Portuondo v. Agard

529 U.S. 61 (2000)

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Nature of the Case

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Facts

Agard (D) was on trial for sodomy, assault, and three weapons counts. The alleged victim and her friend testified that D assaulted, raped, orally and anally sodomized her, and threatened both of them with a handgun. D testified that he and the victim had consensual intercourse and that during an argument he had with the victim, he struck her in the face. D denied raping her or threatening either woman with a handgun. During summation, defense counsel called the victim and her friend liars. The prosecutor stressed D’s prior felony conviction, his prior bad acts, that part of his testimony sounded rehearsed, that he had the benefit to sit in the courtroom and listen to the testimony of all the other witnesses before he testified. This latter statement along with the other statements was objected to. The trial court then rejected D’s claim that the latter comments violated D’s right to be present at a trial. The court held that D’s status as the last witness was a matter of fact and that his presence during the trial and the advantage this afforded him may fairly be commented on. D was convicted. D then filed a petition for habeas corpus relief claiming that the prosecutor's comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers. D further claimed that the comments violated his Fourteenth Amendment right to due process. The District Court denied the petition in an unpublished order. A divided panel of the Second Circuit reversed, holding that the prosecutor's comments violated respondent's Fifth, Sixth, and Fourteenth Amendment rights.