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RANKINS v. COMMONWEALTH



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RANKINS

v.

COMMONWEALTH


JANUARY 27, 2000

Record No. 0066-99-1

DENNIE LEE RANKINS, S/K/A

DENNIE LEE RANKINS, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Present: Chief Judge Fitzpatrick, Judges Elder
and Lemons

Argued at Chesapeake, Virginia

Wilford Taylor, Jr., Judge

Wade A. Bowie (Joseph M. DuRant; Cumming,
Hatchett & Jordan, on briefs), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

OPINION BY JUDGE LARRY G. ELDER


Dennie Lee Rankins (appellant) appeals from his
bench trial convictions for malicious wounding and use of a
firearm in the commission of a malicious wounding. On appeal, he
contends (1) the trial court’s admission of the custodial
confession of a non-testifying accomplice violated the
Confrontation Clause and Virginia’s hearsay rule and (2) the
evidence was insufficient to support his conviction because it
did not establish he was a principal in the second degree. We
hold that the accomplice’s custodial confession was admissible
under Virginia hearsay law but inadmissible under the
Confrontation Clause and that its erroneous admission was not
harmless. Therefore, we reverse appellant’s convictions without
reaching the sufficiency issue, and we remand for a new trial.

I.

FACTS

On March 22, 1998, four teenagers–Shaun
Roberts, Ken Jones, Jesse Harrod and appellant–rode together in
Roberts’ car from Williamsburg to Hampton to visit Gwendolyn
Williams and her friend, Christine Johnson, at Williams’
apartment. Jones, Harrod and Johnson began to argue, and Jones
threatened Johnson. About that time, three older boys from
Williams’ neighborhood came to Williams’ apartment. Roberts and
appellant thought Johnson had called the older boys over to fight
Roberts and his friends, but they were able to leave without
incident.

Roberts, Jones, Harrod and appellant returned
to Williamsburg, where Jones retrieved a "big gun" from
his house. About 10:00 p.m. that same night, they returned to
Williams’ apartment complex. Roberts was driving, appellant was
sitting in the front passenger seat, Harrod was behind appellant,
and Jones was behind the driver. Williams, Johnson and one of the
older boys were standing outside Williams’ apartment. Jones
fired, hitting Williams.

Appellant was indicted for malicious wounding
and the related use of a firearm and was tried jointly with Shaun
Roberts in a bench trial. The Commonwealth sought to introduce
the out-of-court custodial confession of accomplice Ken Jones,
the shooter,
[1] who asserted his Fifth Amendment right not to testify.
Appellant argued that the confession was hearsay and that its
admission would violate his right of confrontation. The trial
court ruled that Jones’ statement was a declaration against
interest and admitted it into evidence.

The statements admitted were verbal and written
statements Jones made to Detective Gillis. Gillis went to Jones’
high school, took Jones into custody, read Jones his Miranda
rights and took his statement. Jones initially denied any
involvement in the crime but subsequently admitted his
involvement and told Gillis where to find the gun. Jones said,
"[t]here was an argument [at Williams' apartment] between
the girls and them, and . . . the girls had called an
unknown male over to the apartment." Then a group of boys
gathered and "started acting like they was going to fight
[Jones and his friends]." Jones said they were able to leave
without incident, but they were "mad and [Roberts] wanted to
go[] back to see [what] was up but not without a gun." They
returned to Williamsburg where Jones retrieved his .22 rifle, and
they went back to the area of Williams’ apartment. They found
"a lot of people . . . wait[ing] for [them],"
including "the same black male . . . they had [an] earlier altercation with." People were yelling at them and
moving toward the car but the car was too far away for them to
reach it. "As [Roberts] turned around the car and started to
leave . . . the parking lot,
. . . everybody in the car was yelling for him to
shoot, so he fired . . . to scare them."
[2] Jones said he did not see anyone,
did not aim and shot upward.

The Commonwealth subsequently offered
statements appellant and codefendant Roberts made to police.
Appellant posed no objection to the trial court’s considering
either statement as substantive evidence against him.

Appellant made two statements to Detective
Payne.
[3] Appellant told Payne

that he was with the other people that were
charged in this matter, that basically his only involvement with
this was that he, in fact, rode in the vehicle, that he didn’t
actively participate in these things . . . .

* * * * * * *

He indicated that the group of the four
individuals did in fact go to that apartment earlier in the day,
that there was a[n] altercation there between the girls and them,
and that they had left.

Prior to going back, . . . [Roberts] said that he didn’t want to go back without a gun, and
. . . they drove up to James City County where [Jones] had gotten his gun.

And . . . at that particular point in
time he wanted to get out, [he said take me home,] he didn’t want
to go back, but did go back with them.

[T]hey went into the parking lot and
. . . the gentleman was standing outside, and as they
turned the vehicle around and as they exited the parking lot
. . . [Jones] did in fact fire one shot.

Roberts also made a statement to Detective
Payne.
[4] Roberts told Payne in detail
about the repeated trips to Williams’ home, Johnson’s becoming
angry, and the arrival of older boys he thought Johnson had
called to fight Roberts and his companions. Roberts said that
when they left Williams’ house, appellant said they could get
some beer in Williamsburg, so Roberts drove back to Williamsburg,
believing they were going home anyway. When they arrived in
Williamsburg, it was still early, and they went back to Williams’
house. When they arrived, "the boy from earlier was standing
outside and he started signaling for other boys to come.
[Appellant] said come on lets [sic] go and I hurried up and
turned around and we were leaving. I heard the gun shot behind
us." Roberts confirmed that Jones was the person who fired
the shot.

Appellant did not testify, but Roberts took the
stand in his own behalf. Roberts testified about the repeated
trips to Williams’ apartment to see her. Roberts denied returning
to

Williamsburg to get a gun and said he did not
know Jones had a

gun until they were on their way back to
Hampton. He gave no testimony regarding appellant’s involvement
or lack of involvement in the shooting.

The trial court convicted appellant of the
charged offenses. Codefendant Roberts also was convicted.

II.

ANALYSIS

A.

VIRGINIA’S HEARSAY RULE:

STATEMENT AGAINST PENAL INTEREST EXCEPTION

The admissibility of a statement made by an
unavailable witness that is against his or her penal interest
"is a ‘firmly rooted’ exception to the hearsay rule in
Virginia."
[5] Lilly v. Commonwealth, 255
Va. 558, 575, 499 S.E.2d 522, 534 (1998), rev’d on other
grounds
, 119 S. Ct. 1887, 144 L. Ed. 2d 117
(1999). Under this exception, an out-of-court statement is
admissible to prove the truth of the matters asserted therein if
three requirements are met: (1) the declarant is unavailable to
testify at trial; (2) the statement is against the declarant’s
interest at the time it was made; and (3) the declarant is
subjectively aware at the time the statement is made that it is
against his or her interest to make it. See Lilly,
255 Va. at 573, 499 S.E.2d at 533; Randolph v. Commonwealth,
24 Va. App. 345, 355, 482 S.E.2d 101, 105-06 (1997).

In addition, the record must contain evidence
other than the declaration itself establishing its reliability,
such as independent evidence connecting the declarant with the
confessed crime. See Lilly, 255 Va. at 573-74, 499
S.E.2d at 533-34; Randolph, 24 Va. App. at 355-56, 482
S.E.2d at 106. Such evidence may include testimony from other
witnesses, physical

evidence, and the similarities or
"correspondence between [the declarant's] account and the
accounts of other persons acquired by law enforcement
authorities." Lilly, 255 Va. at 574, 499 S.E.2d at
534. It may also include evidence of the declarant’s demeanor and
the circumstances surrounding the giving of the statement,
including those indicating the voluntariness of the confession. See
Raia v. Commonwealth, 23 Va. App. 546, 551, 478 S.E.2d
328, 330 (1996).

That the declarant’s statements are
simultaneously against penal interest and "self-serving, in
that they tend[] to shift principal responsibility to others or
to offer claims of mitigating circumstances, goes to the weight
the [fact finder] [may] assign to them and not to their
admissibility." Lilly, 255 Va. at 574, 499 S.E.2d at
534. Determining whether a statement against penal interest is
reliable "lies within ‘the sound discretion of the trial
court, to be determined upon the facts and circumstances of each
case.’" Raia, 23 Va. App. at 550, 478 S.E.2d at 330
(quoting Ellison v. Commonwealth, 219 Va. 404, 408, 247
S.E.2d 685, 688 (1978)).

We hold that the trial court did not abuse its
discretion in ruling that Jones’ hearsay statements to Detective
Gillis satisfied the three-pronged test and, therefore, were
directly admissible against appellant under the statement against
penal interest exception to Virginia’s hearsay rule. Under the
first prong, the record indicates Jones was unavailable as a
witness because he asserted his Fifth Amendment right not to
testify. See Lilly, 255 Va. at 573, 499 S.E.2d at
533.

Under the second prong, Jones’ statement was
against his interest because he admitted firing the shot that
struck the victim and admitted that he intended to fire the shot,
although he denied aiming or intending to hurt anyone. By making
this statement, Jones subjected himself to criminal liability for
a variety of possible offenses, including malicious wounding and
discharging a firearm from a motor vehicle.

Under the third prong, the record supports the
conclusion that Jones was aware his statements were against his
interest at the time he made them. Detective Gillis took Jones, a
high school student, into custody and read him his Miranda
rights, which included information that anything Jones said could
be used against him. See, e.g., Penn v. Commonwealth,
210 Va. 242, 250, 169 S.E.2d 427, 433 (1969). After saying he
understood his rights and denying any involvement in the crime,
Jones then admitted that the gun was his, was still in his
possession and that he was the person who fired the shot that
wounded the victim. This evidence was sufficient to establish
Jones’ subjective awareness that the statements were against his
penal interest.

Finally, other evidence connected Jones to the
confessed crime, supporting the conclusion that the statement as
a whole was reliable enough to be admitted. Johnson saw
"fire" come from the car window where Jones was
sitting, and both appellant and Roberts confirmed that Jones was
the person who fired the shot. The absence of evidence
corroborating Jones’ statement that "everybody" in the
car encouraged him to shoot is not dispositive of the statement’s
admissibility. The self-serving nature of this portion of the
statement "goes to the weight the [fact finder] [may] assign
to [it] and not to [its] admissibility." Lilly, 255
Va. at 574, 499 S.E.2d at 534.

For these reasons, the trial court did not
abuse its discretion in holding the statement was admissible
under the Virginia hearsay rule.

B.

CONFRONTATION CLAUSE

The Confrontation Clause of the Sixth
Amendment, which applies to the States, provides: "In all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him." U.S. Const.
amend. VI; see Ohio v. Roberts, 448 U.S. 56, 62-63,
100 S. Ct. 2531, 2537, 65 L. Ed. 2d 597 (1980). The right to
confront witnesses secured by the Sixth Amendment encompasses the
right to cross-examine them. See Cruz v. New York,
481 U.S. 186, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987); Douglas
v. Alabama
, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076, 13
L. Ed. 2d 934 (1965). The right to confront and to cross-examine
witnesses is a "functional right" that "advance[s] the pursuit of truth" and "promotes reliability"
in criminal trials by "ensuring that convictions will not be
based on the charges of unseen and unknown–and hence
unchallengeable–individuals." Lee v. Illinois, 476
U.S. 530, 540, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514
(1986).

Under the Confrontation Clause, a hearsay
statement of an unavailable declarant is admissible "only if
it bears adequate ‘indicia of reliability.’" Roberts,
448 U.S. at 66, 100 S. Ct. at 2539. The United States
Supreme Court consistently has held, for Confrontation Clause
purposes,

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.

Lilly v. Virginia, 119 S. Ct. 1887,
1894, 144 L. Ed. 2d 117 (1999) (plurality opinion)
(quoting Roberts, 448 U.S. at 66, 100 S. Ct. at
2539). Although a hearsay statement that is against the penal
interest of the declarant is recognized as a "firmly rooted
exception" to the hearsay rule in Virginia,
[6] see
Lilly, 255 Va. at 575, 499 S.E.2d at 534; Raia, 23
Va. App. at 552, 478 S.E.2d at 331, the United States Supreme
Court has expressly refused to analyze "a confession by an
accomplice which incriminates a criminal defendant" as a
declaration against penal interest for the purpose of determining
the admissibility of such hearsay under the Confrontation Clause,
see Lee, 476 U.S. at 544 n.5, 106 S. Ct. at
2064 n.5. In Lee, the Supreme Court stated that the
category of "declarations against penal interest" is
"too large a class for meaningful Confrontation Clause
analysis" and held that "a confession by an accomplice
which incriminates a criminal defendant" should be
considered a distinct category of hearsay for the purpose of
determining its admissibility under the Sixth Amendment. See
id. More recently, in Lilly, seven justices voiced
their continuing adherence to Lee‘s categorization of such
confessions. See 119 S. Ct. at 1895 (plurality
opinion); 119 S. Ct. at 1904 (Rehnquist, C.J., joined by
O’Connor and Kennedy, JJ., concurring in the judgment).

The Court stated in Lee that, unlike
hearsay statements that fall under firmly rooted hearsay
exceptions, which presumably include statements against penal
interest made in other contexts, accomplices’ confessions that
incriminate defendants are "presumptively unreliable"
under the Sixth Amendment’s Confrontation Clause. 476 U.S. at
541, 106 S. Ct. at 2062. The Court also stated in Lee,
and reiterated in Lilly, that the presumption of
unreliability that attaches to accomplices’ confessions that
incriminate defendants may be rebutted.
[7] See Lee, 476 U.S. at 543, 106 S. Ct.
at 2063; Lilly, 119 S. Ct. at 1899 n.5, 1900
(plurality opinion); 119 S. Ct. at 1903 (Thomas, J.,
concurring); 119 S. Ct. at 1904-05 (Rehnquist, C.J.,
concurring). A hearsay statement that falls into this category
may "meet Confrontation Clause reliability standards if it
is supported by a ‘showing of particularized guarantees of
trustworthiness.’" Lee, 476 U.S. at 543, 106
S. Ct. at 2063;

Lilly, 119 S. Ct. at 1894,
1899-1901 (plurality opinion); id. at 1905-06 (Rehnquist,
C.J., concurring).

The Court previously has recognized that
whether the portions of an accomplice’s confession regarding a
defendant’s participation in a crime are sufficiently trustworthy
to be admissible without cross-examination under the Sixth
Amendment is determined by considering (1) the circumstances
surrounding the accomplice’s confession and (2) in a case in
which the defendant also made a confession, the extent to which
the accomplice’s and the defendant’s confessions
"interlock." See Lee, 476 U.S. at 544-46,
106 S. Ct. at 2064-65; Cruz, 481 U.S. at 193-94, 107
S. Ct. at 1719. The Court’s recent holding in Lilly
does not indicate a rejection of the interlock theory. A majority
in Lilly presumably concluded that the accomplice’s
custodial confession did not bear sufficient indicia of
reliability to be admissible against Lilly without
cross-examination but did not conclude that such statements are
never admissible. See Lilly, 119 S. Ct. at
1899-1901 (plurality opinion); 119 S. Ct. at 1903 (Scalia,
J., concurring in part and concurring in the judgment) (holding
that admission of confession was "paradigmatic Confrontation
Clause violation" without discussing bases for independent
admission such as indicia of reliability). Further, the Court did
not have occasion to consider the impact of the interlocking
nature of the defendant’s and accomplice’s confessions in Lilly
because the defendant’s confession was directly at odds with the
challenged confession of his accomplice. See Lilly,
119 S. Ct. at 1892. The accomplice reported to police that
the defendant murdered the victim and masterminded the related
carjacking and several robberies. See id. The
defendant, by contrast, reported that the accomplice and a third
person forced him to participate in the robberies, and he did not
mention the murder.
[8] See id.

When evaluating the circumstances surrounding
the confession, a court should consider the extent to which the

accomplice was "free from any desire,
motive, or impulse . . . either to mitigate the
appearance of his own culpability by spreading the blame [to the
defendant] or to overstate [the defendant's] involvement in
retaliation for her having implicated him in the [crime]." Lee,
476 U.S. at 544, 106 S. Ct. at 2064. When evaluating the
interlocking nature of the accomplice’s and the defendant’s
confessions, a court should consider the extent to which those
portions of the accomplice’s confession regarding the
defendant’s participation in the crime
are substantiated by
the defendant’s own confession. See id. at 545, 106
S. Ct. at 2064. When the discrepancies between the
statements are "not insignificant," the accomplice’s
out-of-court confession is inadmissible under the Sixth
Amendment. Id.; see Cruz, 481 U.S. at
192-93, 107 S. Ct. at 1718-19 (holding that tightly
interlocking nature of confessions establishes reliability, for
if codefendant’s confession "confirms essentially the same
facts as the defendant’s own confession it is more likely to be
true").

A majority of the Court has expressly held that
two factors are irrelevant to the inquiry of whether an
accomplice’s confession that incriminates a defendant is
admissible under the Sixth Amendment: (1) "whether the
[accomplice's] confession was found to be voluntary for Fifth
Amendment purposes," see Lee, 476 U.S. at 544,
106 S. Ct. at 2064 (stating that "such a finding does
not bear on the [Sixth Amendment] question"), and (2)
whether the other evidence at trial (except for the defendant’s
own confession) tends to corroborate the truth of the
accomplice’s statement, see Wright, 497 U.S. at
822-23, 110 S. Ct. at 3150 (stating that such corroboration
is "no substitute for cross-examination of the declarant at
trial" and would "permit admission of a presumptively
unreliable statement by bootstrapping on the trustworthiness of
other evidence at trial"). Instead, as with all hearsay
statements that are deemed admissible under the Confrontation
Clause, the portion of the accomplice’s confession incriminating
the defendant "must possess indicia of reliability by virtue
of its inherent trustworthiness" such that
adversarial testing would add little to its reliability. Id.
(emphasis added). "[T]he ‘particularized guarantees of
trustworthiness’ required for admission under the Confrontation
Clause must . . . be drawn from the totality of
circumstances that surround the making of the statement and that
render the declarant particularly worthy of belief."
[9] Id.
at 820, 110 S. Ct. at 3149.

Here, Jones admitted in his statement that he
fired the shot that wounded the victim but contended he did not
intend to hurt anyone. Although appellant’s and Jones’ statements
interlock in many respects, including the identities of those
present in Roberts’ car and their identification of Jones as the
shooter, at least one significant discrepancy exists regarding
appellant’s participation in the crime
. Appellant said in his
statement that he was merely present in the car during the
shooting and that "he didn’t actively participate in these
things." Jones, by contrast, said that "everybody"
in the car verbally encouraged him to "shoot up in the
air" as Roberts’ car left the victim’s neighborhood. This
portion of Jones’ statement constitutes a classic attempt of one
defendant to shift to others at least some of the blame for his
actions. As a result, Jones’ custodial confession did not bear
sufficient indicia of reliability to be directly admissible
against appellant in the absence of an opportunity for
cross-examination.

C.

HARMLESS ERROR

Under settled principles, a criminal conviction
involving a violation of the Confrontation Clause may be upheld
if the violation constituted error which was "’harmless
beyond a reasonable doubt.’" Lilly, 119 S. Ct.
at 1901 (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). Such an error may be harmless beyond a reasonable doubt
when other evidence of guilt "is so overwhelming, and the
prejudicial effect of the codefendant’s admission is so
insignificant by comparison, that it is clear beyond a reasonable
doubt that the improper . . . admission [of the
confession] was harmless error." See Schneble v.
Florida
, 405 U.S. 427, 430, 92 S. Ct. 1056, 1059, 31 L.
Ed. 2d 340 (1972) (involving Confrontation Clause error).

This standard requires a determination of
"whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction." In
making that determination, the reviewing court is to consider a
host of factors, including the importance of the tainted evidence
in the prosecution’s case, whether that evidence was cumulative,
the presence or absence of evidence corroborating or
contradicting the tainted evidence on material points, and the
overall strength of the prosecution’s case.

Lilly v. Commonwealth, 258 Va. 548, 551,
___ S.E.2d ___, ___ (1999) (on remand from United States Supreme
Court).

Under certain circumstances, where a
Confrontation Clause error results from the admission of the
custodial confession of a non-testifying accomplice, "the
defendant’s confession . . . may be considered on
appeal in assessing whether any Confrontation Clause violation
was harmless." Cruz, 481 U.S. at 193-94, 107
S. Ct. at 1719. The Court held in Cruz that, in the
usual case, the defendant challenges the existence or accuracy of
his own confession, and "[an] [accomplice's] confession will
be . . . enormously damaging if it confirms, in all
essential respects, the defendant’s alleged confession." Id.
at 192, 107 S. Ct. at 1718. Under these circumstances,
"a[n] [accomplice's] confession that corroborates the
defendant’s confession significantly harms the defendant’s case,
whereas one that is positively incompatible gives credence to the
defendant’s assertion that his own alleged confession was
nonexistent or false." Id. at 192, 107 S. Ct. at
1719. Therefore, where a defendant attempts to disclaim his own
confession and the non-testifying accomplice’s confession closely
interlocks, the erroneous admission of the accomplice’s statement
generally cannot be said to be harmless error. See id.
at 192, 107 S. Ct. at 1718-19.

Although considering the prospect unlikely, the
Court also acknowledged in Cruz that if the defendant’s
and the accomplice’s confessions "interlock" and the
defendant actually stands by his own confession, "it [may] be said that the [accomplice's] confession does no more than
support the defendant’s very own case." Id. at 192,
107 S. Ct. at 1719. Under these circumstances, therefore,
the erroneous admission of an accomplice’s interlocking
confession may be harmless error.

Here, appellant did not testify and did not
object to the admission of his own confession
[10] in which he admitted being in the
car with Jones, whom he knew had a gun, but denied he
participated in or encouraged the shooting. If Jones’ confession
interlocked with appellant’s in all critical respects, its
admission could be harmless. As set out above, however, Jones’
statement differed from appellant’s in one key respect–Jones
said "everybody" in the car, which would include
appellant, encouraged him to shoot, whereas appellant said in his
statement that he was merely present in the car during the
shooting and that "he didn’t actively participate in these
things." Therefore, the admission of appellant’s own
statement into evidence did not, standing alone, render the
erroneous admission of Jones’ statement harmless.

We also conclude that the evidence of
appellant’s guilt, other than Jones’ statement, was not
overwhelming. The Commonwealth proceeded against appellant on the
theory that appellant was a principal in the second degree to
Jones’ shooting of the victim. One who is "present, aiding
and abetting, and intend[s] his or her words, gestures, signals,
or actions to in some way encourage, advise, urge, or in some way
help the person committing the crime to commit it" is a
principal in the second degree. McGill v. Commonwealth, 24
Va. App. 728, 733, 485 S.E.2d 173, 175 (1997). "[M]ere
presence and consent will not suffice." Underwood v.
Commonwealth
, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978).
The person "must share the criminal intent of the party who
actually committed the [crime] or be guilty of some overt act in
furtherance thereof." Augustine v. Commonwealth, 226
Va. 120, 124, 306 S.E.2d 886, 889 (1983). The circumstantial
evidence of appellant’s guilt was not so overwhelming that we can
say the erroneous admission of Jones’ statement, the only direct
evidence of appellant’s encouragement, was harmless beyond a
reasonable doubt.

For these reasons, we hold that the trial
court’s admission of accomplice Jones’ custodial confession
violated the Confrontation Clause and that its erroneous
admission was not harmless. Therefore, we reverse appellant’s
convictions and remand for a new trial if the Commonwealth be so
advised.

Reversed and remanded.

 

 

FOOTNOTES:

[1] The statement included reference
to an earlier robbery, but the Commonwealth offered it for its
relevance to the shooting, and the trial court agreed to redact
any reference to anything other than the shooting.

[2] Jones also said in his written
statement that it was "Nobodys" idea "to shoot at
the people on Sacramento Dr."

[3] Appellant’s statements also
contained a reference to what appeared to be an earlier robbery,
but the Commonwealth asked the trial court "not to
consider" "any reference to any robbery charge,"
and the trial court responded, "All right."

[4] Roberts’ statement, which
included references to an earlier robbery, was considered by the
court in its entirety. The portion of Roberts’ statement
describing the robbery does not mention appellant and does not
make clear whether he was present in the car during the robbery.

[5] In reversing the Virginia Supreme
Court’s holding in Lilly on Confrontation Clause grounds,
a plurality of the United States Supreme Court stated, "We
assume, as we must, that [the accomplice's] statements were
against his penal interest as a matter of [Virginia] law . . . ." Lilly v. Virginia,
119 S. Ct. 1887, 1894, 144 L. Ed. 2d 117 (1999).
As early as 1923, the Virginia Supreme Court recognized this
exception for statements incriminating a third party declarant
and exculpating an accused, either directly or indirectly. See
Hines v. Commonwealth, 136 Va. 728, 739-50, 117 S.E. 843,
846-49 (1923); see also Newberry v. Commonwealth,
191 Va. 445, 460-62, 61 S.E.2d 318, 325-26 (1950). However, until
more recently, no Virginia appellate court appears to have
applied this principle in the context of a party’s efforts to
admit an accomplice’s statement or confession against penal
interest that also incriminates the accused. See, e.g., Chandler
v. Commonwealth
, 249 Va. 270, 278-79, 455 S.E.2d 219, 224-25
(1995); Scaggs v. Commonwealth, 5 Va. App. 1, 4-5, 359
S.E.2d 830, 831-32 (1987) (holding that accomplice’s out-of-court
statement incriminating accused would have been admissible as
statement against penal interest of accomplice if Commonwealth
had proved accomplice was unavailable but that error in admission
of statement was harmless). The plurality in Lilly agreed,
observing as follows:

[P]rior to 1995, it appears that even Virginia
rarely allowed statements against the penal interest of the
declarant to be used at criminal trials. . . .
Virginia relaxed that portion of its hearsay law when it decided Chandler
v. Commonwealth
, 249 Va. 270, 455 S.E.2d 219 (1995), and
. . . it later apparently concluded that all statements
against penal interest fall within "a ‘firmly rooted’
exception to hearsay in Virginia," [Lilly,] 255 Va.,
at 575, 499 S.E.2d, at 534 . . . .

Lilly, 119 S. Ct. at 1898-99.

[6] See supra note 5.

[7] The plurality of four justices in
Lilly opined that it is "highly unlikely" that
the presumption can be effectively rebutted if the statement
"shift[s] or spread[s] blame." 119 S. Ct. at 1899
n.5, 1900 (plurality opinion of Stevens, J., joined by Souter,
Ginsburg and Breyer, JJ.). Four other justices opined that the
Confrontation Clause "does not impose a ‘blanket ban on the
government’s use of accomplice statements that incriminate a
defendant.’" 119 S. Ct. at 1903 (Thomas, J., concurring
in part and concurring in the judgment); 119 S. Ct. at
1904-05 (Rehnquist, C.J., joined by O’Connor and Kennedy, JJ.,
concurring in the judgment).

Justice Scalia was the only member of the Court
whose opinion did not specifically acknowledge this view. Even
Justice Scalia’s opinion leaves open this possibility. He wrote
that Lilly involved "a paradigmatic Confrontation
Clause violation," but before making this statement, he
observed that "[the accomplice] told police officers that
[defendant Lilly] committed the charged murder." 119
S. Ct. at 1903. Therefore, the type of statement to which
Scalia referred could be characterized as one which shifts blame
away from the accomplice and wholly onto the defendant. Further,
Justice Scalia authored the opinion in Cruz, a case
involving an accomplice’s custodial confession. In Cruz,
the Court said "the defendant’s confession may be considered
at trial in assessing whether his co-defendant’s statements are
supported by sufficient ‘indicia of reliability’ to be directly
admissible against him." 481 U.S. at 193-94, 107 S. Ct.
at 1719. Thus, unless Justice Scalia has abandoned the views he
espoused in Cruz, he remains of the opinion that an
accomplice’s custodial confession incriminating a defendant may
be directly admissible against the defendant under certain
circumstances.

[8]The plurality in Lilly noted its rejection of the
"notion that ‘evidence corroborating the truth of a hearsay
statement may properly support a finding that the statement bears
"particularized guarantees of trustworthiness."’" Id.
at 1900-01 (citation omitted). However, in doing so, it
indirectly confirmed its belief that a defendant’s interlocking
confession, where one exists, may appropriately be considered in
assessing the reliability of the accomplice’s statement. In
rejecting the use of corroborative evidence to assess the
reliability of an accomplice’s confession, the plurality in Lilly
relied on the Court’s earlier decision in Idaho v. Wright,
497 U.S. 805, 822, 110 S. Ct. 3139, 3150, 111
L. Ed. 2d 638 (1990). In Wright, the Court
discussed the interlock principle and did not expressly reject it
or overrule the language in Lee. See id. at
823-24 & n.*, 110 S. Ct. at 3150-51 & n.*. It said
that, in Lee, it considered the interlock of the
accomplice’s and defendant’s confessions on the one hand and
declined to rely on corroborative physical evidence on the
other. See Wright, 497 U.S. at 824, 110 S. Ct.
at 3151 (citing Lee, 476 U.S. at 545-46, 106 S. Ct.
at 2064-65). It also noted that it "rejected the ‘interlock’
theory in [Lee,]" in which it held that it did not
apply on those facts, but it did not hold that consideration of
"interlock" is inappropriate corroborative evidence. See
Wright, 497 U.S. at 824, 110 S. Ct. at 3151.
Therefore, the plurality in Lilly did not reject the
Court’s prior holdings on the significance of interlock to the
independent admissibility of an accomplice’s statement
implicating the defendant.

[9] The plurality in Lilly
suggested additional limits on the types of evidence relevant to
establish a statement’s trustworthiness. It rejected the notion
that "the police’s informing [the accomplice] of his Miranda
rights render[ed] the circumstances surrounding his statements
significantly more trustworthy," saying that "a
suspect’s consciousness of his Miranda rights has little,
if any, bearing on the likelihood of truthfulness of his
statements." Lilly, 119 S. Ct. at 1901
(analogizing to Lee‘s rejection of idea that Fifth
Amendment voluntariness determination bears on trustworthiness of
statement (quoting Lee, 476 U.S. at 544, 106 S. Ct.
at 2064)). It also said that "the absence of an express
promise of leniency to [the accomplice] does not enhance his
statements’ reliability to the level necessary for their
untested admission." Id. (emphasis added). It
reasoned that "[t]he police need not tell a person who is in
custody that his statements may gain him leniency in order for
the suspect to surmise that speaking up, and particularly placing
blame on his cohorts, may inure to his advantage." Id.
The plurality did not suggest that the absence of a promise of
leniency is not a relevant factor for consideration. Further, of
course, because this portion of the plurality opinion represented
the view of only four members of the Court, its contents are
advisory rather than mandatory.

[10]Appellant’s lack of objection to the admission of his
confession, combined with his failure to testify and his reliance
on the confession in argument to the court, can only be fairly
interpreted as standing by his own confession.

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