Appeal from the Superior Court of the District of Columbia (No. F-7573-02) (Hon. Zinora Mitchell-Rankin, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and SCHWELB, Senior Judge.
Appellant Antwan Geter was tried before a jury and convicted of unlawful entry and attempted theft. His appeal challenges the use at trial of his co-defendant's statement to police on the night of their arrest. In accordance with binding precedent, we hold that the trial judge committed reversible error by allowing the prosecutor to cross-examine the co-defendant about the parts of his police statement that inculpated appellant by name.
Appellant and his cousin, Toussainte Geter, were arrested on the street outside Thurgood Marshall Elementary School at around 7:00 p.m. on a Sunday evening in November by police responding to a burglar alarm there. Three other suspects, all juveniles, were apprehended inside the school. After his arrest, Toussainte Geter allegedly made an oral statement to Officer John Hamer implicating appellant as a participant in the break-in. As summarized in the arrest report, Toussainte Geter's statement was as follows:
[E]arlier that evening, his cousin Defendant Antwan Geter, Jr. and three of his friends were planning to break into the school and see what they could steal. Defendant Toussainte Geter stated that he left the school to go to the store. When he arrived back at the school, the others had already entered into the school. Defendant Toussainte Geter stated that he only entered the school to look for his cousin.
Anticipating that the admission of Toussainte Geter's statement in the government's case-in-chief would violate his Sixth Amendment right of confrontation, see Bruton v. United States, 391 U.S. 123 (1968), appellant moved to sever his trial from that of his cousin. The government opposed severance, and the judge denied it, on the ground that Toussainte Geter's statement could be redacted so as to eliminate all mention of appellant by name. The judge approved several redactions and ultimately permitted Officer Hamer to testify at trial that Toussainte Geter had learned of a plan others had made to see if they could break into the school to see what they could steal, at which time Mr. Toussainte Geter stated he left and went to the store. Upon his arrival back to the school, the others had already broken in and he had gone down to go into the school to retrieve one of the people out of the school.
(The government relied on other evidence, which we need not recount in detail, to link appellant with the break-in.*fn1
After the prosecution rested, Toussainte Geter took the stand in his defense to claim that his presence in the vicinity of the school was innocent. Denying that he had made the statement to which Officer Hamer had testified, Toussainte Geter insisted that he said he "wasn't in the school," and nothing more, when the officer questioned him.*fn2 On cross-examination, the prosecutor pressed Toussainte Geter to admit having told Officer Hamer that appellant, his own cousin, participated in planning the unlawful entry, and that he went into the school to look for appellant:
Q: Did you make any statement to him that you knew of a plan involving Antwan Geter to enter into the school on that day November 24th?
A: No, I didn't make no plan.
Q: Didn't you say, did you tell that officer at that time that you entered the school to look for ...