Appeal from the Superior Court of the District of Columbia (FEL1159-02), (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Argued September 16, 2008
Before REID, GLICKMAN, and KRAMER, Associate Judges.
We previously remanded this case for further proceedings regarding a contention by appellant, Darion J. Ingram, that the trial court erred by failing to admit into evidence an alleged statement against penal interest made by a third party, Jameel Aleem. See Ingram v. United States, 885 A.2d 257 (D.C. 2005) (Ingram I). Following an evidentiary hearing on remand, the trial court made findings of fact and conclusions of law, and again excluded Mr. Aleem's statement to Mr. Ingram's trial counsel confessing that he shot the victim. Mr. Ingram once again challenges the trial court's exclusion of Mr. Aleem's statement. We affirm the judgment of the trial court.
We need not repeat the entire factual summary of the events surrounding the shooting and wounding of Maurice E. McKay on November 5, 2001, and Mr. Ingram's July 2002 trial. See Ingram I., 885 A.2dat 261-63. The critical aspect of the trial centered on the trial judge's ruling that Mr. Aleem's confession to the shooting of Mr. McKay could not be admitted into evidence because Mr. Aleem "was an unreliable witness whose account [of the shooting] should not be received in evidence unless [Mr.] Aleem was subject to cross-examination by the government"; and that Mr. Aleem's statement, as proffered by defense counsel, did not "have sufficient indicia of reliability to be allowed to come into evidence as a statement of penal interest under Laumer v. United States[, 409 A.2d 190 (D.C. 1979) (en banc)]. . . ." Id.at 261. Prior to our decision in Ingram I, we "remanded the record to the trial court for additional findings relating to [Mr.] Aleem's grand jury testimony and for any clarification of [the court's] rulings . . . that the trial judge wished to make." Id.at 262. After receiving the trial court's April 12, 2005 supplemental findings, we subsequently issued our decision in Ingram I.
In Ingram I, we ultimately concluded "that the question of whether [Mr.] Aleem's confession satisfies the standard of trustworthiness adopted by this court in Laumer is a close one and is difficult to resolve on the present record."*fn1 Id.at 268. We further stated that the "proper disposition may turn on the existence vel non of a motive for [Mr.] Aleem to shoot or kill [Mr.] McKay and on the application to the record of the legal principles set forth [in Ingram I]." Id. Consequently, we remanded the case to the trial court so that it could hear the testimony of defense counsel concerning Mr. Aleem's alleged statement against penal interest, and any other evidence relevant to that issue. We indicated that following the evidentiary hearing, the trial court should decide whether to allow the jury to hear Mr. Aleem's statement, and if so, to order a new trial. See also id.at 268 n.26.
During the remand hearing, Jane Norman, Mr. Ingram's trial counsel, testified for the defense. The trial judge summarized her testimony in his factual findings on remand. Ms. Norman "had five meetings with Mr. Aleem and, in a sixth meeting, which she did not attend, her investigator took a signed statement from Mr. Aleem, given 'under penalty of perjury.'" However, Ms. Norman "cannot locate her file, there are no extant notes of her conversations with Mr. Aleem, and she cannot produce a copy of Mr. Aleem's signed statement taken by her investigator." In all but one of the conversations with Ms. Norman, and in his signed statement to the investigator, Mr. Aleem stated that Mr. McKay was "shot by a rival group from the neighborhood and not by [Mr.] Ingram." In that one conversation, Mr. Aleem maintained that Mr. McKay was shot by a rival group, but he "used different names for the persons in the rival group who supposedly shot [Mr.] McKay," and he "dismissed [Ms. Norman's] misgivings . . . and told her to 'just use those [the original] names then.'" Because of Mr. Aleem's "eager[ness] to testify to help [Mr. Ingram]," Ms. Norman "became suspicious and accused [Mr.] Aleem of being some sort of 'all purpose witness,' which he denied." When Ms. Norman "asked [Mr.] Aleem directly whether he was the one who shot [Mr. McKay] . . ., [he] responded: 'Are you kidding? If I had shot [Mr. McKay], he wouldn't still be alive. . . . Some fool shot him at point blank range and missed. I would never miss."
Ultimately, Ms. Norman decided not to call Mr. Aleem as a defense witness during Mr. Ingram's trial. When she relayed this decision to Mr. Aleem when she visited the jail to prepare Mr. Ingram for trial, Mr. Aleem "put his head in his hands, made a sigh that sounded like crying, and said, as Ms. Norman recalls it from memory: 'I'm the one who wasted Moe [Mr. McKay], and my only regret is I didn't finish him off, but I'm going to take care of that when I get out.'" Mr. Aleem added: "And don't worry about the trial. I'm going to have anyone who testifies against [Mr. Ingram] . . . killed and their families." When Ms. Norman inquired about Mr. Aleem's motive for allegedly shooting Mr. McKay, "he explained that he (Aleem) was the leader of a gang of 'youngins' whose members did what he said and that [Mr.] McKay was a member who had been causing him trouble by not doing what he was told and by committing a daytime robbery, which brought the group unwanted attention." Ms. Norman believed that Mr. Aleem was telling the truth when he confessed to the shooting of Mr. McKay because "[h]e looked her in the eye when he said it, and he seemed more serious than he had appeared in any prior conversation." But Ms. Norman became "frightened" by his threats and "never spoke to Mr. Aleem again." She thought Mr. Aleem "trusted" her because they "had a good rapport" and "got along real well"; and he didn't think she "would tell anybody" about his confession. Findings of Fact and Conclusions of Law on Remand, May 16, 2006, at 3-5 ("Findings on Remand").
Detective Ray Anthony Crawford of the Metropolitan Police Department, testified for the government. The trial judge found that he was one of the lead detectives in the case involving the shooting of Mr. McKay. According to him, Mr. McKay identified Mr. Aleem as a person who was on the scene at the time of the shooting and "who witnessed [Mr.] Ingram shoot him[, that is, Mr. McKay]." During Detective Crawford's investigation, Mr. Aleem was incarcerated in connection with another case. Detective Crawford attempted to interview him about Mr. McKay's shooting on two occasions, and on the third time, he decided to put Mr. Aleem before the grand jury because of his hostility.*fn2 The trial judge described Mr. Aleem's grand jury testimony as "evasive" and "flatly at odds with his final unsworn version, in which he claimed to Ms. Norman that he was the one who shot [Mr.] McKay." Furthermore, the trial judge determined that a summer 2002 mental health evaluation of Mr. Aleem revealed that although he was "competent," he had "an extreme personality disorder, including, among other features, 'deceitfulness, or conning others for personal profit or pleasure.'" Moreover, Mr. Aleem had a "history of drug abuse" (heroin, powder cocaine, PCP and hallucinogens), and "[b]etween May 6 and May 20, 2002, [he] . . . tested positive for PCP . . . five times, as well as marijuana (three times) and opiates (one time)." Findings on Remand, at 6-7.
At the remand hearing, counsel for Mr. Ingram moved for a new trial on the ground that in failing to turn over the April 2002 grand jury transcripts of Mr. Aleem and another man, Albert Montgomery, before Mr. Ingram's July 2002 trial, the government had violated Brady v. Maryland, 373 U.S. 83 (1963). Mr. Aleem appeared before the grand jury on April 11, 2002. In response to a question, Mr. Aleem told the grand jury that he "believe[d]" he was aware that someone was shot in the 4500 block of Dix Street, in the Northeast quadrant of the District, in November 2001. He "believe[d]" he was "hanging out with [Mr. Ingram] that night." Others were present, including "Jason or something like [that]." They were smoking. When asked whether he was "familiar with the fact that [Mr. McKay] was shot in the middle of [an] alley, the back alley of Dix Street," he responded: "I don't know where he got shot at really." Mr. Aleem did not remember where he was when he heard shots, or who was with him, but he remembered that he "started running." Mr. McKay "might have been" next to Mr. Aleem at the time of the shooting, but Mr. Aleem did not know. He "believe[d]" he saw Mr. Ingram when he heard the shots, but there "was a lot of movement going on, plus [he] was smoking," so he did not "really remember what went down." He just remembered hearing the shots and running to his car. He got into his car and sat there "for a minute." He did not know who shot Mr. McKay. He was "confused" and his "head was just going everywhere." He was "trying to get [his] missile [that is, his gun,] to see what happened, see what was up," but he claimed that he did not get his gun.*fn3 After composing himself, Mr. Aleem walked back to the alley. He was "high." Some unidentified people were "[t]rying to say [Mr. Aleem] was busting at them," and they asked if he "[w]as shooting at them?" Mr. Aleem told the grand jury that he didn't have anything to do with the shooting.
Mr. Montgomery appeared before the grand jury on April 10 and 11, 2002. On the night of the November 2001 shooting of Mr. McKay, Mr. Montgomery was drinking and hanging out with others, including Jason, Nic, and Jabrie, but not Mr. McKay or Mr. Ingram.
Mr. Montgomery was located at the top of the alley in the 4500 block of Dix Street, Northeast, by a vacant house. He saw Mr. McKay come into the alley with two other people, Mr. Ingram and "Snags."*fn4 Later, when Mr. Montgomery heard shots fired in the alley, Mr. Ingram was "a good 80 feet from [him]," and "Snags" also was behind him. At the sound of the first shot, which came from "the middle of the alley . . . in the dark part," Mr. Montgomery turned and glanced back. He saw the victim fall, but he did not see Mr. McKay. As Mr. Montgomery put it, "I wasn't that close to actually see that." He began to run and heard two more shots. Eventually he stopped running and around thirty to forty-five minutes later, he heard police and ambulance sirens. About one hour later, as people began to gather in the alley, he saw Mr. Ingram and noticed that he had on a different shirt. Mr. Montgomery did not tell police officers or detectives, or anyone else about the shooting because he "didn't know [any]thing about it [himself]." He did not see the shooting; no one told him who shot Mr. McKay; and he ...