Ray Agard v. Leonard Portuondo, Superintendent of Fishkill Correctional Facility

by employees engaged rule violations himself, readily

such violations we conclude pe- determination that the Commission’s prove

titioner failed to the affirmative de- employee

fense of “unforeseeable miscon- supported by

duct” is substantial evidence.

III.

In conclusion:

(1) Petitioner waived its con-

cerning knowledge its of the “violative condi-

tion” because it to raise the failed issue its

petition discretionary to the Commission for

review.

(2) The claim employee of “unforeseeable

misconduct” is an affirmative defense proved by employer

must be after the

Secretary prima, has made out a case of facie Occupational Safety a violation of the

Health Act.

(3) The Commission’s determination that

petitioner adequately prove failed the de- employee

fense of “unforeseeable miscon- supported by

duct” is substantial evidence on

the record considered as a whole.

Accordingly, petition for review of the

decision of the Commission is denied.

Ray AGARD, Petitioner-Appellant, PORTUONDO, Superintendent

Leonard Facility,

of Fishkill Correctional

Respondent-Appellee.

No. Docket 96-2281. Appeals,

United States Court of

Second Circuit.

Argued Oct. 1996. July

Decided Ness, City,

Beverly York New Van Petitioner-Appellant. Abbot, Assistant District cate his to meet Attor- the state’s evi-

Ellen C. Gardens, County, Kew Queens NY ney, point. dence. We find no error on the first (Richard Brown, Attorney, erroneous, A. District Steven The ruling, second while does not Forshaw, A. and Robin Assistant J. Chananie constitute harmful constitutional error. counsel), Attorneys, Respon- District ruling point, The trial court’s the last dent-Appellee. however, infringes upon Agard’s constitution- rights Fifth, al guaranteed Sixth OAKES, GRAAFEILAND, VAN Before: Amendments, and Fourteenth and consti- WINTER, Judges. and Circuit tutes harmful error. We therefore reverse the district court and remand. OAKES, Judge: Senior Circuit appeals Appellant Ray Agard from the de- corpus nial of the writ of habeas dated March 21, 1996, March and entered Facts Court for United States District the Eastern Agard met Nessa Winder and Breda Kee- York, Raggi, Reena Judge. of New District action, gan, complainants in the criminal 25, February on Petitioner was convicted night at a Manhattan and club Friday, bar 1991, Supreme in the Court of the State of 27, April testimony 1990. Petitioner’s and York, Queens County, Justice Arthur New J. that of Adolph his friend and defense witness Cooperman presiding, degree of first sodomy Kiah largely though entirely squares — — degree weapons of third pos- and two counts story complainants’ about the events session. He was sentenced to concurrent following The weekend. witnesses 3]é years’ years’ terms of 10 to 20 and to 7 agree Agard and Winder started a sexu- imprisonment. Following the December al relationship in wee Saturday hours of weapons posses- dismissal of one morning; spent part Saturday afternoon counts affirmance on sion and the other Keegan Agard’s the beach with and room- counts, People Agard, 199 A.D.2d Freddy; mate Agard’s and returned to (2d 1993), Dep’t 606 N.Y.S.2d apartment nap, stayed for a but until morn- Agard’s application appeal for leave to however, ing. People petitioner, The and denied, People Judge Ciparick, Agard, presented conflicting stories about the extent N.Y.2d 613 N.Y.S.2d 635 N.E.2d relationship, of that sexual as well as what (1994). Agard petitioned then for the occurred week later on the morning of pursuant corpus

writ habeas to 28 U.S.C. Sunday, May People alleged 1990. The § peti- 2254. The court district denied the and, petitioner that the committed assault tion, rejecting Agard’s claims that his Sixth violence, using eight rape threats and acts of rights Fourteenth and Amendment had been sodomy against and forcible Agard, Winder. trial, granted violated at but him a certificate by contrast, testified he and Winder cause, probable permitting him pursue up night town, woke after a out on the en- appeal. Transcript of Civil Cause for gaged vaginal in consensual intercourse and Conference/Hearing at Agard Status hours, asleep then fell back for several when (sic), (E.D.N.Y. Portundo No. CV-95-2239 quarrel erupted reawakening a over the 1996) (hereafter March “District Court during lateness of the hour which she Transcript”). Agard appeals now to this scratched he struck lip and her. court, asserting the trial court erred 1) refusing permit defense counsel People’s A. The Case question the prior victim about her sexual 2) history; limiting expert’s People’s testimo- consisted of case ny regarding police required investigators, experts the amount force medical sustain sodomy; Keegan rectal trauma and and Winder. At the time of 3) prosecution and permitting imply Keegan Winder were twenty- both closing women, arguments petitioner, by year eight virtue three old and friends of being present throughout years. They in the courtroom each moved to the United trial, gained unique opportunity States from fabri- Ireland and soon be roommates, apart Saturday, Agard the women several sharing Brooklyn called came evening they again if meet people. times to see wanted to ment with two On 27th, Keegan and went to April Winder After he said that he the Cavaeanum. would Cavaeanum, a bar lower Manhattan. again, the women called him not call Agard approaching the recalled Winder at the agreed to meet club. buy He offering to drinks.

women and them Agard, women arrived late and found together “friendly5’ and the three went them, Freddy. “short” with who was the club’s dance area. downstairs to for several hours. The four drank talked apartment later back to his invited Winder was also used at least some mem- Cocaine recalled, they accepted. As she she party, including Winder bers of the Winder. “very along well.” Before getting eventually she became drunk testified that telephone departed, Agard gave Keegan the thing out: the she and blacked last recalled apartment could call to to his so she number evening friend Agard’s from that was Kiah safely. home say made it she had plans go arriving group making to to and top a house in Agard shared the floor of Winder, Keegan another club. testified Queens landla- three roommates. Their with tired, “walking and still although drunk ground-floor apartment. dy occupied the talking” even after time of her mem- to roommate Agard’s introduced Winder was she, Keegan explained that Win- ory lapse. had Freddy. Agard, who earlier remarked Kiah, der, Freddy, along with Agard, riding the sub- gun when he carried ride, who left for two other women needed way, handgun Winder automatic showed way, club in car. On the the other Kiah’s kept They “blue” in his closet. then watched seat, Agard’s lap in the'front Winder sat mainly depicting anal intercourse. movies physically not affectionate but was because in- Agard “mentioning” anal Winder recalled asleep. she was “motioning way” later tercourse and Only passengers the two women al- sex, two she told night when the but closing into the second club which was “jus’t lowed him not “into said that she was it” and group party up when the arrived. they no.” testified that did not en- Winder neighbor- moved on to bar in another five gage day, intercourse on that but did they Keegan where continued to drink. hood engage vaginal oral sex in consensual asleep or falling that Winder was they recalls falling asleep. morning, before asleep, and did not even drink her drink. again. had intercourse in morn- between 4:00 and 4:30 the Sometime trip to a beach on Island After a Staten Keegan ing, party left the bar. recalls Freddy Keegan, Agard with and Winder apartment to Brook- wanting to return her they apartment Agard’s returned to where Winder, suggestion Agard’s but lyn with spent night. that she Winder testified apartment. group returned his hoping midnight, to return to awoke at Agard had Cavaeanum where she and Freddy buy beer while Kiah and left Keegan, planned Keegan to meet but could apartment. women into his Agard let the by phone Agard did not be reached Keegan Agard’s into They settled bedroom. go again. Agard want to out After attempt- immediately asleep, that Winder fell testified sex, explained ed to initiate Winder Keegan fully-clothed, on bed. When expecting boyfriend from she was because cab, call a that she wanted to indicated England, go “we on like she felt shouldn’t responded “he had sent his Agard they this.” testified that did Winder [they] could and the least do friends for beer engage night. relations in sexual gone stay have a beer after he had According to Agard of trouble.” Kee- following week made several that amount verbally abusive and Keegan gan, Agard He became attempts to contact and Winder. “Gaelic,” told her Thursday threatening. He called her suggested that he have dinner on house,” “monkey night her ass out Keegan, job get whose was located in,” face going Keegan [hér] not home “he was to smash Agard’s, near but said up.” fuck her to “shut the arrange when called her to the date. On and ordered point over to a chest of Agard went drawers that at some He then had asked her for gun. and took out a After against wall “a fuck” and she said Agard “no.” She asked handle, cartridge into clicking Agard cab, to call her a then tried do so herself. head, against Keegan’s say- placed gun put phone He began down and to “curse you give three ing, going “I’m seconds to [her],” saying good she was a “no ten-cent up.” Agard put gun then back shut into “planned whore” and that she had this.” He Keegan the drawer and continued to “abuse” Keegan, saying also “eurs[ed]” she had Freddy until Kiah and returned with beer. landlady, awakened the and called the wom- recollection, Agard, by Keegan’s told them good en “no white trash.” get bitch out of the house or “to he was began get Winder Agard dressed and ” hurt going to her.... up slapped came from behind her and her Keegan Agard asked to follow her into the face. He against tried back her Freddy’s so could discuss what room wall, but she moved to the other side of the making They him so mad. moved into bed where he kicked her. He told her she Agard the other room where continued to choices, had “two either I things [Winder] do her, saying threaten that she would “never way or I thing would like the other less.” go alive” and that she leave the house could “put penis He then came over to her and my you (Keegan) give “if both friends head.” pulled into her mouth” and on her hair. She mind, change his continued to order- pulled away him, saying from she “couldn’t , ing Keegan telling to leave and then her to anymore.” do it Agard continued to insult stay Freddy’s Keegan pleaded room. to repeated Winder. When she that she could Winder, see but when she was allowed into wanted, not do what he gun he took his from the bedroom could not be Winder awakened. began the drawer and “putting cartridges kitchen, Returning Keegan to Kiah found it,” point into at which “okay” Winder said Although preparing initially to leave. reluc- and allowed him to sodomy. resume the oral tant, Keegan eventually decided to leave with go Wihder said that she “needed to Kiah. out the Agard’s As she headed door of bathroom,” Agard stairs, permitted and apartment her to Keegan and down initially in, leave. After locking by Agard, grabbed brushed who turned herself she and Freddy’s fled the bathroom Keegan screamed, her the neck. for around bedroom and grabbed cursing Freddy where she go, getting begged he let her her for him in and him landlady. help. Keegan bring Freddy trouble with his She able to testified with room, Kiah during trip Agard’s Freddy she told her into to Brook- but left when lyn Agard had Recalling Agard’s threatened her with a ordered out. comment gun. landlady, screamed, about the Winder caus- ing punch him to her three times in the face. Keegan home at arrived about 6:00 in the Agard threats, continued the verbal ordered morning and went to bed. At 9:00 a.m. she leave, Winder to but told her to “make [him] Agard’s apartment speak called with Win- “managed come first.” She to scratch his der, phone but he answered the hung up. and lip,” but could not injury see her scratch try again She did not p.m., until 1:00 at which produced. He threatened her first time she was told Winder Agard had left. bottle, with a holding beer it above her head immediately Keegan called back to tell her ready ifas to strike. When she still refused how mad he was at her for having awakened sex, engage gun he retrieved landlady, and to threaten her that he head, put it saying to her goodbye.” “[t]his again days would call in a few to let her know point, At agreed comply Winder major whether fucking problem.” had “a his demands. Winder testified that she awoke at 9:30 a.m., wearing only “vest,”1 her unable to She asked to return to the for a bathroom was, got refused, remember how she where she but in drink of water. He brought but her get rush to expect- home because she was a beer for her thirst. Agard went to the ing English her himself, friend. She remembered again and Winder fled to bathroom 1. It is not clear from the record what Winder meant “vest.” her, he recovered .45 caliber automatic followed where Petitioner Freddy’s bedroom. magazines containing two Freddy’s carrying handgun and up off bed and picking her day, Agard to his After his arrest the same hair” back shells. head and “by her bedroom, gun, kill that he then later he first denied had where threatened own real, having it but it was not admitted to said her. work, belonged to a friend. As to did not while raped and sodomized Winder Agard crimes, Agard equivocate: he the sex did not allowing her to buttocks before slapping her with Win- stated that he had consensual sex to his bathroom. She returned return to the der, they got into that she fight, making further efforts bedroom without he face.” scratched him and “mushed her flee, anal acts of and he committed additional sodomy, sodomy, rape. Winder oral B. The Case Defense’s escape, feigned in an but a seizure effort normality,” he she “resumed soon as complain- much Agard corroborated raped again. her about after ants’ account the first weekend story, however, departed His they met. apart- Finally, Agard’s landlady called following respects: in the from Winder’s twice, allowing opportunity Winder ment together, they first night that on their said to take then called a taxi dress. consensual, intercourse, us- engaged in Brooklyn down- her and escorted her back lubricants, in con- ing they engaged stairs, police” saying dare call the “[d]on’t Saturday night. intercourse sensual got if threatening her she Winder did. Agard also testified that found Winder cab, go into but far because she did gun in the closet when she borrowed his dropped money. her off no driver bathrobe, and that she on the holster. tried apartment street down the eventually phone Kee- where she was able discrepancies Agard’s and between her, gan. Keegan hid until came Winder complainants’ pronounced stories became police and women went to the sta- the two respect to the events of the second with tion. Agard during the weekend. testified nightclub, Doctor Karimi ex- was That afternoon Ardeshir drive to the second Winder Hospital. only fondling He but him kissing at Elmhurst not awake and amined Winder lap trau- any abnormality signs did sat on his in the front seat not see as she vagina Keegan ma or anus. Dr. Karimi recalled that had in Winder’s car. He also Queens, samples for a kit from Winder’s to his home in but took Vitullo wanted to return mouth, testing anus. had had no such reservations. vagina, and Later that Winder only Lewis that Detective Robert determined Agard, “loud” According Keegan was positive sperma- sample was vaginal go group her desire to home when about tozoa. Queens. Agard apartment arrived at his 7, 1990, day, May and The next Winder “agitated” that as he escorted his testified message on the Keegan following found the car, land- they passed Kiah’s his guest out to apart- answering machine their shared Keegan “upset” noise lady was about the who ment: Agard to his room making. returned was sleep for. next to Winder. message know who and went to his bed

You will this a.m. this entire about 6:00 careful consideration of It was After situation, my golden it was fault. I was a later, Agard hours and Winder Three say thing The I can do is asshole. and, awoke, according Agard, had volun- it. sorry I’m and that’s I’ll never bother again. falling asleep tary vaginal sex before you again. safely peacefully. Live and sometime He testified reawakened Goodbye. p.m., noon and 1:00 and that Winder between Agard’s At women voice trial both identified concerned “upset,” hyper,” “kind of tape. on the to kill her. boyfriend going her her, 8, 1990, he her from Trying approached May Philip quiet

On Giardina Detective She home took hold of her shoulders. Agard’s a search behind and executed warrant him, taking hold of she struggle during and smacked his did not turned scratching incident; this, asserted, him lip on the inside of counsel lower Reflexively, palm “opened he used the history the door” to sexual mouth. testimo- his away, push “mush[ing]” ny probative her open hand of what medical record he eye. already ought cab to reflect. When The court ruled that her in gave arrived, inquiry prior $25 he Winder and sent the defense’s about sexual his- called Although “annoyed” way. tory he was her was forbidden the state rules of her on evidence, women probative had caused him the trouble value was about “angry.” he was not far landlady, prejudice. reject- with his exceeded It also day apologize following suggestion he called “because ed the defense’s testimo- ny should not have limiting mushed be allowed with [he] felt instruction to [he] jury. the face.” her in defense, for the contra- also testified Kiah Agard claims that the trial court’s points: several dicting Keegan on recalled ruling ability him present denied Agard embraced kissed dur- that Winder defense, thereby violating his Sixth and to the second club. He also ing the drive rights Fourteenth Amendment to confronta talking that she drink- remembered process. tion and to due See Crane Ken bar, at the asleep last ing the others with 683,690, 106 tucky, 476 U.S. S.Ct. He further Keegan recollected. said that Lord, (1986); 90 L.Ed.2d 636 Williams v. him told threat- Keegan never (2d Cir.1993); F.2d Rosario v. gun. her with a ened Kuhlman, (2d 1988). 839 F.2d Cir. against Agard were Nineteen counts sub- claim, assessing we that a note state jury, concerning Keegan, two mitted to may restrict a defendant’s introduction of associated Winder. The re- fourteen violating evidence without the constitutional maining weapons charges. three counts long a defense so as those jury acquitted Agard on all but two “arbitrary restrictions are [n]or neither dis relating to women: he was counts found proportionate purposes they to the are de counts, sodomy two anal of one of the guilty Arkansas, signed to serve.” Rock rape felony and of assault was the 44, 55-56, 2704, 2711, felony. He was underlying also convicted of (1987). L.Ed.2d 37 Washington See Tex weapons degree posses- of third

two counts as, The trial court dismissed assault sion. L.Ed.2d rape repugnant acquittal, conviction Rape by shield statutes have been enacted degree weapons third posses- the of and one Congress majority and the of states. Fed. on appeal. reversed convictions sions 412; Lucas, Michigan R.Evid. 114 L.Ed.2d II York New law relied Issues bars, rule, general the trial court as a use alleged at trial evidence of an victim’s Testimony Victim’s A Limitation of prior persons sexual conduct with other than Agard’s first assertion of constitution defendant, grants but the court discre to the trial court’s error relates limitation al tion to in admit such evidence the interest of attempt counsel’s to cross-examine of defense justice. § N.Y.Crim. Proc. Law 60.42 engaged she whether had ever Winder 1992). (McKinney discretionary power, This persons intercourse with other than anal however, must be exercised within the sidebar, At a Agard. the defense asserted of the boundaries Sixth and Fourteenth being testimony sought was not that the Amendments. purposes “promiscuity anything of that prose argument argues nature.” The was that the Petitioner to this court attempted questions had cution overcome medi he intended to ask are not Winder trauma, showing rape no such cal evidence anal the kind that shield statutes eliciting prevent. on direct are examination Winder’s testi- New York’s intended was, asserts, occurring during a non- subsequent trauma he interrogation of Winder reason, or soil her name act. this believe attempt to harass her consensual For we an and about questions purpose rape innuendo intrusive that this second shield laws with he wish to show promiscuity. by excluding Nor did well-served defense counsel’s anal inter- propensity to consent to had she proposed questions to Winder. We find past by her which was demonstrated course law is rape the New York shield a restric- that he appeal, he avows behavior. facially applied tion that both and negative questions. answer sought arbitrary Agard’s case was neither nor “dis- that she answered Supposedly, had Winder purposes proportionate [it de- was] sodomy, with experience or no anal had little serve,” therefore not vio- signed to and does response strengthened have her would prohibition. constitutional late showing medical evidence importance Furthermore, persuaded by we are not Furthermore, points he out trauma. no anal purpose assertion that the other meeting already Winder had admitted rape not at His play. shield statutes is home him to going a bar with a man at inconsistency in argument is weakened intercourse; prose- in sexual engage assertedly expected his own he position: complain- that the had said to the cutor to answer that she “never” or Winder active”; and “sexually that Winder ant was engaged or twice” in this sexual activi- “once Agard told that she testified that she ty. Br. at 44. But himself testi- Pet. intercourse, thereby sug- “into” was not engaged in anal fied Winder inexperienced that ac- she was with gesting met, they on the weekend intercourse specificity. Peti- tivity doing but so without clearly conflicting with the answer statement that, because these tioner would have us find If anticipated. the defense now claims it jury, any further details before previous had on Winder testified that she testimony past little about Winder’s could do with occasions consented to anal intercourse harm. additional partners, have her would disagree petitioner that his coun- precisely sexual been the kind forbidden obviously questioning of Winder was sel’s “propensity” supporting Agard’s rape application outside usual engaged that the two had consensual claim Rape laws. shield laws serve shield sodomy night together. their While first purpose protecting the victims broad provided negative answer could have some rape from harassment embarrassment support measure of additional —however court, by doing so seek to lessen slight concern- defense’s —for unwillingness report historical women’s record, answer an affirmative ing the medical they also a second these crimes. Yet serve light its cause. could also aided judge’s tra- purpose: reinforce we, petitioner’s position, like this wrinkle power keep inflammatory and dis- ditional court, “skeptical” that the district jury. tracting evidence from See Sando- “never,” truly sought the answer defense (7th Acevedo, F.2d 148-49 val v. truly intent had no embarrass Cir.1993) Lucas, (citing credibility lessen her with the Winder 205). In this re- 114 L.Ed.2d answer, her jury. Regardless of Winder’s rape example are an of the shield laws spect, the ulti- testimony would not have altered power to court’s traditional exclude evidence verdict, and a risk of distract- mate it carried ex- prejudicial character of which far prejudicing jury. We therefore ing and probative past ceeds value. Evidence that and district courts agree with state of, particularly perhaps, conduct sexual point was not ruling trial court’s on this unusual activities such as anal inter- more erroneous. course, likely is to distract from it contemporaneous to con- asked Expert Testimony B. Limitation on probative sider. And for the side re Agard’s assertion of error bearing it is clear second equation, far from what limitation on lates to the trial court’s experience particular with a prior consensual testimony expert of an witness for the de- practice probability sexual has on testified when fense. Winder she was Defense posed counsel also a number of sodomy, engage hypothetical her anus was questions forced to Dr. Gilbert con- pull away “sore” and she twice had to from cerning the likelihood of trauma as a result cross-examination, Agard pain. due to On of “forcible” anal “against intercourse following testimony the defense elicited will” of the victim pain who felt and soreness. objected All objections Winder: were to and the sus- tained the trial court. The ar- Q: you defense during I also testified that believe gued questions proper, were because say you [Agard] this incident forced they comported anus; Winder’s your penis into is that correct? Agard cross-examination that “forced” his A. Yes. penis prosecution into her anus. The coun- will; Q. against your that was And cor- questions tered that the were not relevant to rect? case, because the alleged victim A. Yes. physical threats —not force —were used hurt, Q. in fact that And made sore? Or, to overcome pros- her will. in the A. Yes. words, “[y]ou ecutor’s own your didn’t ask Q. your testimony it’s And that at expert if there struggle was no would there subsequent again some time [he] forced his be trauma.” The court continued to sustain penis your into anus? prosecution objections any question con- yes. A. Yes. Forced — taining the words “force” or “forcible” on Q. much; very And that hurt correct? both direct and redirect examination. On A. Yes. summation, prosecution paraphrased experts’ both testimony, you told “[Winder] prosecution Later in the established struggle she didn’t when he was inside of struggle Winder did not with Agard her.... Dr. Gilbert Dr. you Karimi told because knew it would pain- “[she] be more if there struggle, is no there is not ful” if she resisted. always trauma, going to you ask prosecution expert witness, asked its rely on testimony....” [their] The defense Karimi, Dr. questions probability about the moved for a improper mistrial based cur- trauma to discernible the rectum as a examination, tailment of its continued penetration. result of anal When asked press disagreement its with the court’s deci- whether “if a woman anal intercourse through sion the trial Appellate and to the pain, you felt does mean would see Division, Department. Second trauma,” replied Karimi “[n]o.” Asked to explain, you he said that “for ... trauma analysis Our contention is aided have to have moderate or severe force. If express conclusion of Appellate moderate, force is less than there Division that curtailment of the defense’s wouldn’t be trauma.” expert testimony improper under New expert defense countered with testi- York (though law the court did hold the Jeffrey Gilbert, harmless). from Dr. who had not error to be Agard, 199 A.D.2d at examined 402-03, (“the Winder but had reviewed her med- hypo- N.Y.S.2d at 240-41 ical experience records. Based on his question posed thetical to the defendant’s conducting pelvic “thousands” of expert examina- was based on ‘fairly facts tions, he testified “very that there is evidence,’ often” inferable from the which included injury visible evidence of to the rectum when physical indications of force as well as threats”) engage voluntary individuals alia, (citing, inter- inter v. Met- Tarlowe course. He explained further ropolitan Inc., that “at times Slopes, Ski 28 N.Y.2d presence with the of injuries lubrication the N.Y.S.2d 271 N.E.2d present.” cross-examination, (1971)). are still On expert We find while testi- adopted the term “sometimes” by is limited requirements the of rele- place often,” the “very of vancy by also ac- the trial court’s traditional dis- knowledged that trauma necessarily is not prevent prejudicial cretion to or confusing the result of activity. such testimony, these considerations did not war- however, question, is whether the rul- important information Our keeping this rant record, the ing, light viewed of whole jury. the fundamentally deprived Agard of a fair trial. rulings a demonstrate The trial court’s Rosario, As 839 F.2d at 925. we outlined ambiguity in the words over an concern statute, rape of the our shield discussion may be Both terms “force” and “forcible.” and Fourteenth to our Sixth Amendments physical compulsion or to mean either used guarantee a criminal defendant Constitution against the will of another. doing something meaningful opportunity a a de- instance, physical latter coercion In the Crane, 476 U.S. at 106 S.Ct. at fense. example, prosecu- as the present; evidentiary rulings rarely Erroneous 2146. ease, alleged in threats can be used tion the level of harm to this rise to fundamental prose- the will of another. The to overcome right. To isolate those few constitutional concerned that the de- rightly cution was injure situations where such mistakes consti- expert led questions could have fense’s its rights, applies tutional this court the stan- exactly which jury to misunderstand “materiality” forth of as set dard “force” intended. meaning of the word Agurs, Supreme Court in United States v. noted, Indeed, Appellate Division 49 L.Ed.2d 342 S.Ct. force physical roles threats and mixed of Rosario, 924; Taylor at See 839 F.2d trial, alleged issue in the as Winder were at (2d Cir.1983). Curry, 708 F.2d kick, force, physical including acts Agurs stated: her punches slaps buttocks Agard, 199 at penetration. A.D.2d proper materiality must standard 606 N.Y.S.2d at overriding our concern reflect with justice finding guilt. Such ambigu- agree the term “force” permissible only supported if However, finding is potentially misleading. ous and beyond establishing guflt a rea- ambiguity not a to exclude reason necessarily doubt. It follows that sonable testimony entirely, when expert at least if the omitted evidence creates a reason- degree exercised the defen- force exist, Rather, able doubt that did not otherwise in the trial. it was dant was issue subject prosecutor’s cross- constitutional error has been committed. proper for the omission must be prosecution Dr. This means that examination of Gilbert. The context of the entire rec- brought have out the fact that Winder evaluated could struggle what about Agard, with and asked If there is no reasonable doubt did ord. opin- have on not the additional evi- guilt effect fact would Gilbert’s whether or considered, justifica- there is no ion. dence is hand, if tion for a new trial. On Moreover, permitted was not the defense already questionable valid- the verdict is extent questions to ask certain which to some minor ity, relatively additional evidence meaning of the term “force” and clarified might importance be sufficient to create specific language further taken used reasonable doubt. testimony. example, For de- from Winder’s counsel fense asked: 112-13, 96 at 2401- Agurs, 427 U.S. at Now, within reasonable you (footnotes omitted). could tell us certainty sort of degree medical what importance of the In order to evaluate the you expect a woman findings would if case, expert testimony in this additional ... anal inter- claimed forcible therefore, strength we at the must look will, time against course her the second supporting conviction. the evidence first, being than sore longer both times painful? being both times review, Appellate Divi direct On guilt of his gave sion characterized the evidence These additional details the defense’s “overwhelming.” Having reviewed the entire complain- interrogation grounding further agree we cannot testimony, thereby making ques- those record of ant’s characterization, required to ac nor are we clearly relevant. We there- tions even more ruling. it on habeas review. Annunziato cept in the trial fore find error court’s (2d Manson, Cir.1977). observations, light 566 F.2d of these we think that the the lack of We believe that medieal evidence Agard’s guilt evidence of cannot be charac- charge sodomy— anal on the one “overwhelming.” reject terized as .We thus —forcible jury Agard suggests for which the convicted this Appellate basis the conclusion of the jury primarily, that the decided the case if Division that the error was harmless. credibility the solely, Agard, Appellate stated, Division also Winder, Keegan. simply We and do not however, that it found the erroneous eviden reasoning know the behind the verdict.2 We tiary ruling to be harmless because “the de however, that, know, do as the district court expert permitted fendant’s testify that noted, duly Agard presented Winder and engaged voluntary individuals who sharply conflicting making stories their cred- intercourse, lubricants, using even frequently trial;3 ibility the central issue the conspicuous suffered from rectal trauma.” very beyond there was little evidence the Agard, 199 A.D.2d at N.Y.S.2d findings presented jury medical to the 241. agree opinion this evidence support testimony or undermine the of the Agard witnesses; allowed to make an' important two most about and that the jury’s significance any verdict does not demonstrate of the lack of clear medical evi credibility question. resolution of the In sodomy, thereby dence of and saved the er- Undoubtedly, 2. response, prosecutor the verdict was mixed and there- argued that Win- Indeed, confusing. fore somewhat a dis- by petitioner der had been victimized even charges given jury, cussion of the though petitioner jury wanted the to think that commented, know, "you they go- trial court ing he was the jury victim. She asked the sodomy rape to believe the counts and not a (sic) petitioner, consider that rather that any count? I mean it doesn’t make sense.” Yet victim, person was the who had been less than necessarily jury the verdict is not compromise. the result of a straightforward because he was an interested jury large could have credited Further, witness. pointed parts testimony of Winder's about the events of petitioner the fact opportunity had had the Saturday Sunday night morning, and but none- testimony to hear all of the case before despite theless concluded even the threats fairly responded he testified. These comments described, express violence she she did not to defense counsel’s statements that the victim unwillingness engage vagi- her in oral sex or lied, proper. and were therefore clarity nal intercourse with sufficient Agard guilty to make (citations omitted). State’s Br. at 46-47 to record jury of those crimes. The could also Likewise, the district court stated: testimony penetration have believed her that anal credibility .... This was a decision It could occurred. further have believed that she juiy. very carefully testimony And I read intercourse, unwilling engage in anal of both the defendant and the victim and there knew as much from their conversa- question my is no in mind that this court could previous jury tion the weekend. If the believed record, hope, credibility on a cold to make testimony, explain sodomy it would the anal people. determinations between the That acquittals as well conviction as the on the my any would not be task in event. But in charges rape sodomy. and forcible oral Alter- get some 'cases it’s easier to a sense for where course, natively, acquittals numerous credibility problems were or were not. jury indicate that the did not believe most of This is a much more difficult case. event, Keegan’s testimony. Winder's and credibility clearly primary issue. recognize jury acquit also that the did on a really only number of counts and that it agrees credibility Even the State was the relating this issue to the anal main issue at intercourse that a trial: guilty verdict was counsel, returned and I think summation, it is Defense argued in his appropriate carefully. to look at this But I will vigorously prosecution’s that the witnesses had say, parenthetically, that while is not rele- allegations against petitioner, fabricated the my vant to consideration of petitioner’s de- testimony and that constitutional was more credi- privations, jury when a mixed testimony prosecution’s ble than the returns verdict of the this, such as one compare witnesses. He has to assume that it too asked the quite testimony petitioner’s carefully. victim’s looked at testimony, It simply people’s didn’t discount "consider reasonableness all of the testi- two it, reject different everything stories.” Defense counsel also ar- discount gued petitioner’s description simply defendant said and throw it out events May verdict; was a "more return a reasonable and wholesale it wrestled with relationship why natural days extension of the this. that start- That is there were four before,” ed the peti- weekend and described deliberation. tioner’s as "consistent.” Transcript District Court at 14-15. [objection ruling rising overruled] to the level roneous it not de- harm because did constitutional I never He’s a smart man. said he was make an opportunity him of the prive stupid_ everything He used to his ad- Indeed, jury. the facts to the argument vantage. support conclusion. The Court this Agurs later moved for a mis- Petitioner’s counsel jury’s ignorance of that the there concluded remarks, stating on that trial based these material criminal record the victim’s presence on trial Agard’s at the “eomment[s] defense, in defendant’s self-defense to the improper]. [were He has absolute con- already on record evidence was part because here_ improp- It stitutional to be is violence, propensity for of the victim’s er to make to the that comments “largely cumulative.” thus record his not believe him due to exercise of should 114, 96 at 2402. Agurs, 427 U.S. at rights constitutional to be at his Here, too, opinion testimony would additional motion, denying that the trial trial.” argu- support for defense only add further responded judge that fact that “[t]he court clearly jury. before the ment present and all the the defendant was heard may

testimony something fairly is that nothing on. has commented That to do with Prosecutor’s Summation Remarks C. right to That was the remain silent. he final Agard’s third and assertion (sic) witness in as a matter of last the case appeal rights to confront is that his error appeal con- fact.” On direct of his him and have a fair against witnesses viction, Appellate simply Division stated prosecutor’s closing violated this point that it found his summation, In her remarks. Agard, meritless. 199 A.D.2d at “the one had an referred to who at N.Y.S.2d everything” and stated that “[a] answer review, habeas the district court stated On you he lot of what told corroborates what comments, by” that it was these “troubled you. complaining witnesses told “dangerously commenting close to they came thing doesn’t is denials right.” on the exercise of a [constitutional] perfectly.” At Everything else fits crimes. Transcript at 22. The District Court summation, she the end stated: determined, however, ultimately court prejudicial not so as to the remarks were know, gentlemen, You unlike all ladies habeas relief.4 warrant ... has the other witnesses defendant has, he un- a benefit and the benefit that Analysis Error 1. Constitutional witnesses, gets is to sit like all of all the here and listen to Although we have unearthed no federal he testifies. issue, other witnesses before which examines this numerous case highest it. courts have addressed state courts, Maine, Connecticut, District [objection overruled] Massachusetts, Columbia, Vermont, you gives big advantage, That doesn’t it. Appeals Washing along with the Court of State, prosecutori I get You to sit here and think what am such agreed have ton say going say commentary improper. am I it? v. Cassi going and how al State I 672 A.2d 905-08 going dy, How am to fit it into the evidence? 236 Conn. prejudice any suffered actual from this 4. We are not certain whether the district court that he I have read entire summations reached this conclusion because it was unsure remark. say place, context I cannot that I had occurred in first both counsel error any question my :.. mind that there was whether that error was because it was unsure have may Transcript any prejudice I have con- Compare Court at here or that harmful. District verdict.”) case, ("erroneous swayed this cern that this comment if think, erroneous, (“I really right.”) id. at 23 don't looked did deal with a constitutional See also comment, context, ( added) I recognize close (emphasis "... however with id. line, would habeas this was a close case. But I am not think it is warrant also relief.”) petitioner has satisfied demonstrated Jones, (1996); 580 A.2d Mich.App. State 162-63 335 N.W.2d 921-22 (Me.1990) (prosecutor’s comment im (1983) (remarks seriously prejudiced defen proper preserve but defendant failed to issue case, dant’s depended upon which his own States, appeal); v. for Coreas United 565 Grilli, testimony)); 35, State v. 369 N.W.2d 594, (D.C.Ct.App.1989); A.2d 604 State v. (Minn.Ct.App.1985); Robinson, 37 State v. 90, 746, Hemingway, 148 528 Vt. A.2d 747-48 118, 384 N.J.Super. 569, 157 A.2d 569-70 (1987); Person, v. Commonwealth 400 Mass. (App.Div.1978). These courts ad 136, 88, (1987); Dyson 508 N.E.2d 90-91 v. prosecutorial dressed arguments summation (D.C.Ct. States, 127, United 418 A.2d virtually identical to the Agard,5 one made in Johnson, App.1980); v. Wash.App. State 337, 900, also, 908 P.2d 902-03 See Other state courts have addressed similar Elberry, Mass.App.Ct. Commonwealth v. prosecutors comments of during cross-exami- (1995) 645 N.E.2d 42-43 (although nation of the defendant. Although many of error, they comments constituted im were rely upon the state cases and make reference court); mediately by cured Jenkins v. to summation cases and cross-examination States, (D.C.Ct.App.1977). United 374 A.2d 583-84 though cases they analytically were inter- hand, Supreme n the other O changeable, we believe that should be Michigan ap Court of and the intermediate separately addressed because summation re- Minnesota, pellate Jersey, courts of New marks raise constitutional issues which either People Texas have held otherwise. See are not or are of less concern when Buckey, 424 Mich. 378 N.W.2d 436-39 upon made today cross-examination.6 (1985) We Smith, (disagreeing People with express opinion no (1977) propriety as to the or Mich.App. 252 N.W.2d (comments, harmless, constitutionality though ultimately of similar remarks made “inadvisable”) Fredericks, People during cross-examination.7 We hold Grilli, 5.Buckey, cases, rejected argu- and Robinson upon raised these and center more ment that the Sixth Amendment was violated Buckey,though those made in we do note that all prosecutor’s commenting upon the defendant's holding upon three cases principle base their unique opportunity for testimonial fabrication. prosecutor may properly argue that the the de- Grilli, prosecutor type had made this credibility. fendant’s lack of during comment both cross-examination and upon closing, thereby clouding the issue. Fur- cross-examination, prosecutor 6. may legiti- On thermore, object defense counsel failed to to the mately question any opportuni- witness about his prosecutor’s stage, comments at either thus waiv- ty and testimony. motivation to fabricate Such ing right the defendant's to review. It is there- questioning goes credibility, to the witness' exactly weight fore unclear to us assign how much opportunity respond witness is afforded an exceedingly to that court's brief dismissal repair remarks, the attack. Summation Grilli, ("The of the issue. See 369 N.W.2d at 37 however, occur too late for the witness to reha- improp- cross-examination was not case, credibility may, bilitate his as in this prosecutor argue er. The was free to and attack attorney respond occur too late for even his Also, appellant’s credibility. appellant failed to States, the attack. But see Sherrod v. United any objection make right and waived his to re- ("This (D.C.Ct.App.1984) A.2d court has Similarly, view closing argu- of this issue. impermissible prosecutor indicated it is for the improper ment was objection nor was closing argument appellant’s comment in ex- (citations made paragraph to it.” and new omit- right ercise of his Sixth Amendment to confront ted)). briefly Robinson likewise dismissed the Accomplishing witnesses. the same result issue, and question by also confused the discuss- objectionable, cross-examination is no less since ing though it upon it had arisen cross-exami- prosecutor thereby can also seek to have the though nation actually during even it was made jury impermissible draw appel- inferences from summation: right lant’s exercise of his constitutional to con- It is well settled that when a defendant waives (citations omitted)). front witnesses.” Id. right his to remain silent and takes the stand in defense, thereby subjects own himself to decision, keeping (with with this we do not credibility cross-examination as to the of his exception) story. one address herein those cases And that issue would involve whether stoiy during assessed similar comments made been fabricated. cross- Here the issue note, however, credibility defendant's examination. We do whether his testi- mony Appeals was tailored D.C. to that of Court of ruled it unconstitutional witnesses, perfectly proper prosecutor inquiry. for a to make such comments even Robinson, (citations omitted). cross-examination, Sherrod, 384 A.2d at 570 478 A.2d at place weight therefore arguments little on the in contrast with several other courts which presented,8 evidence was force error fore other de- is constitutional pres- first time to forgo right to the either fendants insinuate pres- defendant’s forgo summation ent at their Fifth Amendment him provided at trial courtroom behalf, ence testify on own right to their risk his testi- unique opportunity to tailor suspicion. jury’s The Sixth Amendment Such com- match the evidence. permit those comments. does not a criminal defendant’s ments violate tactic analogous The remarks confrontation, testify on his own juries implied guilt to can be suggesting behalf, process to right receive due to exercise from a defendant’s decision and a fair trial. right testify, a Fifth Amendment not to tactic which has been held unconstitutional. Right to a. Defendant’s Confrontation 609, California, v. 85 380 U.S. S.Ct. Griffin provides, Amendment rele The Sixth 1229, (1965), Supreme 14 L.Ed.2d 106 part, prosecutions, all criminal that “[i]n vant explained: Court enjoy right ... to be the accused shall against confronted with witnesses [Cjomment testify on the refusal is a him_” right VI. This U.S. Const. Amend. system ‘inquisitorial of the remnant prosecu applies as well federal to state justice,’ Fifth criminal which the Amend- Four process clause of the tions via the due penalty imposed by It ment outlaws. is a Texas, 380 Pointer v. teenth Amendment. privi- exercising courts for a constitutional 1065, 1068, 13 400, 403, L.Ed.2d 85 U.S. S.Ct. privilege lege. by It cuts down on the (1965). of the most basic of 923 “One said, making costly.' its It is assertion' by rights guaranteed the Confrontation however, guilt inference right present is the accused’s to be Clause testify peculiarly failure to to facts with- every of his trial.” stage the courtroom at any knowledge in the accused’s is event 338, Allen, 337, 90 S.Ct. Illinois v. 397 U.S. irresistible, natural and and that comment (1970) (citing 25 L.Ed.2d 353 magnify on the failure does not infer- States, 370, 372, 13 146 Lewis v. United U.S. penalty asserting a into a constitu- ence (1892)). 136, 137,36 L.Ed. 1011 S.Ct. infer, privilege. jury may tional What the that a summation We find court, help from one given thing. no is unique op- noting the defendant’s remarks may infer when the court solem- What upon present infringe at trial portunity to be accused into nizes the silence evi- constitutionally guaranteed right. The him against quite is another. dence jury to the de- remarks invite the consider (citations 614, 85 S.Ct. at 1232-33 Id. at of his confronta- right fendant’s exercise omitted). recog- The Court footnote pe- guilt, tion as therefore Griffin effectively commentary pe- that such nized exercising right. The nalize him for exercising his defendant for Fifth nalizes the comments, imply that defen- which a truthful rights, it unconstitu- Amendment and held stayed out of the courtroom dant would have choose require be- defendants to be- testifying or would have testified tional before text, infra, discussing accompanying and dis- who stand sub held that a defendant takes the jects tinguishing grounds. credibili to cross-examination as to Smith other himself Smith, 327, ty. Wash.App. P.2d v. 82 917 State 1108, (no (1996) present only implicates right Sixth Amendment vio 1111-12 to be 8. This not Hoxsie, lation); trial, v. 101 N.M. 677 P.2d testify. State right but also the Brooks v. at Cf. (1984), grounds Tennessee, overruled on other Gallegos Agency, v. Ins. 108 N.M. (1972) (statute required Citizens L.Ed.2d 358 Martin, (same); (1989) 779 P.2d 99 State all, testily, prior presentation if at defendant (no (1984) Fifth N.M. 686 P.2d any testimony, violated defense defen- Sims, violation); People Amendment right against self-incrim- dant’s Fifth Amendment (1st 1996) (no Dep’t Fifth or Sixth N.Y.S.2d 542 right well as Amendment ination as Fourteenth violation). Amendment process). aspects infringe- to due Other right testify discussed in Part general on the are exception of cross- ment The to our omission H.C.2., cases be found in note examination infra. 308, 319-20, rights.9 1105, 1111-12, We believe that U.S. tween their S.Ct. Griffin appropriately applied principles are L.Ed.2d 347 We thus look to wheth- important justify er reasons sufficient case at bar. infringement upon the right defendant’s therefore hold the Sixth Amend- present at trial existed here. prohibits prose- ment to confrontation commenting in summation that a cutor presents argument State made testimony may be in light defendant’s viewed Michigan Supreme Court that such com presence in the of his courtroom mentary improper is not because fair it is a comments violate because such the defen- credibility. attack a witness’s Buckey dant’s at trial. The Su- court “[ojpportunity reasoned that preme has Court indicated Sixth and motive to per fabricate rights may witness,” Amendment times be overcome missible of inquiry areas important Maryland Buckey, 439,10 state interest. 378 N.W.2d at and stated that Craig, 497 perfectly “the proper comment (1990) (“[A] 3166, also, Grilli, 111 666 credibility.” L.Ed.2d defen- Id.11 See 369 (“[t]he right accusatory dant’s to confront witnesses prosecutor N.W.2d at 37 was free to may physical, argue appellant’s be satisfied absent face-to- credibility.”) and attack only at trial face confrontation where denial next prosecutor’s assess whether necessary confrontation is to further testifying such need to attack a defendant’s credi policy important public an bility important where is an justifying reason an reliability testimony infringement is otherwise right present of his at assured.”). also, Alaska, Davis v. See 415 trial. carefully may 9. We have considered and e.g., being present found distin exercise at tri- another — guishable holding al, the Court's earlier in testifying but not so as to avoid the risk of Raffel States, 494, 566, United 271 U.S. 46 S.Ct. 70 prosecutorial comment that he fabricated testi- (1926). L.Ed. held 1054 that the Fifth Because, mony.” Buckey, Raffel 378 N.W.2d at 439. Amendment is not violated when a defendant however, the court believed that the evidence in impeached who testifies in his own defense is prosecutor’s support that case did inference pre-arrest with his silence. See also Jenkins v. perjury, proper it deemed the remark to be a Anderson, 231, 2124, 447 U.S. 100 S.Ct. 65 commentary upon credibility. L.Ed.2d 86 Court reasoned Raffel that, once defendant takes the stand in his own accept 11.The court further stated: "To defen defense, subject he is to cross-examination on the argument dants’ must choose between topic pre-arrest of his silence. As we have al exercising right their be to at trial and stated, ready issues raised on cross-examination right say some other be would to that a defen may implicate rights strongly constitutional less right dant has the to fabricate conform or testi only in than those raised summation. Raffel Buckey, without comment.” 378 N.W.2d point therefore is less on than It is also Griffin. disagree. unequivocally 439. We Federal law principles good whether unclear remain Raffel provides that a right criminal defendant has no States, law. See Grunewald v. United 391, 353 U.S. defense, perjure to himself in his own Harris v. 425-26, 963, 984-85, 77 S.Ct. 1 L.Ed.2d 931 S,Ct. York, 222, 225, 643, 645, New 401 U.S. 91 (Black, J., (1957) concurring) (questioning (1971), 28 attorney may L.Ed.2d 1 and that his States, whether survives Johnson v. United Raffel knowingly permit testily falsely, not Whiteside, him to Nix 196-99, 189, 549, 553-54, 318 63 U.S. U.S. 106 S.Ct. Jenkins, (1943)); L.Ed. 704 see also 447 U.S. at (1986). Nothing 89 L.Ed.2d 123 holding in our (Stevens, J., 245 n. S.Ct. at 2133 n. 10 principle. is counter to this It would be some (questioning concurring) whether survives Raffel say Ohio, holding what more accurate to that our Doyle v. 96 S.Ct. opportunity (1976)); Hale, maintains the aof defendant to fabri L.Ed.2d 91 United States v. comment, testimony cate or conform without 175 n. an 2136 n. (1975) opportunity granted by (declining L.Ed.2d the Fifth and to decide whether Sixth matter, Griffin.) very Amendments. survives Johnson and For that exis Raffel guarantee tence of the Fifth Amendment and its however, may testify that a Buckey, defendant on his own behalf pros- Even conceded that “a case, presents opportunity perjury; may, every argue [not] ecutor neverthe less, countervailing principles justice defendant of criminal who has testified has fabricated his testimony merely accept every we through opportunity because he mandate that not has sat his Thus, completely trial and the evidence. it cannot be eliminate that risk. We decline to heard every said that defendant will he faced rights with a restrict a defendant's constitutional in or forfeiting choice prevent between hypothetical perjury. one so that he der to however, When, raises analy- our cation. starting point of as the takeWe 1) specter of fabrication for the first by the Wash- expressed the distinction sis 2) summation; without time on facts evi- Appeals between Court of ington State 3) inference; in a support a defendant has dence argument that directly manner which attacks the defen- testimony to meet the state’s evi- his tailored defendant, present during his entire dence, that a dant’s and her trial, begin ring. our alarm bells When being present in courtroom by virtue of trial, present, three are opportunity, an un- all circumstances gained has trial, in the bells become shrill sirens. Such commen- witness available tary proper is not comment credibili- testimony to meet evidence. tailor his (state Johnson, ty. Lawyers may not raise relat- at 902 innuendo Compare 908 P.2d ing credibility from the shadows attending bias or argue virtue opportuni- unlitigated facts for the first time unique gained defendant has pre- testimony) closing arguments. their Such tactics his or with State ty to tailor her cross-examination, Smith, vent rebuttal and Wash.App. 917 P.2d (state (1996) process engines truth-finding may argue that defen- 1111-12 testimony to in an criminal trial. Without tailored or her adversarial has dant support an made in facts inference proof). The remarks Smith state’s fabrication, commentary upon prejudicial remarks are permissible such may be witness, probative. They certainly do and not at all credibility as a while defendant’s Johnson, provide centering upon important reason for us those made back defendant’s of his fabricate cut on a exercise unique opportunity to rights. only personally all Sixth Amendment witness able to hear previously presented to the the evidence jeopardize not the state’s holding Our does jury, permissible are not because prose opportunity credibility. If a to attack nothing upon than an attack amount to more credi cutor’s concern about defendant’s rights grants of the Constitution the exercise readily has bility legitimate, is she available Agard’s criminal defendants.12 questioning of him. For alternate means Johnson, in similar to those made remarks him example, is free to cross-examine she such we limit our discussion to comments so pre-trial ac discrepancies about between his not reach the Smith-tike remarks. and do his testimonial account. count events and evidence, may distinction, Having this she introduced This as well as made during discrepancies questions upon remark those then above between cross-examination course, free, comments, is also She is relevant to her summation.13 summation in order point he has motive to lie dispute the to out that the need to defendant’s whether (as prosecu escape Agard’s to to incarceration credibility important is so overcome did), upon that in and to remark light In the tor fact right to confrontation. his did). (as Only distinctions, she also motive summation we think that assert- these target and specifically upon Agard’s those comments need to comment credibili- ed little, unique suspicion upon the defendant’s facts. It is cast ty weight carries on these present at his right to proper prosecutor to cross- Sixth Amendment perfectly for a testimony portions are forbidden those trial and hear all a about examine defendant Constitution; those remarks are sim- testimony which have indicia of his fabri- trial, stating avoid Although Washington Appeals nor are we she Court of 12. 'upon point problems critical distinc- first centered as the summation constitutional Smith, Smith, 82 presence tion between Johnson Wash.App. at raising of fabrication or the issue we at note a P.2d 917 during factual cross-examination. These important Johnson evaluated distinction: second only note are not before us. circumstances Smith remarks while examined summation truly credibility is if the defendant’s cross-examination comments. point wants to raise with which the state jury, possible raise that on both issue however, above, we As mentioned 13. implicating without consti- cross and summation stating prosecu- here it is constitutional rights. tutional during question the defendant cross-exami- tor present unique ability his to be at nation about upon credibility, pie commentary nor are As noted in the of the defen- discussion right present at dant’s the Su- they necessary prosecutor’s argument to a preme already has commen- Court held that credibility, if that defendant lacks tary right which chills the defendant’s basis in and not argument has a fact testify on his own behalf is unconstitutional. innuendo.14 Griffin, U.S. at at S. Ct. 1233. hold that We therefore prosecution The remarks made here remarks violated Sixth summation chilling have similar effect the same right to Amendment confrontation.15 by forcing right to choose be- defendant having his

tween viewed without exercising unfair comment or his constitu- Testify Right to b. On One’s Own Behalf rights testify tional and to be at provides The Constitution a criminal de trial. We therefore that these summa- hold implicit right testify fendant with an his tion comments violate a defendant’s Dunnigan, own defense. States United testify correspondingly own behalf S.Ct. Fifth, Fourteenth Sixth and Amend- (1993); Rock, 49, 107 L.Ed.2d U.S. at ments. right springs at That S.Ct. from the Right c. to Due Law Process Fourteenth Amendment’s Due Process Clause, guarantee the Sixth Amendment’s providing path addition for the prosecutions, all “[i]n criminal the ac Fifth and to attach Sixth Amendments ... enjoy shall com cused prosecutions, state the Fourteenth Amend- pulsory process obtaining witnesses guarantees a ment state criminal defendant favor,” VI, U.S. Const. Amend. and is also law,17 process including fair due trial. “necessary corollary” Fifth Amend determining prosecutorial whether mis- guarantee against compelled ment’s testimon conduct to a summation amounts vio- Rock, 51-53, y.16 Amendment, 483 U.S. at lation the Fourteenth Supreme 2708-10. Court has stated that “[t]he rele- right presence 14. The dissent asserts that this is not at nal defendant's his own trial as "unique” present though presence "[d]efendants because are in lie. We were license to country every working day courtrooms all across the intend to ensure that there is never a on day.” unique right speak, The of which we how- which are free within so to comment our ever, himself, right unique Agard jurisdiction. is not to some present to but rather the be at right granted by only person compelled is a the Constitution 16. “No ... be in shall against criminal defendants and to no other wit- criminal to be a trial case witness himself." parties. Although Agard or nesses U.S. Const. Amend. V. has not appeal relied the Fifth in his Amendment us, Whether, sponte asserts, we raise the sua order dissenting colleague as our 15. emphasize entire the framework of this as jurors expect present the to be defendant out common-sense, set in the Constitution. "plain virtue court of not the Amendment,” point. the Sixth is beside Jurors interrelationship rights the enumerated of regard draw innumerable conclusions with significant_ is be The Bill cannot con- presence, just they may to a defendant's as draw merely taxonomically, pi- strued a set of regard them with to a defendant’s failure geonholes preconceived or rules into which a testify, nothing judges and is there can do about given factual situation does or does not fit. applicable it other than instruct them to the whole; Rather it be its a it is an must viewed Griffin, law. at at 85 S.Ct. Cf. interlocking complex principles of fair- of basic Supreme stopped 1232-33. But Court the has ness and individual entitlement that carries a prosecutors emphasizing the from latter fact and entirely continuing meaning applicable to dif- implying wrongdoing some the of exercise changed ferent or circumstances. rights, we these constitutional are to do able Oakes, Proper James L. Role the Federal of the same as to the former fact. And will this we Enforcing Rights, Courts In the N.Y.U. Bill 54 do. (1979). L.Rev. 922 certainly It is are true defendants life, every day. hope any person deprive in courtrooms We it is true "No Stale ... not shall prosecutors liberty, property, process, in courtrooms all across the without due law_" country day every commenting upon a crimi- Const. XIV. U.S. Amend.

713 defendant, however, prosecutors’ question the whether the is question is vant commentary goes infected the trial with unfair to the heart of the ‘so the comments resulting constitutionally guaranteed rights pres- as to make the conviction ness be behalf, process.’” Darden v. testify of due Wainw trial one’s own denial ent at on 477 106 S.Ct. right, very U.S. of the trial the fairness entire is com- (1986) 144 (quoting Donnel promised.18 L.Ed.2d DeChristoforo, 416 ly v. Moving three-step on analysis, with the we (1974)); L.Ed.2d no note that the trial court took curative (2d Sullivan, 934 F.2d Gonzalez prosecutor’s measures correct the error Cir.1991). also, ex rel. See United States (an result, unsurprising given that he did not (2d McKendrick, Haynes v. 481 F.2d 152 erroneous). find her comments Cir.1973) (racially remarks biased summation Though judge it is true the instructed defendant). process rights due violated jury lawyer’s comments not the the were previously must have held that “[w]e jury’s evidence and that recollections context of the examine remarks control, Charge at events should see prose entire trial to determine whether the jury instruction and is a standard prejudicial er cutor’s behavior amounted specifically curing at nor directed error determining preju there whether is ror. prosecutor’s it made of the at time at three dicial error we look factors: improper remarks. misconduct, severity of the measures misconduct, Finally, are not all certain that cer we adopted cure the been tainty Agard.would the misconduct.” have convicted had conviction absent (2d Leonardo, already have 928 F.2d error not occurred. As we Strouse 818, discussed, Cir.1991); Bentley Scully, credibility unquestionably see F.3d — (2d U.S. -, Cir.1994), denied, cert. issue fact that central at trial. The 1029, 134 sodomy L.Ed.2d convicted and not vaginal rape sodomy or oral indicates that assessing Agard’s right whether might believing have trouble all Win- then, violated, first process has been we due perhaps, testimony; prose- without the der’s severity prosecutor’s mis examine comments, it cutor’s summation would argues The State the com conduct. entirety. believed We cannot there ments “brief isolated” and three-step certain. test Our therefore Bentley, 41 fore not severe. See F.3d at 825. remarks, un- that the indicates Yet, length commentary challenged by judge, deny Agard did automatically Judge As the late decisive. fair trial. said, prosecutorial “[improper Frank once Viewing comments in the context of remarks not been these summation] [have deemed] trial, compressed recognize prose- also single into a the entire we harmless because sentence, tramples poi commentary upon a experience teaches that a cutorial rights has been suggestion of that needs no elab constitutional sonous kind defendant’s implicate the fairness of a trial v. Antonelli Fire held to entire oration.” United States (2d Cir.1946) Co., error. F.2d more than non-constitutional works When (footnote omitted). (Frank, rejecting process A claim dissenting) J. the defendant’s due Darden, Supreme directly in Court stated disparages comment which the de manipu- prosecutors’ argument did rights of constitutional can “the fendant’s exercise evidence, its nor did it regardless severe misconduct late misstate be important process implicate specific rights the accused length. More to due anal other right or the ysis such as counsel nature effect remarks. 181-82, Darden, circumstances, prosecutor’s remain silent.” U.S. Under added). In (emphasis 2471-72 closing commentary upon opportu witness’ 106 S.Ct. at contrast, testify on Agard’s specific rights testimony might only impli nity to fabricate law; behalf, compulsory process, evidentiary when witness his own cate state Darden, S.Ct. 91 L.Ed.2d 144. regarding U.S. 18. See discussion infra against confront the witnesses him were all anced that he feels in equi himself virtual implicated by poise the comments we are review- as to the harmlessness of the error.” ing. trial, 994.). 435, 115 The entire fairness of his Id. at S.Ct. at thereby process, infringed. due were likewise Agard’s We therefore find that Fourteenth Application b. Standard Review process

Amendment to due of law was Upon evaluating the trial court’s er violated court’s error. standard, ror under the we Brecht/Kotteakos are certain that it was harmful. As noted in 2. Harmless Error Review II.B., supra, Part credibility primary was the Agard’s issue and was what the Having determined that the trial court must have carefully. assessed most As permitting prosecu- committed error issue, particular this Agard’s attorney reiter improper tor’s summation violation of ated oral before the Agard’s district rights, constitutional we now consid- court: er whether that error was so harmful as to grant Agard’s petition

warrant a for habe- ... the remarks that I am complaining corpus. about that the made summa- (sic)

tion again relates to the main issue in case, a. Standard Review credibility. which is We have the defendant testifying, typical. which is not evaluating application for the writ of prosecutor] And big point [the makes a out corpus, apply habeas we the standard of saying jury: big this is a advan- review enunciated Brecht v. Abraham-s tage guy got; got to sit here and Brecht, on.19 the Court held that a listen to all of our luxury witnesses and the conviction be set aside on collateral ha- trying of then figure way “ out the best beas review if error ‘had substan get around the damaging testimony they injurious tial and effect or influence de implicate had. So it did his constitutional termining jury’s verdict.’” Brecht v. rights. Abrahamson, 619, 637-38, 507 U.S. 113 S.Ct. But, again, on question prejudice, (1993) 1721-22, 123 L.Ed.2d 353 (quot you know, anything that would cast States, ing Kotteakos United 328 U.S. suspicion unfair on his credibility in this 1239, 1253, 66 S.Ct. 90 L.Ed. 1557 kind of ease has to be considered harm- (1946)).20 If, however, “grave doubt” exists ful.... It definitely related to the main error, as to the harmfulness of the it must case, theme of this which is: who should petitioner. resolved in favor of the habeas you believe? McAninch, 432, 437, O’Neal v. 513 U.S. 992, 995-96, (1995) S.Ct. 130 L.Ed.2d 947 District Transcript Court at 13-14. The (“By ‘grave doubt’ we mean improper summation comments mind, judge’s evenly the matter is so directly bal negatively affected recently 19. The Court has underlined the differ Chapman California, that enunciated in entiation to which it alluded in Brecht and 18, 24, Ari 17 L.Ed.2d 705 Fulminante, 279, 307-08, zona (1967), which held that a conviction tainted (1991) 113 L.Ed.2d 302 be constitutional error must be reversed unless the tween "trial error” and "structural error.” See reviewing court could "declare a [the belief that — U.S. -, -, Roy, California 337, 338-39, beyond error] trial was harmless a reasonable (1996). 136 L.Ed.2d 266 "Struc Although recently doubt.” we have commented tural error” is that which is so fundamental that Chapman may occasionally that review remain inappropriate, Roy, - 338, harmless error review is review, appropriate Lyons even collateral at -, 117 S.Ct. at while "trial error” Johnson, (2d Cir.1996), 99 F.3d that presentation is that "which occurred the Moreover, appeal. issue is not before us on Fulminante, it is jury.” the of 307, case to the 499 U.S. at no more determinative of the matter at bar than permit S.Ct. at 1264. The trial court’s Lyons, ting improper prosecutorial it of was in because the trial comments is “trial court’s error proper subject error" and thus regardless is the of our was harmful of which standard is review for harmless error. applied. proceed We therefore with Brecht/Kot- analysis. teakos Brecht, 20. Prior to the standard of review for use by federal courts on collateral habeas review was error, magnitude. But it is not have considerable credibility, single-handedly could error, to ob- jury’s decision to much less constitutional sustain the for the reason been believe, evi- contrary jections ambiguous questions. to the available medical dence, she anal- testimony that was Winder’s regard prosecutor’s the comments With that than denial ly rather sodomized summation, agree Judge I on Oakes place had taken that week- intercourse appellant’s rights they implicated that the meets find that error end. We therefore would, testify. present at trial and to of harmful- standard the Brecht!Kotbeakos however, holding expressly limit our to the injurious in that it had substantial ness following circumstances. jury’s on verdict. effect First, only supporting evidence Conclusion appellant tailored his inference that testimo- improper re- summation The presence prosecution’s was his ny case constitutional marks violated numerous itself. in the courtroom guaranteed to state criminal defen- rights was, example, nothing the rec- There dants, prejudicial to and were so indicating appellant giv- ord earlier harmful error. We therefore be considered version of events and altered en different writ court’s denial of the reverse the district prosecu- learning version after The corpus. habeas case remanded only support The evidence. tion’s to enter a revised that court with directions inference, therefore, appellant’s was exercise Agard’s release he judgment ordering after rights. constitutional pos- weapons served his sentence on has Second, conviction, suggested by the the state affords the inference session unless sixty days entirely in thát appel new within from unfair him a anticipate shall our mandate. Our mandate no chance to and rebut issuance lant had law, testimony. issue Under New York absent forthwith. fabrication, appellant could a claim recent WINTER, Judge, concurring in the Circuit prior consis not introduced evidence result: is, statements —that evidence that tent story before witness had told same even although some- I concur the result prosecution’s People v. ing the case. See grounds expressed those what different McDaniel, 81 N.Y.2d 595 N.Y.S.2d Judge opinion. Oakes’s (1993); People v. McCle N.E.2d regard appellant’s to the limitation on With an, N.Y.S.2d 69 N.Y.2d Winder, appellant has examination of cross long as York So New N.E.2d any of various shown that answers not from introduc criminal defendants prohibits might given questions have been ing prior statements demon consistent enhanced his at issue would have defense version of evidence was strate their respect. particular, he laid any material prosecution’s learning after fabricated questions to show that no foundation not, evidence, my prosecutors its arguments might light on his concern- shed view, argue such fabrication occurred. physical of trauma. ing the lack of Third, prosecutor’s argument testi- regard to the limitation With ease turned on detailed question harmless. The expert, of the defense conflicting given of several .events versions hindsight. because of seems close by the prosecution witnesses and defen- -know' rendered. now of~tfie"unusual^verdict pres- verdict, prosecution witnesses were the"ambiguities re- light of that dant. testimony while only for their individual ent garding the use of the words “force” obvious, for the entire limiting defendant was and the “forcible” now seem appellant heard trial.1 accusation event cross-examination may in the courtroom purposes of matter defendant to 1. We assume for presence remarking upon that dissenting colleague con- the trial and that our is correct in However, prose- merely the cluding generally expect states the obvious. jurors a criminal my prosecution’s colleagues Frankly, case and his testi- tailored herein advance. was, therefore, powerful argu- I find to don’t either. ment. It none of the witnesses affected Perhaps good starting point my for ex- and, noted, him, virtually as im- against was pressions disagreement my with col- possible directly. to rebut The effective is to leagues authority restate the limited way appellant to have this unfair for avoided reviewing peti- that a federal court has in powerful but would have been ei- corpus tion habeas for relief based testify- or presence ther at the trial forego to asserted state court This is error. described important ing in constitu- his own defense — Donnelly 637, v. DeChristoforo, 416 U.S. rights. tional 1868, (1974), 94 S.Ct. 40 L.Ed.2d 431 as the result. therefore concur follows: noted, Appeals The Court of in this case GRAAFEILAND, Judge, VAN Circuit petitioner urged, its review was dissenting: process, “the narrow one of due and not February Ray Agard sat in a supervisory power the broad exercise of Queens County jury courtroom with a for ten possess in regard [it] would [its] days prosecuted of New York while State regard own trial court.” We this observa- him for a number of sex-related crimes. important every tion as for trial error Keegan Nessa Winder Breda infirmity might applica- or which call for grand jury A complaining witnesses. of supervisory powers tion correspondingly respect Agard indicted two counts with constitutes “failure to observe that fun- Keegan’s claims and fourteen counts with very damental fairness essential respect to Three additional counts Winder’s. concept justice.” California, Lisenba v. possession dealt with unlawful of a re- 219, 236, 314 U.S. 62 S.Ct. deliberation, days volver. four After (1941). L.Ed. 166 jury Agard acquitted on both counts involv- (footnote omitted). Id. at S.Ct. at 1871 ing on all Keegan the sex abuse counts involving except a Winder count of sod- light It is of these words that we omy California, and a count of assault associated view should 380 U.S. Griffin claims, one of rape (1965), which the court 14 L.Ed.2d 106 subsequently repugnant my colleagues dismissed guiding treat as a star Agard’s pertinent rape acquittal grant on the claim. relief herein. The case of The convicted counts of Hasting, two United States v. 508- 1980-91, possession, unlawful but one of the counts 76 L.Ed.2d 96 duplicitous. was (1983), dismissed the court as weight sets forth the correct accorded Griffin: conviction, appeal Agard’s On Division, Appellate however, Department, Griffin, Second stat- after Soon this Court ed that “overwhelming Chapman California, there was evidence of decided which in- guilt” prosecutorial defendant’s and that the evidence volved comment on the de- legally “was testify sufficient establish the defen- failure fendant’s a trial that guilt beyond dant’s a reasonable doubt.” 199 had been conducted in California before (1998), A.D.2d question N.Y.S.2d 239 decided. Griffin denied, leave appeal per N.Y.2d whether error se error Griffin N.Y.S.2d 635 N.E.2d requiring automatic reversal whether Court arguments found “no merit” in the the conviction if could be affirmed the re- beyond practice cutor's ing upon here excluding comments went far remark- iar with witnesses ex- presence. They specifically Indeed, cept testimony. for their individual emphasized pres- witnesses were not courtroom scenes on television or in the movies ent to hear each others' and that the require presence important char- "big advantage” defendant therefore had a view, my acters dramatic effect. there-

being going able "to sit here and think am what I fore, prosecutor's explored remarks matters say going [h]ow and .... am I it into the fit beyond telling far the obvious and had a effect. many jurors evidence?” I doubt famil-

717 excerpts that, following two suggest the whole viewing court concluded opinions very my colleagues’ may from well beyond a record, error was harmless qualify “impregnable as citadels of technicali- Chapman this Court doubt. reasonable ty.” affirmatively rejected per se rule. a long prohibits as York criminal So New examining harmless-error After introducing prior consis- defendants along with the feder- the 50

rules of States tent statements to demonstrate that their Chapman § analog, 28 al U.S.C. version of evidence was fabricated af- stated: Court evidence, learning prosecution’s ter federal, rules, “All of these state not, my view, may argue its prosecutors very purpose a useful insofar as serve that such fabrication occurred. convictions for they setting block aside op. at Winter 2. little, if defects that have small errors or certainly true that are It is defendants having changed the any, likelihood of every day. in courtrooms We trial. of the We conclude result prosecutors in hope it is not true that may some errors there constitutional country courtrooms across the are ev- all setting particular case in the ery commenting upon a day criminal de- unimportant insignificant so are presence at own as fendant’s Fed- they may, consistent with the though presence license lie. harmless, Constitution, be deemed eral intend to ensure there is never a .that requiring the automatic reversal of they free so day on which to comment U.S., 386 87 S.Ct. the conviction.” jurisdiction. our within added). (emphasis at 827 op. at Oakes 40 n. holding rule harmless-error determinative in issue that should be un governs even constitutional violations every petitioner had a case whether circumstances, recog the Court der some Manson, 547 Malley fair trial. v. F.2d 28 safeguards given myriad nized (2d denied, Cir.1976), 97 cert. trial, taking provided to assure fair (1977). 1335,51 L.Ed.2d 598 S.Ct. falli reality of the human into account the there can be no bility participants, agree Although judges laymen both error-free, perfect thing such trial, they a fair litigants are entitled to guaran and that the Constitution does not they concept believe that the are mistaken if States, tee Brown v. United such trial. origin the United States fairness had its 223, 231-232, 1565, 1570- 411 U.S. recognized as a Constitution. Fairness was (1973), citing 208 36 L.Ed.2d Bruton plain long common sense before matter States, 88 United U.S. came into existence. The the Constitution (1968); 1620, 1627, 20 cf. S.Ct. L.Ed.2d has to be heard been defendant 107, 133-134, Isaac, Engle U.S. principles “first of the social one of the called 1558, 1574-1575, 71 L.Ed.2d 783 compact administration (1982). concern, States, Chapman reflected the justice,” McVeigh v. United U.S. Wall.) (11 (1870), Roger Tray- later noted Chief Justice “a L.Ed. California, Supreme justice, recognized nor of the Court principle of natural intelligence rales viola and con- courts fashion whose the common when such reversals, nations,” McVeigh, automatic science of all tions mandate Windsor A 23 L.Ed. 914 becom responsibility, from their “retrea[t] English translation of ing phrase, of techni Latin ‘impregnable instead citadels ” any matter “[h]e R. of Harm which is who cality.’ Traynor, The Riddle determines sides, though Kavanagh, hearing .he without both (1970)(quoting less Error 14 decided, justice,” is right, has not done Improvement of Crimi of Administration Seneca, Power, philosopher, Roman attributed nal Exercise of Judicial Justice (footnote (1925)) seventeen centuries before omit who lived some 11 AB.AJ. ted). written. the Constitution was 718 us, jurors with “ancient principle expect

A roots” is Like all of the similar defendant to present court, be present and, a defendant in right the be lay insofar as the prosecu and cross-examine concerned, court to confront jury expectation is is based Goldberg Kelly, See v. tion witnesses. 397 common-sense, plain the Sixth 270, 90 1011, 1021, 254, S.Ct. 25 U.S. L.Ed.2d Simply put, Amendment. how could a defen- (1970). presence 287 The defendant’s “is dispute dant the prosecu- the legitimacy to the basic fundamental the if tion’s witnesses he know didn’t what v. process,” Washing criminal United States said? 705, (D.C.Cir.1983) ton, 489, (per 497 F.2d I is prosecutor believe it most unfair to the curiam), required the “dictates of and is in the instant case “specifi- to hold that she States, humanity,” Lewis v. United 146 U.S. cally suspicion target[ed] and east the 370, 136, 137, 372, 36 S.Ct. L.Ed. 1011 13 unique defendant’s right Sixth Amendment (1892) (internal omitted). quotation marks present to be at his trial hear all testimo- Indeed, strong right is the so defendant’s ny.” op. Oakes at 40. There nothing was time, present Supreme a be for “unique” presence, about the defendant’s Court held that could not be waived. See I agree prosecutor cannot that the “cast sus- 373-74, 137-38; Hopt id. at 13 S.Ct. at v. picion” upon it. present Defendants Utah, 574, 579, 4 110 U.S. S.Ct. 28 all country every courtrooms across the (1884). right present L.Ed. 262 be working day. It jurors was obvious to the “scarcely important has to be less been said through ten-day who sat trial that right than of trial the accused itself.” defendant also there and could hear the States, 442, 455, Diaz v. United 223 U.S. 32 testify State’s witnesses before he offered his (1912). S.Ct. 56 L.Ed. 500 “The own question. version events very right substance the defendant’s is to view of all I foregoing, search in vain present. By hypothesis be it is unfair to prosecutor’s constitutional error in the Snyder Massachusetts, exclude him.” v. 291 concerning Agard’s presence statement 136-37, 330, 343, 54 U.S. S.Ct. 78 L.Ed. trial. (1934) (Roberts, J., dissenting); 674 see also My colleagues argue McElroy, 496-97, that the Greene v. 79 1400, 1413-14, comment “invite[d] L.Ed.2d consider [Agard’s] exercise his to confronta Today, in both the York New and the tion guilt, penal and therefore courts, only federal a defendant not has the right.” him exercising ize[d] Oakes throughout present to be he op. They say at 33. this comment present, subject duty has the to be “implied] truthful defendant would exceptions. certain limited See Fed. stayed of the out courtroom before tes 43; §§ N.Y.Crim. L. R.Crim.P. Proc. 260.20 tifying.” implication, words, Id. The in other 340.50; People Winship, 309 N.Y. is that a truthful defendant would have se (1955) 313-14, curiam). (per 130 N.E.2d 634 questered just himself voluntarily, as all oth fools, Jurors are not blind oblivious to the involuntarily er sequestered. witnesses is, believe, world them. It around safe to Supreme long provided Court ago say jurors,'who prosecu that the heard the implication answer to this in Geders v. Unit concerning Agard’s tor’s opportu comments States, ed nity to hear the State’s witnesses before he 1334, 47 (1976): L.Ed.2d testified, himself had seen scores of trials petitioner simply But portrayed in the ‘movies wit- television or ness; them; he was also read the defendant. A se- about and almost without exception, questration present order defendant affects defendant reason, quite each way way trial. If for no a different the defen it af- nonparty dant required so that fects a witness presumably who juror What has identified. has not felt no stake outcome trial. A tingle little, spectacle nonparty ordinarily as he witnessed the dramatic witness has oth- of a pointing testimony, defendant er than own discuss with asking counsel; the victim “Is this man who —?” in a defendant criminal Kimbrough, attorney State fabricated. must consult with case often Moreover, N.J.Super. (App.Div “the ac- A.2d rule” during the trial. Burt, .1970); applied N.J.Super. it is State complishes less when witness, 393, (App.Div.1969), 258 711 aff'd. o.b. nonparty A.2d rather than defendant (1971), 156, right 279 A.2d a matter of 59 N.J. 850 cert. defendant as because the 1047, 728, denied, usually present for all testi- 30 and is can be the opportunity to discuss L.Ed.2d 735 Here issue of mony and has the credibility attorney up to the whether his testimony his with his defendant’s of was tailored the testi he takes the witness stand. time witnesses, perfectly prop of other jurors My colleagues’ assertion inquiry. er distinction between recognize this wouldn’t again quoted belittles the foregoing language defendants and witnesses The verba- 1, jurors. attempting People Buckey, In common sense of tim in v. 424 Mich. 378 prosecutor’s 432, (1985), the state- the measure effect 438 where same re- N.W.2d ment, juror even visualize a I am unable to sult was reached. saying, room and rising to his feet the State, 664, In Reed v. 633 S.W.2d 666 innocent, is he would have sat “If (Tex.Ct.App.1982), prosecutor told the during the entire trial. He in the courtroom “And, from the jury: you heard defendant. and let about his business gone have

would course, story. You heard the defendant’s Of lawyer for himself.” his fend story after you got to hear the he defendant’s observed, already appellate courts As state testify everyone had else The listened —.” supervision con more great have a deal was a Appeals Court of said “comment one, conduct of their trial courts manifestly improper trol over the reasonable passing courts habeas deprive appellant than do federal of prejudicial, did not Howard, corpus applications by state defendants. It fair trial.” also State v. See therefore, (S.D.1982). of that a number significant, 872, is N.W.2d have no violation of defen state courts found Warren, 973 F.2d 1304 United States similar to rights by comments those dants’ (6th Cir.1992), began on June below For ex in the instant case. opening 1991. The Government made its Robinson, N.J.Super. ample, in State v. day, but the defendant did on that statement curiam), (per (App.Div.) 384 A.2d not. The trial then was recessed until June denied, 77 N.J. 391 A.2d 498 rt. ce judicial judge could attend a so (1978), prosecutor argued that the defen conference, for two recess continued ability to sit here and listen to dant “had the judge’s days of illness more because testify.” The the other witnesses court re closing argument prosecutor’s wife. jected the claim of error with the defendant’s jury, he said: following language. argument, I tomorrow it gave my opening prosecutor’s com- We conclude that ago. The truth hasn’t will be two weeks any way deprive did not in defen- ments original changed gave you I since right the witnesses dant of his to confront waited opening argument. defendant against him or his coming up hear witnesses before our these Obviously trial. he did confront yesterday. with his version of truth present at his trial. witnesses and was you proven I I the case But submit reading of the comments And a reasonable I Henry Warren that told against James a comment clearly reveals that you prove'two ago. I would weeks credibility testimony. defendant’s on the Id. at 1307. It is well settled that when defendant was no Appeals held there The Court to remain silent and takes waives error, stating: defense, thereby in his the stand own prosecuting attor- subjects cross-examination himself to comment on ney nothing than fair story. And issue more credibility of his opening story reservation of his been defendant’s would involve whether the allegedly and his concocted tes- York and the statement federal courts are vested with merely reopen that he had assisted John discretion to timony case after defen- Harami, pawning pistol. People Williams’ dant has rested. See Williams (1983) parry thrust A.D.2d This is the kind of cus- N.Y.S.2d (mem.); Benham, jury argument. People tomary 160 N.Y. (1899); 55 N.E. 11 United States v. Id. (2d Cir.1984). Burger, 739 F.2d 809-10 I am confess that baffled some must If the were as im- statements colleagues’ arguments. my Judge Oakes proper and my colleagues as harmful as now states, example, that is perfectly “[i]t contend, defense counsel should have re- proper prosecutor to a for cross-examine quested permission the trial for put court portions about those of his testi- defendant the defendant back on the witness stand. indicia have of fabrication.” which of view the lack of merit in claim of at I contin- op. agree. Oakes 38. He then error, prejudicial request I doubt that such “[w]hen, ues, however, raises granted. telling would have been fact is 1) of specter fabrication the first time that defense counsel did not make the re- 2) summation; on without facts in evidence quest. 3) inference; support a manner am by I also directly Judge troubled casual attacks defendant’s Oakes’ trial, of judge’s treatment the trial “standard present during entire our lawyers instruction” that by comments begin ring. alarm bells When all three jury’s are not evidence and that the recollec present, are circumstances bells become tion events should “A I control. crucial shrill have read and sirens.” reread the assumption underlying prosecutor’s system by [the of trial and I statements heard neither jury] juries is will on, follow Judge the instructions goes bells nor sirens. Oakes given them judge.” Parker “Lawyers relating not raise innuendo Randolph, 2132, 442 credibility from the U.S. 99 S.Ct. bias or shadows of unliti- 2139, (1979) (quoted 60 713 gated L.Ed.2d closing facts for the first time in their Franklin, approval in Francis v. 471 arguments.” lawyers at If Id. 38-39. U.S. 307, 9, 1965, 9, 324 n. 105 S.Ct. n. litigating facts 1976 85 relating were not to credi- “ (1985)). L.Ed.2d 344 ‘In bility during the the absence of course I find it contrary, definitive imagine they studies we must doing. difficult what juries part assume that for the To lie. most under “fabricate” means to See Webstee’s Dictionary faithfully stand and follow instructions.’” ThiRd New International Johnson, 73, 85 14, Connecticut v. 460 specter pervaded n. fabrication the trial 14, S.Ct. 103 977 n. 74 opening day. Winder L.Ed.2d 823 its testified that (1983) Agard her; (quoting Traynor’s Chief sodomy Justice mo committed error, nograph 73-74, supra, harmless at said that he did not. ofOne them was 970-71). My 103 S.Ct. telling colleague’s not the truth. state- ment, specter fabrication repeat said, I already To what have I raised for first time on summation and the. absolutely believe is essential defen sup- were no there facts dants to be to hear the comments of port fabrication, inference of is without prosecution’s they witnesses so can basis in the record. respond to them and aid in own their de by my

I am colleagues’ troubled Gregorio, assertion fense. See United States v. (4th that Agard respond Cir.), denied, had no chance to the F.2d cert. prosecutor’s comments. “The normal func U.S. L.Ed.2d 298 explain tion of Moreover, rebuttal every juror or rebut evi with a modi dence party.” offered adverse United cum common sense must realize that this (2d Neary, error, therefore, States v. 733 F.2d Cir. is so. I find no 1984). The protects Sixth Amendment de pres comments about a. witnesses, fendant’s confront ence. “[Constitutional error occurs lawyers. Moreover, judges in prosecutorial both the New when the remarks were so following day they the trial in machine the made rendered prejudicial fundamentally compelling v. without a reason. unfair.” question Garofolo Cir.1986). (2d Coomb, 201, 206 804 F.2d Court, appeal argued When in our prose vigorous argument Forceful in, young two women came listened to the if on the evi is not forbidden based cutor Although and then left. had no Brown, 456 F.2d dence. States United were, way knowing pres- they who their denied, (2d Cir.) curiam), (per cert. the morals ence reminded me whatever 32 L.Ed.2d 684 complainants, of the two female also (1972); Smith, 778 F.2d United States rights recognize. that courts should Cir.1985). (2d miscarriage justice to call It would fundamentally My unfair. col state trial possible inferences

leagues’ discussions jury might ingenious but not

that a draw

persuasive. judges court and the Six state no er prejudicial found

district court below out nine

ror. Conviction on three counts days is not after four of deliberation

teen Although very strong prejudice. In re PAINEWEBBER INCORPORATED bound the statement of the we LIMITED PARTNERSHIPS Agard’s guilt Appellate proof Division that LITIGATION “overwhelming,” cases such as Alston was (3d Redman, 1237, Cir.1994), 34 F.3d RITTMASTER, on behalf of Rochelle denied, 1160, 1122, cert. 115 S.Ct. similarly and all others herself (1995), L.Ed.2d 1085 and Tanner v. Vin situated, Plaintiff-Appellee, (2d cent, Cir.1976), cert. F.2d denied, (1977), teach us that the follow L.Ed.2d 782 JACOBSON, Jacobson, Robert Vera of facts in that court’s ing brief statement Appellants, defer opinion must be accorded substantial ence: Group, Inc.; PaineWebber, PaineWebber complainant May testified that on Inc., Defendants-Appellees. head, gun the defendant held to her her, to kill her in the

threatened beat No. Docket 97-7540. forcing inter- course of her have anal Appeals, Court of United States compulsion.” “forcible Later at course Second Circuit. vic- emergency hospital, room of tim found to bruises on her arms Argued July 1997. eye legs, lip, a cut and a black so seriously that she had hemor- battered July Decided later, well rhages in it four to five weeks spots up floating day trial. addition, owning the defendant admitted to police. gun, which was recovered 199 A.D.2d at 606 N.Y.S.2d 239. IL, Joyce, Appel- Chicago, T. Edward sexually Miss Winder swore that she lants.

mistreated, indisputable clearly and the facts (Nich- Labaton, City York simple Edward New established that more than amorous Chúmeles, Taylor Isquith, E. Fred Ed- place. said that olas tete-a-tete taken She Finkelstein, Grossmann, gun Burton H. gun, with a ward she threatened counsel), Bershad, for Plaintiff- J. Agard’s possession. Agard’s David was found Appellee. abject apology answering found on Winder’s

Case Details

Case Name: Ray Agard v. Leonard Portuondo, Superintendent of Fishkill Correctional Facility

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 3, 1997

Citation: 117 F.3d 696

Docket Number: 336, Docket 96-2281

Court Abbreviation: 2d Cir.