COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
LOUIS W. RAIA, S/K/A
LOUIS WILLIAM RAIA
OPINION BY
v. Record No. 1950-95-4 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
Paul A. Scott (Madigan & Scott, Inc., on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions for second degree murder and
use of a firearm in the commission of murder, Louis W. Raia
contends that the trial court violated his rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution by permitting a police investigator to read to the
jury a transcript of a third party's statement. We disagree and
affirm the judgment of the trial court.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On November 17, 1994, Raia fatally shot John H. Baumgardner
in the parking lot in front of Bennigan's restaurant at Fair Oaks
Mall in Fairfax County. After leaving the parking lot with
Sheron Montrey, Raia telephoned the police and reported falsely
that his car had been stolen. Suspecting their involvement in
the shooting, the police transported Raia and Montrey to a police
station.
After being told by the police that a witness had identified
him as the shooter, Raia waived his Miranda rights and gave a
statement. He said that Montrey told him that an individual
named "Tony" had assaulted, molested and stalked her for two
years, and that she was meeting "Tony" at Bennigan's restaurant
later that day. Raia, who admitted a romantic involvement with
Montrey, agreed to wait for her in the parking lot to ensure her
safety. When Montrey exited the restaurant with Baumgardner,
Raia removed his gun from his car. He approached Montrey and
Baumgardner, feigned a chance encounter, introduced himself to
Baumgardner, then suggested that they all return to Bennigan's.
When Baumgardner rejected this suggestion and began to walk off
with Montrey, Raia shot him. Raia testified that he thought
Baumgardner was armed and was attempting to abduct Montrey.
At trial, the Commonwealth called Montrey as a witness.
Asserting her Fifth Amendment rights, she refused to answer any
questions concerning the shooting. Over objection by the
defense, the trial court permitted a police investigator to read
to the jury a statement given by Montrey to the police. In her
statement, Montrey said that she had been seeing Baumgardner for
about two years, during which time he had abused her. She said
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that she had discussed with Raia her troubles with Baumgardner
and that she and Raia had planned to remove Baumgardner from her
life. She said that she and Raia had gone to Bennigan's on
previous occasions looking for Baumgardner but had not
encountered him until the night of the shooting. She said that
it was more her idea than Raia's, but that they had planned to
lure Baumgardner to the parking area of the mall where Raia would
do whatever was necessary, including shooting Baumgardner, to
relieve her of further encounters and difficulties with
Baumgardner. She said that Raia had put the gun in his car
earlier so that he would have it when he confronted Baumgardner.
She said that Raia shot Baumgardner in the back.
Raia contends that the admission of Montrey's statement into
evidence against him violated his Sixth Amendment right of
confrontation. He cites Lee v. Illinois, 476 U.S. 530 (1986),
which held that because of its inherent unreliability, the
admission of a co-defendant's confession into evidence violated
the Confrontation Clause. Id. at 545. See also Bruton v. United
States, 391 U.S. 123 (1968). However, the confession of a
co-defendant, if clothed with sufficient "indicia of
reliability," is admissible. Lee, 476 U.S. at 543. See also
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
Bruton and Lee involved joint trials and concerned
statements that depended for their admissibility upon their
characters as confessions of defendants on trial. Noting the
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natural incentive of an accused to exonerate himself by blaming
another, the Supreme Court recognized the inherent unreliability
of such statements as evidence against co-defendants of the
declarant. This case does not involve a scenario comparable to
those in Bruton and Lee. Raia and Montrey were not jointly on
trial. The Commonwealth did not proffer Montrey's statement as
the confession of a defendant. Because she was not on trial,
her statement did not depend for admissibility on its character
as her confession. Rather, her statement was offered against
Raia as a declaration against interest made by an unavailable
witness.
A third party's statement is admissible as an exception to
the hearsay rule if: (1) the declarant is unavailable, (2) the
statement was against the declarant's interest at the time it was
made, and (3) the declarant was aware at the time the statement
was made that it was against his interests to make it. Boney v.
Commonwealth, 16 Va. App. 638, 643, 432 S.E.2d 7, 10 (1993)
(citations omitted). Furthermore, the declaration must be shown
to be reliable. Ellison v. Commonwealth, 219 Va. 404, 408, 247
S.E.2d 685, 688 (1978). The determination of 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." Id. at 408, 247 S.E.2d at 688.
When Montrey invoked her rights under the Fifth Amendment
and refused to testify, she became unavailable as a witness.
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Boney, 16 Va. App. at 643, 432 S.E.2d at 10. Her statement was
plainly against her penal interests at the time it was made. It
implicated her in planning an assault on Baumgardner, threatening
him with a deadly weapon, killing him if necessary, and
participating in carrying out that scheme. The transcript of her
statement discloses rational responses to questions and renders
inescapable the inference that she must have realized the
seriousness of her self-implication. Therefore, if Montrey's
statement was otherwise reliable, it was admissible as a
statement against her penal interests.
Montrey's statement contained sufficient indicia of
reliability to establish its admissibility. First, both Raia and
Montrey confessed voluntarily. Second, Raia's statement and
testimony corroborate Montrey's statement in significant
respects. Raia's and Montrey's statements are consistent in
their descriptions of the events leading up to, and including,
the shooting, of Raia's and Montrey's participation in those
events, and of their attempted "cover-up" immediately following
the shooting. Third, Montrey's statement is also consistent with
the physical evidence. Fourth, Montrey's statement was less
favorable to her penal interests than was Raia's. Fifth,
Investigator Headley's description of the circumstances of
Montrey's statement and her demeanor while giving it supports the
finding that her statement was reliable. See United States v.
Eury, 792 F.2d 441, 444 (4th Cir. 1986), cert. denied, 479 U.S.
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1037 (1987).
Raia argues, however, that while the two statements overlap
in their factual recitations to a great extent, they diverge with
respect to any planning of the murder, and that such divergence
is not insignificant. Therefore, Raia argues the reliability of
Montrey's statement was not established. This argument addresses
a factual determination by the trial court. See Ellison, 219 Va.
at 408. Because this determination is supported by credible
evidence, we will not disturb it on appeal.
As the Supreme Court has noted, "[t]he fact that a statement
is self-inculpatory does make it more reliable . . . ."
Williamson v. United States, 114 S. Ct. 2431, 2435 (1994).
Because the record discloses sufficient indicia of reliability to
support the trustworthiness of Montrey's statement, the trial
court did not abuse its discretion in admitting that statement as
an exception to the hearsay rule. See Chandler v. Commonwealth,
249 Va. 270, 279, 455 S.E.2d 219, 224-25 (1995).
[W]here proffered hearsay has sufficient
guarantees of reliability to come within a
firmly rooted exception to the hearsay rule,
the Confrontation Clause is satisfied.
* * * * * * *
To exclude such probative statements under
the strictures of the Confrontation Clause
would be the height of wrongheadedness, given
that the Confrontation Clause has as a basic
purpose the promotion of the "'integrity of
the factfinding process.'" . . . [A]
statement that qualifies for admission under
a "firmly rooted" hearsay exception is so
trustworthy that adversarial testing can be
expected to add little to its reliability.
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White v. Illinois, 502 U.S. 346, 356-57 (1992) (citations
omitted). Admissibility into evidence of the statement against
interests of an unavailable witness is a "firmly rooted"
exception to the hearsay rule in Virginia. Thus, the trial court
did not err in admitting Montrey's statement into evidence.
The judgment of the trial court is affirmed.
Affirmed.
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