Appeals from the Superior Court of the District of Columbia (CF2-27580-07, CF3-27842-07) (Hon. James E. Boasberg, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Before GLICKMAN and OBERLY, Associate Judges, and NEBEKER, Senior Judge.
Appellants, Neal King and Marquita King,*fn1 were convicted of charges that arose from the shooting of Anthony Jackson. Neal King contends the trial court erred in admitting Jackson's statement to a police officer at the crime scene that he knew it was Neal who had shot him "because he tried to rob my brother." Marquita King argues that the court abused its discretion in denying her severance motion and that there was insufficient evidence to support her conviction on one count of felony threats. We affirm appellants' convictions.
A. Attempted Robbery and Shooting
Neal King was convicted of assault with intent to kill while armed and related gun charges. The government presented evidence that on November 24, 2007, Kevin Simon, who was Anthony Jackson's older brother, was walking through the Wingate apartment complex on his way home when he saw a few young men he knew. One of them was Neal King. After they exchanged greetings, Simon walked on, but Neal caught up with him and told Simon he had some clothing he wanted to sell to him. Simon testified that Neal led him to a nearby vacant apartment, supposedly to show him the goods. Once there, however, Neal pulled out a handgun, pointed it at Simon, and told him to empty his pockets. Fortunately for Simon, his friend Troy Souder happened to appear and told Neal to stop. Neal put the gun down without taking any of Simon's property, and Simon left and walked home. When he arrived there, he told his brother Jackson that Neal had just tried to rob him. Jackson, who also was acquainted with Neal, responded that he "was going to go down there and talk to [Neal]." Simon did not report the attempted robbery to the police at that time; he first told them about it approximately one month later, when they interviewed him about the shooting of his brother.*fn2
Jackson testified that after his brother told him Neal had tried to rob him, he immediately went to the Wingate apartment complex to look for Neal. Jackson found him standing with a few other people and confronted him about having "mess[ed] with" Simon. Neal responded angrily and told Jackson to "get . . . to the cut" (a nearby portion of the courtyard). Although Jackson could see a gun tucked into Neal's waistband under his shirt, he accompanied Neal alone to the cut. As the two stood facing each other, Jackson related, Neal pulled out the gun and shot him several times.
The first person to come to Jackson's aid was Marcus Clark, the residential service manager at the Wingate. Clark testified that he heard the gunshots, he looked out from his office, and saw several young men running away. The only one of them he recognized was Neal. He described Neal as running with one arm pressed up against his stomach or waistband area. Clark testified that when he reached Jackson, Jackson said he "was about to die" and "[didn't] know why Neal shot him."
Officer Milton Gilchrist, the first police officer on the scene, arrived to find Clark administering first aid to Jackson, who was lying on the ground. Gilchrist testified that he asked Jackson who shot him, and Jackson responded, "Neal." Jackson was "wincing in pain" and told Gilchrist "that it hurt." Gilchrist asked Jackson what Neal's last name was, but Jackson said he did not know.
After Gilchrist gave this testimony, the prosecutor requested a bench conference, during which he told the court that he wished to elicit from the officer that Jackson also said, "He [i.e., the shooter] tried to rob my brother." The prosecutor stated he "particularly" wanted to introduce this testimony to undercut the defense theory that Jackson and Simon had fabricated the story of the attempted robbery. The court responded that it would permit Gilchrist to testify to the statement because it was "part of the prior identification and puts the statements in context." Neal's counsel objected "for the record," but he did not articulate any basis for excluding the statement or request a limiting instruction.
Gilchrist then testified that he asked Jackson how he knew it was Neal who shot him, and Jackson responded, "Because he tried to rob my brother." When Jackson was asked about this statement at trial, he did not remember having made it or even having spoken to Gilchrist.
Taking the stand in his own defense, Neal testified that on the day of the shooting, he had stopped to chat with a group of young men at the Wingate, including Troy Souder, when Jackson approached the group. Someone in the group (not Neal) insulted Jackson. Jackson became angry and questioned Neal as to why he was messing "with his man." Neal, who at trial denied having robbed Simon, responded that he did not know what Jackson was talking about. Unable to mollify Jackson, Neal invited him to "step in the cut" for what he thought would be a fistfight. The two went to the cut, followed by others in the group, who were "egging [them] on" and "amping up the situation." Neal testified that he was unarmed. He and Jackson had their fists up when Jackson moved like he was unzipping his jacket or reaching for something. The next thing Neal knew, he heard shots. He turned around to see Troy Souder shooting at Jackson. Neal fled the scene.
The government called Souder to the stand in its rebuttal case. He denied shooting Jackson or even having been at the Wingate at the time of the shooting. Earlier that day, though, Souder said, he was at a party in a vacant apartment when Neal and Simon arrived. Simon was Souder's friend. When he heard Neal tell Simon to "give him everything in his pockets" and saw Neal wave a gun at Simon, Souder intervened, telling Neal, "I ain't gonna let it go down" because "that's my ...