Marvin Leslie Toolate v. Robert Borg

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

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…