alex

DeFilippis. (JA 1666, 1674).

After his interview, Price asked the defendant if he would submit to a Gun Shot Residue

test. (JA 1678-1679). The defendant declined the request and began to rub his hands together and

on his pants legs. (JA 1679, 1926-1927).

Price then interviewed Gary Barker about the robberies. During the interview Price learned

from a police dispatcher that the car the trio had been driving had been reported stolen and its

owner abducted. (JA 1680). Price asked Barker about the car and Barker became “very emotional”

and said that “a bad thing had happened.” (JA 1681). Both Mark and Gary told the police what

had happened, including the fact that the defendant had shot and killed Alex. Gary drew a map

directing the officers to the location of Alex’s body and later went with Officer Fleet of the

Montgomery County Sheriff's Office to the area of the New River where they had discarded Alex's

clothing. (JA 1771).

The officers also recovered the murder weapon about seventy-five feet away from Alex’s

car in a ditch. (JA 1907). The day after the murder, a citizen found Alex’s wallet about a quarter of

a mile from Alex’s car in the direction of Pembroke. (JA 1888).

When the defendant was arrested, he had on his person several coins which had been stolen

from Saunders’ house. (JA 1920). Alex’s watch was recovered from the back of Alex’s car. (JA

1780). The bullet recovered from Alex's brain was determined to have the same class

characteristics as bullets fired from the .38-caliber revolver stolen from Saunders’ house. (JA

3523).

A forensic expert determined that there was blood on the bottom right leg of the defendant's

blue jeans that were worn on December 5, but the amount of blood did not permit a DNA test to be

performed. (JA 2018-2019). Blood found on Gary Barker's underwear was determined by DNA

testing to be his own blood. (JA 2014). No blood was found on Mark Lilly’s clothing. (JA 2007).

At trial, Gary Barker testified extensively against the defendant. (JA 2026 et seq.). Mark

Lilly was called to testify but refused to do so under the Fifth Amendment. (JA 2243-2244). The

trial court found Mark Lilly to be unavailable for purposes of the hearsay exception for declarations

against penal interest and permitted the Commonwealth to introduce into evidence Mark Lilly's

tape-recorded pretrial confessions made to the police. (JA 2253-2282). The trial court made the

following findings:

Gentlemen, in response to the defendant's motion and considering

the arguments herein, as well as the case law submitted by both

parties, the Court finds as follows:

The Commonwealth has the burden to prove the unavailability of

Mark Lilly as a witness. Should the Commonwealth call Mark Lilly,

if Mark Lilly is sworn and if Mark Lilly takes a seat in the witness

box and thereafter refuses to answer any questions asserting his Fifth

Amendment right against self-incrimination, then in those events,

the Commonwealth has met its burden in showing the unavailability

of Mark Lilly as a witness. If on the other hand the Commonwealth

does not call Mark Lilly as a witness, then her burden would not be

met and these statements will not be admitted pursuant to the

hearsay rule. It’s well-settled in this Commonwealth that a

declaration against penal interest is a recognizable exception to the

hearsay rule. However, such a declaration is admissible only upon

showing that the declaration is in fact reliable. And in considering

whether or not such statements made by Mark Lilly to the officers is

reliable and trustworthy, the Court looks at the evidence and exhibits

before it and the facts and circumstances of this particular case. In

addition, the Court further looks to examine whether there is any

other substantial link to connect Mark Lilly with the crime other than

the statements that are at issue here. In so doing, the Court finds that

Mark Lilly’s statements weren't [sic] against his penal interest and

that they are reliable and trustworthy. Further, the Court finds that

these statements do not violate the confrontation clause when they

are admitted as hearsay under the quoted exception, which is firmly

rooted. The Court will, therefore, following the precedent

established within this Commonwealth, admit these statements in

whole.

* . .

All right, gentlemen, by Mr. Mark Lilly’s assertion of his Fifth

Amendment Rights, after having been sworn and after having taken

the witness stand and assuming the protection of those rights, then

the Court does find that the Commonwealth has met its burden in

determining the unavailability of his testimony, so, therefore, in

conjunction with the Court’s prior ruling that finding is made.

(JA 2226-2227, 2244-2245). ‘

The defendant did not testify in his own defense, but rather put on witnesses to say that

Gary Barker had a reputation for untruthfulness (JA 2417, 2627), that Gary had made statements to

the effect that he would kill his best friend and anyone who tried to arrest him (JA 2525, 2529). and

that the defendant was not seen in actual possession of the stolen guns at all times. (JA 2384.

2435). The jury returned guilty verdicts on all nine charges. (JA 2784-2785).

During the separate sentencing hearing, the Commonwealth presented both record and

testimonial evidence of the defendant’s extensive criminal history, including over thirty convictions

for crimes ranging from public drunkenness to assaults, breaking and entering, larceny and

malicious wounding. (JA 2818-2868). The defendant put on a variety of mitigation evidence,

including a mental health expert and family members who described his childhood and abusive

father. Dr. Nelson, a forensic psychologist, admitted that he could not say that the defendant never

would commit another violent act. (JA 2921-2922). The jury found Lilly a “future danger” and his

crime “vile” in that it involved torture, depravity of mind and aggravated battery, and sentenced

him to death. (JA 3017).

During the post-sentencing hearing in which the probation officer's report was considered,

the defendant presented the testimony of, among others, Mark Lilly. Mark testified that he had lied

to his attorneys and to the police and that it was he, rather than his brother, who had robbed Alex

DeFilippis. (JA 3095-3101). Mark denied shooting Alex, however (JA 3098), stated that he did

not know who shot Alex and that he could not say that his brother had not shot him. (JA 3102). At

the conclusion of the hearing, the trial court sentenced Lilly in accordance with the jury's verdicts.

On appeal, Lilly made two arguments with respect to the admission of Mark’s statements.

He first argued that, as a matter of state law, the hearsay exception for declarations against penal

interest did not, and should not, apply to declarations made by any witness which the

Commonwealth sought to introduce against the defendant. (Resp. App. B-7 to B-11). Lilly's

primary contention was that the Virginia Supreme Court had erred when it allowed such hearsay in

Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219 (1995). With the exception of a

reference to “the confrontation clause, the fifth, sixth, and fourteenth Amendments” in the heading

of his argument, and one reference to Chambers v. Mississippi, 410 U.S. 284 (1973), in the

argument, Lilly’s first argument was devoid of any reference to federal law.

Lilly’s second argument below was that, again under Virginia case law, Mark’s pretrial

statements were not truly against his penal interest. (Resp. App. B-11 to B-17). Lilly recited the

federal constitutional amendments in the heading to his argument and contended at the end of his

argument in conclusory fashion that the Constitution had been violated because he had not been

able to confront Mark Lilly at trial. (Resp. App. B-11, B-16). Lilly’s argument, however, was

based upon state law governing the issue as expounded in two decisions from the Virginia Supreme

Court on the state evidentiary rule. (Resp. App. B-11, B-12). Lilly did not rely on a single federal

case. Indeed, nowhere in his opening brief did Lilly address the trial court’s finding that the

hearsay exception was firmly rooted in Virginia law or the fact that its finding that the evidence was

reliable relied in part on corroborating evidence.

The Commonwealth’s response to these arguments was three-fold: (1) Chandler had been

decided correctly and there was no per se constitutional bar against such evidence; (2) the evidence

was admissible because it came in under a firmly rooted exception to the hearsay rule and because

it was reliable considering all the evidence; and (3) any error was harmless. (Resp. App. C-1 to C-

9).

Lilly’s reply brief filed below recited two cases from this Court for the general principle that

accomplice’s confessions are presumptively unreliable — Lee v. Illinois, 476 U.S. 530 (1986) and

Williamson vy. United States, 512 U.S. 594 (1994) — and then argued that the Commonwealth’s

harmless error argument had no merit. (Resp. App. D-1 to D-4). Nowhere in the reply brief did

Lilly take issue with the Commonwealth's argument that the hearsay exception was firmly rooted

or that the corroborating evidence demonstrated the reliability of the hearsay evidence.

The Virginia Supreme Court made the following findings in its decision affirming the tnal

Hie

objected on the ground that these statements did not fall within this

hearsay exception because they were self-serving and tended to

exculpate Mark Lilly by shifting responsibility to Lilly and Barker

for the majority of the criminal acts the three men committed.

In his statements, Mark Lilly contended that he stole only liquor

i ‘wmier yw Tag Lp Speen me s friend, but

Gut Lilly nd "got some guns or something." He further

directly implicated Lilly as the instigator of the carjacking, saying

Ee es ta en Ge te a oa

Li i impli illy as the triggerman in the murder

Sey ae aa Raker “ash boo acting to do with te

shooting [of DeFilippis).”

i“

if the declarant invokes the Fifth Amendment priv

16 Va. App. 638, 643,

432 S.E.2d 7, 10 (1993); see also Newberry v. Commonwealth, 191

Va. 445, 462, 61 S.E.2d 318, 326 (1950).

To be considered as being against the declarant's penal interest, it is

not that the statement be sufficient on its own to charge

and convict the declarant of the crimes detailed therein. Chandler v.

249 Va. 270, 278-79, 455 S.E.2d 219, 224-25, cert.

denied, 516 U.S. 889 (1995). Rather, the statement's admissibility is

based upon the subjective belief of the declarant that he is making

admissions against his penal interest and upon other evidence

tending to show that the statement is reliable. 1d.

Lilly concedes that statements of a declarant unavailable at trial are

admissible if they qualify under the exception to the rule for

declarations against penal interest. He asserts, however, that prior to

is exception was used only to permit the introduction of

exculpatory evidence proffered by the defendant. In Lilly's view,

Chandler improperly enlarged the exception to permit the

fam

uni

Hit

ili

indicia of reliability is placed before a jury even

U.S. 74, 89 (1970).

[Where proffered hearsay has sufficient guarantees of reliability to

come within a firmly rooted exception to the hearsay rule, the

Confrontation Clause is satisfied.

White v. Illinois, 502 U.S. 346, 356-57 (1992) (citations omitted).

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.”

See 24 Va. on 345, 353, 482 S.E.2d

101, 105 (1997), Rai Va. App. 546, 552, 478

S.E.2d 328, 331 (1996).

Lilly, 225 Va. at 572-575, 499 S.E.2d at 533-534.

After the Virginia Supreme Court issued its decision, Lilly petitioned for rehearing of the

hearsay claim on several new grounds. Lilly argued for the first time that this Court’s “joint

trial/hearsay” cases and its federal rules cases applied to the hearsay issue in his single-defendant

trial. (Resp. App. E-1 to E-2).’ Lilly also argued for the first time that Virginia's hearsay exception

for declarations against penal interest was not “firmly rooted” in the law. (Resp. App. E-3).

Finally, Lilly argued — again for the first time — that under Idaho v. Wright, 497 U.S. 805 (1990). a

determination of the reliability of the hearsay statements for purposes of admission under Virginia's

hearsay exception could not, as a matter of law, take into consideration evidence outside of Mark's

statements that corroborated and validated the truth of the statements Mark had made. (Resp. App.

2 Lilly retied on Bruton v. United States, 391 U.S. 123 (1968) and Williamson v. United States,

$12 US. 594 (1994).

E-6). The Virginia Supreme Court denied the petition for rehearing in an unpublished. summary

order. (Resp. App. F).

REASONS WHY THE WRIT SHOULD BE DENIED

1. LILLY’S CERTIORARI ARGUMENTS WERE NOT

FAIRLY PRESENTED TO THE VIRGINIA SUPREME

In the Supreme Court of Virginia, Lilly briefed and argued thirty-four assignments of error.

(Resp. App. B-1 to B-6). As shown above, Lilly made only two arguments pertaining to the

evidentiary ruling allowing Mark Lilly’s pretrial statements. Even a cursory review of Lilly's

arguments made below demonstrates that they are not the same arguments he now makes in his

certiorari petition. In the court below, Lilly argued primarily that Virginia’s hearsay exception for

declarations against penal interest did not apply at all to statements admitted against a defendant.

Lilly concluded without analysis that such an exception would violate the Confrontation Clause.

(Resp. App. B-11). Lilly makes no such argument in his certiorari petition.

Lilly also argued below that, under Virginia's Chandler decision describing the hearsay

exception, Mark Lilly’s particular statements did not qualify because they allegedly were not

“against his penal interest.” (Resp. App. B-12). Lilly again concluded, without analysis, that the

Confrontation Clause had been violated. (Resp. App. B-16). Lilly makes no such state law

argument in his certiorari petition.

Lilly’s 31-paged certiorari petition is devoted solely to the evidentiary hearsay claim. In it,

Lilly essentially makes three arguments: (1) Under Lee v. Illinois, 476 U.S. 544 (1986), Bruton v.

United States, 391 U.S. 123 (1968) and Williamson v. United States, 512 U.S. 594 (1994), Mark

Lilly’s pretrial statements were per se inadmissible and “no court” ever has upheld the admission of

such statements; (2) the hearsay exception is not “firmly rooted,” and the federal courts of appeals

allegedly are “split” over this issue; and (3) Mark Lilly’s statements allegedly are unreliable if

“collateral” evidence corroborating their validity is mot considered. and the federal courts of appeals

and state courts allegedly are “split” over the issue of whether “collateral” evidence can be

considered.

These arguments simply were not presented to the Virginia Supreme Court. As shown in

Lilly’s opening and reply briefs filed below, these three arguments were not made. To the extent

they were raised in Lilly's petition for rehearing, those arguments were not considered by the

Virginia Supreme Court because they were not made in the first place. A petition for rehearing. by

definition, presupposes that the matter has been “heard” in the first instance and the Virginia

Supreme Court, like the federal courts, will not consider new matters on rehearing. See Nicholas v.

Nicholas, 100 Va. 660, 665, 42 S.E. 866 (1902); Malady v. United States, 120 F.3d 119, 120 (8th

Cir. 1997); United States v. Martinez 96 F.3d 473, 475 (11th Cir. 1996); United States v. Klotz, 503

F.2d 1056 (8th Cir. 1974); Weigand v. Wingo, 380 F.2d 1022, 1023 (6th Cir. 1967); Can v. F.T.C.,

302 F.2d 688, 692 (1st Cir. 1962).

This Court does not sit to review issues that were not “properly” and “timely” raised in the

lower court. Sup. Ct. R. 14(1)(g)(i) (petitioner must “show that the federal question was timely and

properly raised”); Yee v. Escondido, 503 U.S. 519, 532 (1992); Illinois v. Gates, 462 U.S. 213,

218-220 (1983); cf. Duncan v. Henry, 513 U.S. 364, 365 (1995) (mere similarity of claims

insufficient to satisfy exhaustion requirement of 28 U.S.C. § 2254). A fair review of Lilly's briefs

filed below discloses that he did not formulate his current arguments until after the Virginia

Supreme Court had decided his case on different grounds. This Court may not grant certiorari to

determine issues in the first instance. The judgment of the Virginia Supreme Court that Lilly asks

this Court to review simply did not rest on the issues he presents in his certiorari petition.

Il. THE QUESTION OF WHETHER THE EXCEPTION

FOR DECLARATIONS AGAINST PENAL INTEREST

IS “FIRMLY ROOTED” HAS NO EFFECT ON

LILLY’S CASE.

(Pet. Arg. B)

Even if Lilly had properly preserved his argument, it would present no “compelling” reason

for a grant of certiorari. See Sup. Ct. R. 10. While it is true that, as a matter of federal

constitutional law, hearsay may be admitted without violating the Confrontation Clause simply

because it falls within a “firmly rooted” exception to the hearsay rule, see Ohio v. Roberts, 448 U.S.

56, 66 (1980), Virginia does not permit such liberal admission of hearsay evidence. Under settled

Virginia law, hearsay evidence may not be admitted under the exception for declarations against

penal interest unless the evidence meets three requirements: (1) the declarant must be unavailable,

(2) the statement must be inculpatory of the declarant; amd (3) the statement must be reliable and

trustworthy. See Chandler, 249 Va. at 279, 455 S.E.2d at 224; Morris v. Commonwealth, 229 Va.

145, 147, 326 S.E.2d 693, 694 (1985); Ellison v. Commonwealth, 219 Va. 404, 408, 247 S.E.2d

685, 688 (1978); Hines v. Commonwealth, 136 Va. 728, 745, 117 S.E. 843, 847-848 (1923).

Indeed, in Lilly’s case, the Virginia Supreme Court followed its well-established law: it found that

Mark Lilly was unavailable as a witness;’ that he knew his pretrial statements implicated him in the

crimes described; and that the statements “were clothed in the necessary indicia of reliability.”

Lilly, 255 Va. at 573-574, 499 S.E.2d at 534.

The Virginia Supreme Court also found that the hearsay exception was “firmly rooted” in

Virginia law, id. at 575, 499 S.E.2d at 534, but that finding is superfluous to the Court's ultimate

holding with respect to reliability. In other words, hearsay evidence in every Virginia case,

including Lilly’s, must be analyzed for reliability based upon the particular facts of the case.

This Court has held that hearsay evidence may be admitted if it either meets the requirement of a

“firmly rooted” exception or if it is independently reliable and trustworthy. See Roberts, 448

* The petitioner never has contested this fact.

U.S. at 65-66. Because Virginia requires the “reliability” analysis in every case, a Virginia case

would be an entirely inappropriate vehicle for this Court to determine whether this particular

hearsay exception is “firmly rooted.” Therefore, regardless of how this Court were to resolve the

purported split regarding whether the exception is “firmly rooted.” it would have no effect on

Lilly’s case because the Virginia Supreme Court determined that the statement in question was

reliable.‘

Ill. LILLY’S “PER SE ERROR” ARGUMENT IS A

MISSTATEMENT OF THE LAW.

(Pet. Arg. A)

“Even if Lilly had preserved his argument below, this Court should not grant certiorari to

review what is, at best, a non-issue. Lilly states in the first sentence of his argument (Pet. 17) that

custodial confessions of a co-defendant are inadmissible under the Confrontation Clause. Implicit

in his argument is an assertion that this Court essentially has outlawed the use of such hearsay

statements. To the contrary, however, this Court expressly has held that such evidence may be

admissible if it is found to bear sufficient indicia of reliability. In Williamson v. United States, 512

U.S. 594, 603 (1994), this Court held that “[e]ven the confessions of arrested accomplices may be

* To be sure, the hearsay exception is “firmly rooted” in Virginia law, dating back to 1923. See

Hines, 136 Va. at 745, 117 S.E. at 848. However, the petitioner's list of cases supposedly

finding the exception “firmly rooted” is grossly inaccurate: he cites Jennings v. Maynard, 946

F.2d 1502 (10th Cir. 1991), but the Tenth Circuit later explained that the “firmly rooted” holding

in Jennings was dicta and that the Tenth Circuit did not believe the eT “firmly rooted” for

custodial confessions of co-defendants. Earnest v. Dorsey, 87 F.3d 1123, 1131 (10th Cir. 1996).

Lilly cites three other cases — United States v. Keltner, 147 F.3d 662 (8th Cir. 1998), United

States v. York, 933 F.2d 1343 (7th Cir. 1991) and United States v. Taggart, 944 F.2d 837 (11th

Cir. 1991) — but in each case, the court of appeals engaged in a “reliability” analysis even after

finding the hearsay exception “firmly rooted.” And the two final cases Lilly cites are ones which

cannot fairly be counted in the list: United States v. Katsougrakis, 715 F.2d 769 (2d Cir. 1983)

was decided before this Court in Lee v. Illinois, 476 U.S. 530, 544 n.5 (1986) hinted that the

exception may not be “firmly rooted” for co-defendants’ confessions; and United States v.

Seeley, 892 F.2d 1 (1st Cir. 1989) merely followed the ruling in Katsougrakis. Thus, even

though irrelevant to Lilly’s (or any Virginia) case, the purported “split” over the “firmly rooted”

issue is not a “split” at all: the lower courts uniformly treat confessions of co-defendants

differently from other hearsay and, whether or not the general exception is “firmly rooted,”

hearsay evidence of a co-defendant’s confession is analyzed by all courts for indicia of reliability

and trustworthiness before it is allowed into evidence.

admissible if they are truly self-inculpatory, rather than merely attempts to shift blame or curry

favor.” See also id. at 605 (not deciding constitutional issue but noting that “genuinely self-

inculpatory” nature of statement “is itself one of the ‘particularized guarantees of trustworthiness’

that makes a statement admissible under the Confrontation Clause”). In Lee, the Court made clear

that the presumption of unreliability generally associated with a co-defendant’s confession is

rebuttable, and that such evidence “may nonetheless meet Confrontation Clause reliability

standards if it is supported by a ‘showing of particularized guarantees of trustworthiness."” 476

U.S. at 543, quoting Roberts, 448 U.S. at 66.

Indeed, in Dutton v. Evans, 400 U.S. 74 (1970), this Court found no constitutional error in

the admission of a co-defendant’s hearsay statement, under facts strikingly similar to Lilly’s case:

Evans, Williams and Truett murdered three police officers in Georgia; Evans was tried separately;

Truett was the principal witness against Evans, describing in detail the murders; Williams did not

testify; an inculpatory statement made by Williams to another inmate was admitted into evidence

through the inmate witness. 400 U.S. at 77-78. Evans made a “per se” argument similar to the one

Lilly has made, and relied on several of the cases Lilly relies on for his “per se error” argument:

Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Bruton v. United

States, 391 U.S. 123 (1968). See Dutton, 400 U.S. at 83-84. This Court carefully distinguished

each case: Pointer involved the use at trial of the transcript of the robbery victim’s preliminary

hearing testimony, the robbery victim was the chief witness and Pointer had no counsel

representing him at the preliminary hearing; Douglas involved the “flagrant violation” of

allowing the prosecutor to read the accomplice’s confession under the guise of refreshing the

accomplice’s recollection even after he had refused to testify under the Fifth Amendment; and

Bruton involved the question of whether a jury in a joint trial could follow instructions to

disregard admittedly inadmissible, albeit fully presented, hearsay evidence of the co-defendant’s

confession. Indeed, this Court noted that “[t)here was not before us in Bruton ‘any recognized

exception to the hearsay rule,”” and the Court was careful to emphasize that “we intimate no

view whatever that such exceptions necessarily raise questions under the Confrontation Clause.”

Dutton, 400 U.S. at 84-86, quoting Bruton, 391 U.S. at 128 n.3.

The particular hearsay exception at issue in Dutton was for declarations of co-

conspirators and this Court approved the admission of the hearsay despite the fact that the

Georgia exception was broader than the exception for co-conspirator statements under the federal

rules. 400 U.S. at 83. This Court found the hearsay constitutional because the facts of the

particular case and the context of the hearsay among all the other evidence in the case

demonstrated its reliability. Id. at 87-89. Significant among the factors indicating reliability,

moreover, was the fact that the hearsay was against the penal interest of the declarant. Id. at 89.

Of course, contrary to Lilly’s erroneous exaggeration that no court ever has admitted such

evidence, many courts have in fact found admissible the type of hearsay admitted in Lilly’s case.

See, e.g., United States v. Workman, 860 F.2d 140 (4th Cir. i988); United States v. Smith, 792

F.2d 441 (4th Cir. 1986); United States v. Keltner, 147 F.3d 662 (8th Cir. 1998); United States v.

Taggart, 944 F.2d 837 (11th Cir. 1991); Earnest v. Dorsey, 87 F.3d 1123 (10th Cir. 1996);

Oregon v. Neilsen, 853 P.2d 256 (Or. 1993).

The simple fact is that, despite Lilly’s isolating from this Court’s cases those passages

which question the reliability of co-defendants’ confessions as a general matter, the law

governing the admissibility of such hearsay evidence is settled. The lower courts, including the

Virginia Supreme Court, know that care must be taken with such evidence to assure its

reliability. That principle, however, never has prohibited such evidence as a matter of law,

rather, each case must be determined on its own facts. Lilly’s argument thus is inappropriate for

certiorari review. See Ross v. Moffitt, 417 U.S. 600, 616-617 (1974) (certiorari inappropriate

merely to review application of existing precedent to facts); United States v. Johnston, 268 U.S.

220, 227 (1925) (same).

IV. THE “INDICIA OF RELIABILITY” FOUND TO

SUPPORT THE ADMISSION OF MARK LILLY’S

STATEMENTS ARE FACTUAL MATTERS NOT

APPROPRIATE FOR CERTIORARI REVIEW.

(Pet. Arg. C)

Lilly’s last argument is that Mark Lilly’s pretrial statements could not be believed due to

perceived inconsistencies between the statements and other evidence, and based upon Mark

Lilly’s post-trial recantation.’ Lilly’s arguments were made in the trial court and in the Virginia

Supreme Court. The two state courts rejected Lilly’s arguments, however, because the evidence,

facts and circumstances of this particular case, including the audio taped recordings and

transcripts of the taped recordings, demonstrated that Mark Lilly’s statements were reliable and

trustworthy.

This Court has stated that the reliability determination for hearsay evidence is a “fact-

intensive inquiry.” Williamson, 512 U.S. at 604; see also id. at 621 (Kennedy, J., concurring) (“a

difficult, factbound determination”). See also California v. Green, 399 U.S. 149, 168-169 (1970)

(remand of hearsay issue to state court because “[i]ts resolution depends much upon the unique

facts in this record, and we are reluctant to proceed without the state court’s views of what the

record actually discloses”). Lower federal courts recognize this principle by their application of

a “clearly erroneous” standard of review to a “finding of the trial judge on the guarantees of

trustworthiness” of hearsay. Workman, 860 F.2d at 144. The Virginia Supreme Court employs a

* Lilly’s reliance on his brother’s post-sentencing hearing testimony in which his brother said he

had lied to the officers, may not be considered now because it obviously could not have been

considered at the time the trial court ruled upon the admissibility of the statements. In any event,

it certainly does not undermine the reliability of the original statements. Mark’s “recantation”

not only was thoroughly impeached by his admission that he had decided to testify only after he

had been sentenced. efit iio timully band Slaaned tiie Gor bio tented’ suvicion anit eiier hie

mother had filed in court to take away custody of his child (JA 3101-3102), but also by the fact

OS OS neither exonerated his brother in the murder of Alexander DeFilippis nor

to identify the triggerman. (JA 3102-3103). Significantly, Mark’s implausible

“yecantatlen” did not persuade the trial court or the Virginia Supreme Court to set aside the jury’s

verdict.

similar standard of review: a reliability determination lies within “the sound discretion of the

trial court, to be determined upon the facts and circumstances of each case.” Ellison, 219 Va. at

408, 247 S.E.2d at 688; see also Williamson, 512 U.S. at 621 (Kennedy, J., concurring) (“District

judges, who are close to the facts and far better able to evaluate the various circumstances than

an appellate court, therefore must be given wide discretion to examine a particular statement....”).

This Court does not sit to review or redetermine facts. See Sup. Ct. R. 10; Kyles v.

Whitley, 514 U.S. 419, 458 (1995) (Scalia, J., dissenting) (“an intensively fact-specific case in

which the court below unquestionably applied the correct rule of law and did not unquestionably

err [is] precisely the type ot case in which we are most inclined to deny certiorari”) (emphasis in

original). Lilly’s fact-bound “reliability” argument, however, asks this Court to do just that.

This Court should refuse to redecide the factual findings of the two lower courts. See Tiffany

Fine Arts, Inc. v. United States, 469 U.S. 310, 318 n.5 (1985) (factual findings by the trial court

upheld by the appellate court should not be reviewed under the “two court” rule).

In any event, the two lower state courts properly determined that Mark Lilly’s statements

were reliable. This Court stated in Williamson that “the very fact that a statement is genuinely

self-inculpatory...is itself one of the ‘particularized guarantees of trustworthiness’ that makes a

statement admissible.” 512 U.S. at 605. Contrary to Lilly’s repeated assertion that Mark denied

any criminal liability and tried to cast blame on his brother, the transcripts of Mark’s two

interviews with the officers discredit Lilly's assertions.

First, Mark’s statements given to Officers Price, Hamlin and Fleet obviously subjected

him to criminal liability and, therefore, were against his penal interest. (JA 2253-2282, 2318-

2332). The officers expressly warned him before each statement that what he said would be used

against him if charges were brought. (JA 2255, 2318). Mark not only admitted that he

participated in the Saunders break-in, that he went along with Alex’s abduction, stood by while

the murder occurred and participated in the subsequent two “getaway” robberies, but he also told

the officers that he knew his statements to them would result in charges of robbery and

murder, both of which carried possible life sentences. (JA 2281, 2324).° There can be no

question about the fact that Mark Lilly knew his statements were against his penal interest.’

Second, although Lilly contends that Mark made statements which were internally

inconsistent or contradictory to Gary Barker’s testimony, the inconsistencies were on essentially

minor points: what Mark stole in the break-in and whether he got out of the car at the murder

scene. Petitioner's complaints about inconsistencies, moreover, were matters which could have

been, and in many instances were, pointed out to the jury. (JA 2734-2737, 2746, 2748). The

hearsay that may be admitted without violating the defendant’s confrontation rights is that which is

sufficient “to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior

statement.’” Roberts, 448 U.S. at 65-66. Lilly’s jury, which had seen and heard the tape-recorded

police interviews, had a sufficient basis upon which to determine whether Mark was telling the

truth. The statements, therefore, met the threshold “reliability” precondition to admission into

evidence. See United States v. Shaw, 69 F.3d 1249, 1253 (4th Cir. 1995) (“this trustworthiness

requirement — which serves as a surrogate for the defendant’s in-court cross-examination — is

* Lilly inaccurately states that the officers threatened Mark with particular sentences. The only

discussion of what charges would be brought was in oo to Mark’s question. Officer Price

told him only that he would be charged with two robberies in his county; the officer did

not discuss sentences at all and told Mark he did not know what charges from other counties

would be brought. (JA 2281).

” To the extent Lilly argues that Mark’s statements should have been separated out or

categorized as to whether each phase was inculpatory or collateral-to-inculpatory, as this Court

found must be done under FRE 804(b)(3), see Williamson v. United States, his argument

presents no federal constitutional issue. Tike Cust tnd clear'in Wiicaiian has Was nat

deciding any constitutional issue, 512 U.S. at 605, and further made clear that Congress was free

to draft a rule of evidence allowing hearsay statements which are collateral to the actual

inculpatory statements against penal interest. Id. at 600. Virginia follows the common law rule

that allows in the declarant’s entire statement containing declarations against penal interest if the

entire statement is found to be reliable. See id., 512 U.S. 2 a8 Eee, J., concurring)

(“From the very beginning of this exception, it has been held that a declaration against interest is

admissible, not only to prove the disserving fact stated, but also to prove other facts contained in

collateral statements connected with the disserving statement.”) (quoting Jefferson, 58 Harv. L.

Rev. 1, 57 (1944)).

ee EE Se ee SE Pee

satisfied if the court can conclude that cross-examination would be of ‘marginal utility’) (quoting

Idaho v. Wright, 497 U.S. 805, 820 (1990)).

Third, the fact that the statements were given voluntarily, after Miranda warnings, to law

enforcement officers who tape-recorded them in formal interviews indicates their reliability because

Mark surely knew that the officers could and would verify his statements with the surviving victim-

witnesses as well as with Gary Barker and the defendant. See United States v. West, 574 F.2d

1131, 1135 (4th Cir. 1978) (declarant’s interest in gaining favor with the officers “gave him every

incentive to be extremely accurate in his reports” because he knew the officers would seek to

corroborate and verify his reports).* The transcripts of Mark’s statements disclose that the officers

made no threats or promises to Mark. The officers, moreover, all were available at trial for cross-

Fourth, the fact that Mark’s statements implicated his own brother as the shooter, as

opposed to Gary Barker, certainly is a strong indication of their reliability. (JA 2265-2266: in

response to Officer Price’s request to tell him who did the shooting, Mark stated, “Well, it’s kinda

hard cause he’s my fucking brother man”; JA 2323: in response to Officer Hamlin’s statement that

they were trying to find out what happened to the murder victim, Mark said, “Yeah. Yeah, Man,

something else, too. I’m going to be getting all these charges and that’s my brother I’m telling

on.”).

Fifth, the fact that Mark’s statements were corroborated on every material point by the trial

testimony of Gary Barker (JA 2025-2150) and the other evidence in the case also demonstrates

their trustworthiness. And yet another indication of the reliability of Mark Lilly’s statements is

the fact that neither Gary Barker nor the petitioner, to this day, ever has claimed that Mark was

* Officer Price cautioned Mark to be truthful and take responsibility for his actions because if he

did not, the court would not look at the confession “as it should.” (JA 2257).

the shooter or even that Mark was in any manner more culpable than he had indicated in his

pretrial statements.

Unlike the circumstances in Lee v. Illinois, where the co-defendant was reluctant to talk to

the police until after he had been told that Lee had implicated him in the crime and that Lee wanted

to “share the rap” with her, 476 U.S. at 544, Mark Lilly willingly and voluntarily told the officers

what had happened shortly after his arrest. The officers never accused Mark of being the shooter

and, for the most part, merely asked what had happened.

Unlike the circumstances in Douglas where the only direct evidence against the defendant

was the confession of his co-defendant and where the prosecutor clearly engaged in misconduct,

380 U.S. at 416-417, Mark Lilly’s statements were merely corroborative of the extensive testimony

given by Gary Barker and the other evidence in the case, and no prosecutorial misconduct occurred.

Unlike the circumstances in Pointer where the victim’s hearsay again was the primary evidence

against the defendant and where the defendant had been unrepresented by counsel at the

preliminary hearing and thus had been unable to cross-examine the victim, Mark Lilly’s statements

were not the primary evidence and were in fact shown to be reliable by the circumstances of the

interviews, by the statements themselves and by the corroborating evidence.

Indeed, unlike the typical co-defendant case in which one turns on the other for retribution

or to gain favor with, or better treatment from, the authorities, here the record contains no such

indications of untrustworthiness. Mark Lilly told the officers the truth about his own actions and

only reluctantly described the actions of his brother. Mark in fact refused to testify against his

brother. He agreed to testify only after the trial was over and after his own family had blamed him

for his brother’s conviction. Even then, he only generally disclaimed his prior confession, refusing

to change any material details. Mark’s post-trial “recantation” was not believed by the judge who

saw him testify. His statements given shortly after the crime spree are replete with indicia of their

reliability and the state courts violated no constitutional rule in allowing those statements into

evidence.

Vv. THE “SPLIT” IN THE CIRCUIT COURTS OF

APPEALS OVER THE USE OF CORROBORATING

EVIDENCE INVOLVES NO CONSTITUTIONAL

ISSUE RELEVANT TO LILLY’S CASE.

(Pet. Arg. C(2))

Lilly's “split” argument is a confusing misreading of this Court’s decisions in Idaho v.

Wright and Williamson v. United States. Lilly actually makes two mutually exclusive

arguments: (1) Idaho vy. Wright allegedly barred the rule which the Virginia Supreme Court and

other courts employ that before a hearsay statement against penal interest may come into

evidence, it must be independently corroborated by other evidence and, thus, the Virginia

Supreme Court erred under Wright when it found that independent evidence corroborated Mark

Lilly's statements; and (2) there is a “split” in the lower courts on the issue of whether

corroborative evidence may be considered. Obviously, if this Court already has decided the

issue, as is contended by Lilly, then there can be no “split” of authority on the issue.

In fact, however, the “split” which Lilly has referenced does not even pertain to Lilly's

case. Lilly states that “[i}n Williamson, this Court noted that the Courts of Appeal [sic] are

divided regarding the use of corroborating evidence to establish a statement’s reliability.” (Pet.

29). Lilly, however, simply has misread the opinion. What Williamson noted was that some

Courts of Appeals have read the second sentence of FRE 804(b)(3) to require corroboration for

statements inculpating the accused, as opposed to ones exculpating the accused. 512 U.S. at

605. That “split” of authority over the statutory construction of a federal rule of evidence

implicates no constitutional matter. Indeed, Williamson expressly disavowed a constitutional

basis for its decision. Id.

Lilly’s real argument is that the Virginia Supreme Court did not follow what Lilly

perceives to be a requirement in Wright: that it was prohibited from considering the evidence

corroborating Mark Lilly’s statements when it found the statements to be reliable. Lilly.

however, never voiced this concern to the Virginia Supreme Court until he filed his petition for

rehearing and, for the reasons stated above, that untimely argument could not have been

considered by the Virginia Supreme Court, and it, therefore, may not be considered now.

In any event, Lilly’s argument presents no “compelling” reason to grant certiorari. In

Wright, this Court was faced with a different issue than the one in Lilly’s case. In Wright, the

Idaho Supreme Court had found that a 2 '4 year-old child’s statements of sexual abuse given to

an examining physician lacked the particiuarlized guarantees of trustworthiness necessary to

satisfy the requirements of the Confrontation Clause. 497 U.S. at 813. The statements had been

admitted at trial under Idaho's “residual” hearsay exception. The Idaho Supreme Court found

that the statements were unreliable because the physician had not tape-recorded them, had asked

leading questions and had a preconceived idea of what the child should say. Id. at 812-813.

In affirming the Idaho court’s decision, this Court rejected the government's argument

that evidence independent of the physician's interview demonstrated the reliability of the little

girl’s statements: the 5-year-old sister's similar claims of sexual abuse and physical evidence of

abuse. Id. at 824. In so doing, the Court noted the particular danger in relying on independent

evidence in child sex-abuse cases, ¢.g., physical evidence which does not necessarily identify the

perpetrator. Id.

The Court in Wright did not hold that its “no corroborative evidence” ruling applied to all

hearsay exceptions, much less to declarations against penal interest and, indeed, its decision in

Williamson four years later gave some indication that the Wright ruling is mot required under the

Constitution in cases involving the hearsay exception for declarations against penal interest.’ In

equated a determination of whether a statement is self-inculpatory under FRE 804(b)(3) with a

y The majority opinions in Wrighs and Williamegn both were authored by Justice O'Conner.

determination of whether a statement is reliable under the Constitution. 512 U.S. at 605. In the

very next sentence, the Court noted that the Courts of Appeals are split over whether FRE

804(b)(3) requires a finding that corroborating evidence supports a hearsay statement under the

penal interest exception, but found it unnecessary to resolve the split. Id.

Such a split, of course, would not need resolution at all if, as Lilly argues, Wright already

had pronounced a binding constitutional rule. In other words, Lilly's attempt to extend Wright

beyond its own facts and beyond the hearsay exception discussed therein, simply has no basis in

this Court’s decisions. If Wright swept as broadly as Lilly argues, then the Court could not have

referred, as it did later in Williamson, to a “split” over the use of corroborative evidence under

FRE 804(b)(3).

Moreover, the principles which supported the “no corroborative evidence” rule ia Wnght

simply do not make sense in the context of the “declaration against penal interest” exception. In

Wright, the very circumstances of the interview demonstrated the unreliability of the child's

statements. In Lilly’s case, and other “against penal interest” cases, the first element of the

exception requires a finding that the statement itself is genuinely self-inculpatory and known to

be so by the declarant; thus, it is the circumstance surrounding the statement itself that

establishes reliability, not corroborative evidence. The additional requirement of corroboration”

only enhances that reliability determination; it does mot replace it, as was argued for (and

rejected) under the different circumstances in Wright.

Consequently, Lilly simply is wrong when he asserts that Wright required courts to

disregard corroborative evidence when considering statements against penal interest. He also is

interest: (1) unavailable witness; (2) truly inculpatory statement; and (3) reliability. It is only

a demonstration that the statement 1 the declarant — a demonstration which this

held makes the statement reliable, 512 U.S. at 605 — that Virginia then

additionally requires Sat ae a. tae confenien to omen Ge

es ten'Ge asian” hie 229 Ve of 147, 326 S.E.2d at 694. This additional

requirement is more than the federal rule of evidence or the Constitution requires.

wrong when he asserts that there is a “split” of authority that can have any relevance to the

constitutional requirements for the admission of hearsay evidence in his case. Lilly's “no

corroboration” argument demonstrates only his own misreading of the settled law governing the

admission of hearsay; this Court should not grant certiorari merely to explain these already-

decided principles.

VIL. CERTIORARI SHOULD NOT BE GRANTED

BECAUSE EVEN IF ERROR OCCURRED IT WAS

HARMLESS.

Lilly’s arguments present no compelling reason to grant certiorari because they were not

properly preserved and involve only claims of misapplication of settled law to particular facts.

However, even if an error had occurred, it would have been harmless in this case. See Lee, 476

U.S. at 547 (confrontation violation does not “foreclose the possibility that [the] error was harmless

when assessed in the context of the entire case against [the defendant]”). Here, there is no credible

argument that the other evidence in the case did not overwhelmingly prove that petitioner

committed the capital murder. Gary Barker was an eyewitness who observed Lilly abduct, rob and

murder Alex DeFilippis. (JA 2025-2173). Barker’s trial testimony was far more detailed than

Mark’s pretrial statements, and it thoroughly corroborated Mark’s statements. (JA 2254-2282,

2318-2332).

It was the petitioner's car that was used in the initial part of the crime spree and the

petitioner's car that broke down, necessitating his abduction of DeFilippis and theft of his

automobile. When he was apprehended wielding a shotgun, the petitioner lied to the police officers

about his identity and that of his accomplices. Petitioner made incriminating statements: at the

arrest site, petitioner called to his brother Mark in the woods to give himself up because Mark was

“not the one who has done anything wrong;” in the police car, the petitioner asked Officer Whitsett

to kill him and, when the officer asked what a murderer looked like, Lilly said “me.” A forensic

examination of the accomplices’ clothing found blood on the petitioner’s pants leg, yet no blood on

Mark’s clothes and no blood on Gary’s clothes that was not his own.

When assessed in the context of the entire case against the defendant, it is clear that Lilly's

guilt was established by overwhelming evidence independent of the hearsay statements. The

admission of the hearsay, even if erroneous, thus was harmless beyond a reasonable doubt.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

Respondent herein.

By: ANSE. av ee

Counsel