Toolate v. Borg

• Decision Date: 22 September 1987
• Docket Number: No. 86-15074,86-15074
• Citation: 828 F.2d 571
• Parties: 23 Fed. R. Evid. Serv. 1202 Marvin Leslie TOOLATE, Petitioner-Appellant, v. Robert BORG, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 571

828 F.2d 571

23 Fed. R. Evid. Serv. 1202

Marvin Leslie TOOLATE, Petitioner-Appellant, v. Robert BORG, Respondent-Appellee.

No. 86-15074.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 14, 1987.

Decided Sept. 22, 1987.

Michael Satris, Bolinas, Cal., for petitioner-appellant.

David Salmon, San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, SNEED and TANG, Circuit Judges.

SNEED, Circuit Judge:

Marvin Toolate, convicted of murder in the first degree, petitions for habeas corpus on Confrontation Clause grounds. His codefendant Fraser testified at trial but refused to allow Toolate to cross-examine The federal district court, on collateral review, ruled that Toolate's confrontation rights had not been violated and, alternatively, that the alleged error was harmless. Although we find that there was a constitutional violation, we agree that it was harmless and therefore affirm.

him. The state trial court struck Fraser's testimony, instructing the jury to disregard it completely. The judge refused, however, to declare a mistrial.

I. FACTS AND PROCEEDINGS

Robert Daniel was found dead in his basement in November of 1978. He had wounds from a shotgun blast on various parts of his body and three bullet holes in his skull behind the ear. His house had been burglarized.

Toolate and Fraser were tried jointly for the crimes. Three months into the trial, the government having rested (its evidence will be discussed in detail below), Fraser took the stand in his own defense. He admitted having fired at Daniel once with a shotgun, but intimated that he did so in self-defense. It was Toolate, according to Fraser, who fired the series of bullets found in Daniel's skull.

At the court's request, the prosecutor began Fraser's cross-examination. After a day and a half of questioning, Fraser grew truculent and refused to answer further. Four times the trial court held Fraser in contempt, but to no effect. Toolate was never able to cross-examine him.

The judge denied Toolate's motion for a mistrial. Instead he struck Fraser's testimony and instructed the jury at length to disregard it. Toolate (as well as Fraser) was convicted of first-degree murder and various theft offenses. He was sentenced to life in prison without possibility of parole. The state appellate courts denied relief.

II. ISSUES

Petitioning for habeas corpus, Toolate has one allegation of reversible error: that instructing the jury to disregard Fraser's testimony was inadequate under the Confrontation Clause. In a series of cases beginning with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court has held that an instruction to disregard a codefendant's out-of-court confession is constitutionally insufficient where the codefendant does not testify and therefore cannot be cross-examined. The unusual facts before us present the question, which we believe to be of first impression, whether Bruton applies to a codefendant's in-court confession where the codefendant has testified but refuses to be cross-examined.

Although the issue is not free from doubt, we conclude that there was Bruton error at Toolate's trial. After discussing our reasons for so holding below, we go on to decide whether that error was prejudicial.

III. DISCUSSION

A. Was the instruction sufficient?

Toolate without doubt had a constitutional right to cross-examine Fraser. See Brown v. United States, 56 F.2d 997, 999-1000 (9th Cir.1932) (codefendant who testifies in his own behalf and incriminates the defendant becomes a witness "against" him for Confrontation Clause purposes). Prosecutorial cross-examination of a codefendant does not satisfy the defendant's confrontation rights. See United States v. Zambrano, 421 F.2d 761, 762-63 (3d Cir.1970); Parker v. United States, 404 F.2d 1193, 1196-97 (9th Cir.1968), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969).

Ordinarily, when a testifying witness cannot or will not be cross-examined, "the appropriate relief ... is to strike the direct testimony of the witness" and to instruct the jury to disregard it. United States v. Lyons, 703 F.2d 815, 819 (5th Cir.1983); see United States v. Malsom, 779 F.2d 1228, 1239 (7th Cir.1985) (witness died before cross-examination) ("We can perceive no Sixth Amendment violation where the district court struck [the witness's] testimony and took pains to instruct the jury to disregard it."); United States v. Seifert, 648 F.2d 557, 561 (9th Cir.1980). ¹ In a very few cases, however, courts have not been content merely to strike.

If the direct testimony is especially prejudicial ..., we have held this remedy inadequate. On the premise that the jury could not follow the instruction to disregard the witness' testimony, we have then required a mistrial.

Lyons, 703 F.2d at 819; see United States v. Malinsky, 153 F.Supp. 321, 323-24 (S.D.N.Y.1957). As we noted earlier, Toolate relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), to argue that a mistrial was required here.

In Bruton, the Supreme Court created an exception to the general presumption that juries will follow an instruction to disregard evidence.

[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.

Id. at 135-36, 88 S.Ct. at 1627-28 (citations omitted). Therefore, the Court held, a new trial must be granted if such a confession is heard by the jury and the defendant does not have an opportunity to cross-examine. ² Id. at 137, 88 S.Ct. at 1628.

The Supreme Court has recently emphasized that if a codefendant's uncross-examined confession goes to the jury and directly incriminates the defendant, courts are not to evaluate its prejudicial effect on a case-by-case basis, but to hold under Bruton that an instruction to disregard is invariably deficient. Cruz v. New York, --- U.S. ----, ----, 107 S.Ct. 1714, 1718-19, 95 L.Ed.2d 162 (1987). It is undisputed that Fraser's uncross-examined testimony directly incriminated Toolate. There remain a number of grounds on which Bruton might be distinguished, but we find none of them ultimately persuasive.

First, the government argues that Fraser's testimony was not a "confession," but an attempt to shift the blame to Toolate. This is nonsense. Most codefendant confessions are blame-shifting. Fraser admitted having shot Daniel. Had Fraser made the identical statements to the police, they would clearly have been Bruton material at trial.

Second, Bruton involved a non-testifying defendant's out-of-court confession. We know of no case applying Bruton to a codefendant's in-court confession. But that is because a testifying codefendant will ordinarily be fully cross-examined. Hence this difference offers little distinction when, as here, the testifying codefendant cannot be cross-examined. In-court confessions are no less credible or powerful as a rule than out-of-court ones. The contrary is probably true. At a subsequent trial of Toolate (if there were one), introducing a transcript of Fraser's testimony would clearly violate Bruton unless cross-examination were possible. To treat differently the original testimony, equally unavailable for Toolate's cross-examination, would be illogical. That the jury observed Fraser's demeanor and heard the prosecutor's cross-examination is significant, but it did not satisfy Toolate's confrontation rights. See Zambrano, 421 F.2d at 762-63; Parker, 404 F.2d at 1196-97.

Third, as the district court pointed out, in Bruton the jury was called upon to consider the confession against the codefendant but to ignore it as to the defendant. This point has more relevance: perhaps juries can be expected to follow their instruction when asked to disregard the confession completely. However, the one court apparently to have addressed this issue did not agree. See Simmons v. United States, 440 F.2d 890, 891-92 (7th Cir.1971) (Bruton rule applied even though codefendant had pleaded guilty and was no longer before jury by the time the trial ended). We think Simmons was correct. The Bruton exception turned on the likely "devastating" effect of a codefendant's confession, not on the inconsistent treatment that the jury was supposed to accord it. See Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28. ³

Finally, the government attempts to evade the Bruton rule in the name of the survival of joint trials. If Bruton is applied here, the argument goes, joint trials will become impossible: one defendant could always procure a mistrial for the other by testifying in his own behalf and then refusing to be cross-examined. This argument raises a more pressing concern. Its persuasiveness, however, is largely superficial.

Codefendants already have the opportunity to sabotage each other's trial through unethical tactics. For example, if one codefendant comments prejudicially on another's refusal to testify, the latter's conviction must ordinarily be reversed. See United States v. Patterson, 819 F.2d 1495, 1506 (9th Cir.1987). The result is the same if one codefendant calls the other as a witness, requiring him to invoke his Fifth Amendment privilege in the jury's presence. E.g., United States v. Kaplan, 576 F.2d 598, 600 (5th Cir.1978), cert. denied, 439 U.S. 1078, 99 S.Ct. 858, 59 L.Ed.2d 47 (1979). One codefendant could also produce a mistrial for another by testifying to irrelevant, highly prejudicial matter, such as the latter's prior criminal record. These dangers are inherent in...