Lilly v. Virginia, 527 U.S. 116 (1999)

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certiorari to the supreme court of virginia

No. 98-5881. Argued March 29, 1999—Decided June 10, 1999

Petitioner, his brother Mark, and Gary Barker were arrested at the end of a 2-day crime spree, during which they, inter alia, stole liquor and guns and abducted Alex DeFilippis, who was later shot and killed. Under police questioning, Mark admitted stealing alcoholic beverages, but claimed that petitioner and Barker stole the guns and that petitioner shot DeFilippis. When Virginia called Mark as a witness at petitioner's subsequent criminal trial, Mark invoked his Fifth Amendment privilege against self-incrimination. The trial court then admitted his statements to the police as declarations of an unavailable witness against penal interest, overruling petitioner's objections that the statements were not against Mark's penal interest because they shifted responsibility for the crimes to Barker and petitioner, and that their admission would violate the Sixth Amendment's Confrontation Clause. Petitioner was convicted of the DeFilippis murder and other crimes. In affirming, the Virginia Supreme Court found that the Confrontation Clause was satisfied because Mark's statements fell within a firmly rooted exception to the hearsay rule. The court also held that the statements were reliable because Mark knew that he was implicating himself as a participant in numerous crimes and because the statements were independently corroborated by other evidence at trial.

Held: The judgment is reversed, and the case is remanded.

255 Va. 558, 499 S. E. 2d 522, reversed and remanded.

Justice Stevens delivered the opinion of the Court with respect to Parts I, II, and VI, concluding:

1. This Court has jurisdiction over petitioner's Confrontation Clause claim. He expressly argued the claim in his opening brief to the Virginia Supreme Court; and his arguments based on Williamson v. United States, 512 U. S. 594, and the Confrontation Clause opinion of Lee v. Illinois, 476 U. S. 530, in responding to the Commonwealth's position, sufficed to raise the issue in that court. P. 123.

2. The admission of Mark's untested confession violated petitioner's Confrontation Clause rights. Adhering to this Court's general custom of allowing state courts initially to assess the effect of erroneously admitted evidence in light of substantive state criminal law, the Virginia courts are to consider in the first instance whether this Sixth Amend-

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