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 
- 2 - 

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 
- 3 - 

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 
- 4 - 

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. 
- 5 - 

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. 
- 6 - 

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. 
- 7 - 

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.