Appeal from the Superior Court of the District of Columbia. (F1159-02). (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued February 24, 2005*fn1
Before WASHINGTON,*fn2 Chief Judge, and SCHWELB and WAGNER,*fn3 Associate Judges.
On July 18, 2002, a jury convicted Darion J. Ingram of assault with intent to kill while armed,*fn4 aggravated assault while armed,*fn5 and several weapons offenses, all arising out of the shooting and wounding of Maurice E. McKay on the evening of November 5, 2001. On appeal, Ingram contends, inter alia, that the trial judge erred by refusing to admit into evidence proposed testimony regarding an oral jailhouse confession allegedly made by one Jameel Aleem to Ingram's trial counsel, Jane Carol Norman. Ingram asserted in the trial court, and maintains on appeal, that Aleem's confession was admissible as a statement against penal interest. Because the judge's ruling excluding testimony about Aleem's out-of-court statement rested in substantial part on a legal conclusion with which we are unable to agree, and because the judge failed to include in his calculus grand jury testimony by Aleem that we consider highly relevant, we remand the case to the trial court for further proceedings consistent with this opinion.
I. THE TRIAL COURT PROCEEDINGS
A. The events of November 5, 2001
The events which took place on the evening of the shooting were described at the trial by McKay, who was the principal witness for the prosecution, and by Ingram, who testified in his own behalf. Aleem also gave evidence about these events before the grand jury, but he was not a witness at the trial.*fn6 Based on the trial testimony of both McKay and Ingram, which was consistent with Aleem's testimony before the grand jury, it is undisputed that the three men were all friends*fn7 who, among other common activities, smoked marijuana together. On the evening of November 5, 2001, McKay, Ingram and Aleem, together with another friend, Alfred Montgomery, were in an alley near 46th Street, N.E., apparently smoking "weed."*fn8
McKay testified that Ingram, who had been walking ahead of him, eventually "drifted behind" McKay. Initially, McKay paid no attention to Ingram's changed location, but suddenly Ingram told McKay to "look to [his] left." When McKay did so, Ingram shot McKay in the back of the head. McKay testified that he fell to the ground and that Ingram continued to shoot at him while he (McKay) was lying in the alley. One of the bullets allegedly fired by Ingram when McKay was down struck McKay in the left leg.
According to McKay, the other three men all ran from the scene. McKay was bleeding profusely, but, notwithstanding his condition, he succeeded in "jumping a fence," and he knocked on the patio door of a local resident, Ms. Gail Sivels. Ms. Sivels called 911, and after the police arrived, McKay told Officer Isaac Jackson that "Darion" had shot him.*fn9 McKay later identified Ingram as his assailant from a photo array, and subsequently at trial. On cross-examination, however, McKay acknowledged that he told Aleem in early 2002, while both men were detained in the District of Columbia jail, that he did not know who shot him; he testified that he regarded Aleem "as a threat to me."
Taking the stand in his own defense, Ingram denied that he had shot McKay.
According to Ingram, the four men were all smoking marijuana and drinking Remy Martin Cognac, but McKay was the most "under the influence" and was "acting weird." Ingram testified that he and Montgomery were rolling marijuana "blunts" while McKay and Aleem were together a short distance away. Suddenly, he heard a shot. Montgomery pushed him to induce him to run, and the two men did so.
Ingram testified that, at the time of the offense, he did not realize that McKay had been shot, and he claimed that he did not learn that McKay was the victim of the shooting until McKay's cousin apprised Ingram of this fact three days later. Ingram admitted, however, that he did not turn around to see what had happened, that he did not call 911 or request an ambulance, and that he did not seek any assistance. Ingram also acknowledged that following his arrest, he told Detective Roy Crawford that he did not know anything about the shooting. Further, Ingram did not disclose to Detective Crawford that he (Ingram) was in the alley at the time McKay was shot.
Aleem was a difficult and inconsistent witness before the grand jury. Like Ingram, he claimed that when he heard gunshots he "just ran." Aleem stated that he went to his car, and sat in it "for a minute." He explained that "after all that I was trying to get my missile. That's what really went down." Aleem testified that he returned to the alley, and that when he arrived there unidentified people were "telling [him] some bullshit basically" and were accusing him (Aleem) of being responsible for the shooting:
You know, . . . it don't have nothing to do with this. . . . [W]ell it do but it don't, . . . what they said. What they said was . . . directed towards me . . . . . . .
Q: You said it was related to the shooting?
A: No, no. It was related to me.
Q: Was it related in any way to the shooting?
Q: . . . [W]e need to know what it was sir.
A: Trying to say I was busting at them, was I busting at them.
Q: Meaning [ ] that you shot at them?
A: Yeah. Was I shooting at them.
Q: Okay. And you didn't even have a gun with you in ...