Agard v. Portuondo

• Decision Date: 03 July 1997
• Docket Number: No. 336,D,336
• Parties: Ray AGARD, Petitioner-Appellant, v. Leonard PORTUONDO, Superintendent of Fishkill Correctional Facility, Respondent-Appellee. ocket 96-2281.
• Court: U.S. Court of Appeals — Second Circuit

Page 696

117 F.3d 696

Ray AGARD, Petitioner-Appellant, v. Leonard PORTUONDO, Superintendent of Fishkill Correctional

Facility, Respondent-Appellee.

No. 336, Docket 96-2281.

United States Court of Appeals, Second Circuit.

Argued Oct. 24, 1996.

Decided July 3, 1997.

Beverly Van Ness, New York City, for Petitioner-Appellant.

Ellen C. Abbot, Assistant District Attorney, Queens County, Kew Gardens, NY (Richard A. Brown, District Attorney, Steven J. Chananie and Robin A. Forshaw, Assistant District Attorneys, of counsel), for Respondent-Appellee.

Before: OAKES, VAN GRAAFEILAND, and WINTER, Circuit Judges.

OAKES, Senior Circuit Judge:

Appellant Ray Agard appeals from the denial of the writ of habeas corpus dated March 15, 1996, and entered March 21, 1996, in the United States District Court for the Eastern District of New York, Reena Raggi, Judge.

Petitioner was convicted on February 25, 1991, in the Supreme Court of the State of New York, Queens County, Justice Arthur J. Cooperman presiding, of first degree sodomy and two counts of third degree weapons possession. He was sentenced to concurrent terms of 10 to 20 years' and 3 1/2 to 7 years' imprisonment. Following the December 20, 1993, dismissal of one of the weapons possession counts and affirmance on the other counts, People v. Agard, 199 A.D.2d 401, 402, 606 N.Y.S.2d 239, 240 (2d Dep't 1993), Agard's application for leave to appeal was denied, Judge Ciparick, People v. Agard, 83 N.Y.2d 868, 613 N.Y.S.2d 129, 635 N.E.2d 298 (1994). Agard then petitioned for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition, rejecting Agard's claims that his Sixth and Fourteenth Amendment rights had been violated at trial, but granted him a certificate of probable cause, permitting him to pursue this appeal. Transcript of Civil Cause for Status Conference/Hearing at 23, Agard v. Portundo (sic), No. CV-95-2239 (E.D.N.Y. March 15, 1996) (hereafter "District Court Transcript"). Agard now appeals to this court, asserting that the trial court erred in 1) refusing to permit defense counsel to question the victim about her prior sexual history; 2) limiting Agard's expert's testimony regarding the amount of force required to sustain rectal trauma during anal sodomy; and 3) permitting the prosecution to imply in closing arguments that petitioner, by virtue of being present in the courtroom throughout trial, gained the unique opportunity to fabricate his testimony to meet the state's evidence. We find no error on the first point. The second ruling, while erroneous, does not constitute harmful or constitutional error. The trial court's ruling on the last point, however, infringes upon Agard's constitutional rights as guaranteed by the Fifth, Sixth and Fourteenth Amendments, and constitutes harmful error. We therefore reverse the district court and remand.

I Facts

Agard met Nessa Winder and Breda Keegan, the complainants in the criminal action, at a Manhattan bar and night club on Friday, April 27, 1990. Petitioner's testimony and that of his friend and defense witness Adolph Kiah largely--though not entirely--squares with the complainants' story about the events of the following weekend. The witnesses agree that Agard and Winder started a sexual relationship in the wee hours of Saturday morning; spent part of Saturday afternoon on the beach with Keegan and Agard's roommate Freddy; and returned to Agard's apartment for a nap, but stayed until morning. The People and petitioner, however, presented conflicting stories about the extent of that sexual relationship, as well as what occurred a week later on the morning of Sunday, May 6, 1990. The People alleged that the petitioner committed an assault and, using threats and violence, eight acts of rape and forcible sodomy against Winder. Agard, by contrast, testified that he and Winder woke up after a night out on the town, engaged in consensual vaginal intercourse and then fell back asleep for several hours, when upon reawakening a quarrel erupted over the lateness of the hour during which she scratched his lip and he struck her.

A. The People's Case

The People's case consisted of testimony from police investigators, medical experts and Keegan and Winder. At the time of trial, Winder and Keegan were both twenty-three year old women, and friends of eight years. They each moved to the United States from Ireland in 1989, and soon became roommates, sharing a Brooklyn apartment with two other people. On the evening of April 27th, Keegan and Winder went to the Cavacanum, a bar in lower Manhattan. Winder recalled Agard approaching the women and offering to buy them drinks. He was "friendly" and the three went together downstairs to the club's dance area. Agard later invited Winder back to his apartment and she accepted. As she recalled, they were getting along "very well." Before they departed, Agard gave Keegan the telephone number to his apartment so she could call to say she had made it home safely.

Agard shared the top floor of a house in Queens with three roommates. Their landlady occupied the ground-floor apartment. Winder was introduced to Agard's roommate Freddy. Agard, who had earlier remarked that he carried a gun when riding the subway, showed Winder an automatic handgun kept in his closet. They then watched "blue" movies depicting mainly anal intercourse. Winder recalled Agard "mentioning" anal intercourse and "motioning that way" later that night when the two had sex, but she told him that she was not "into it" and "just said no." Winder testified that they did not engage in anal intercourse on that day, but did engage in consensual vaginal and oral sex before falling asleep. In the morning, they had intercourse again.

After a trip to a beach on Staten Island with Freddy and Keegan, Agard and Winder returned to Agard's apartment where they spent the night. Winder testified that she awoke at midnight, hoping to return to the Cavacanum where she and Agard had planned to meet Keegan, but Keegan could not be reached by phone and Agard did not want to go out again. After Agard attempted to initiate sex, Winder explained that, because she was expecting a boyfriend from England, she felt "we shouldn't go on like this." Winder testified that they did not engage in sexual relations that night.

The following week Agard made several attempts to contact Keegan and Winder. He suggested that he have dinner on Thursday night with Keegan, whose job was located near Agard's, but Keegan was not home when he called her to arrange the date. On Saturday, Agard called the women several times to see if they wanted to meet again at the Cavacanum. After he said that he would not call again, the women called him and agreed to meet at the club.

The women arrived late and found Agard, who was "short" with them, and Freddy. The four drank and talked for several hours. Cocaine was also used by at least some members of the party, including Winder. Winder testified that she eventually became drunk and blacked out: the last thing she recalled from that evening was Agard's friend Kiah arriving and the group making plans to go to another club. Keegan testified that Winder, although drunk and tired, was still "walking and talking" even after the time of her memory lapse. Keegan explained that she, Winder, Agard, Freddy, and Kiah, along with two other women who needed a ride, left for the other club in Kiah's car. On the way, Winder sat on Agard's lap in the front seat, but was not physically affectionate because she was asleep.

Only the two women passengers were allowed into the second club which was closing up when the group arrived. The party of five moved on to a bar in another neighborhood where they continued to drink. Keegan recalls that Winder was asleep or falling asleep, and did not even drink her drink. Sometime between 4:00 and 4:30 in the morning, the party left the bar. Keegan recalls wanting to return to her apartment in Brooklyn with Winder, but at Agard's suggestion the group returned to his apartment.

Kiah and Freddy left to buy beer while Agard let the women into his apartment. They settled into Agard's bedroom. Keegan testified that Winder immediately fell asleep, fully-clothed, on Agard's bed. When Keegan indicated that she wanted to call a cab, Agard responded that "he had sent his friends for beer and the least [they] could do is stay to have a beer after he had gone to that amount of trouble." According to Keegan, Agard became verbally abusive and threatening. He called her "Gaelic," told her to get her "monkey ass out of the house," said "he was going to smash [her] face in," and ordered her to "shut the fuck up."

He then went over to a chest of drawers against the wall and took out a gun. After clicking a cartridge into the handle, Agard placed the gun against Keegan's head, saying, "I'm going to give you three seconds to shut up." Agard then put the gun back into the drawer and continued to "abuse" Keegan until Kiah and Freddy returned with beer. Agard, by Keegan's recollection, told them "to get the bitch out of the house or he was going to hurt her...."

Keegan asked Agard to follow her into Freddy's room so they could discuss what was making him so mad. They moved into the other room where Agard continued to threaten her, saying that she would "never leave the house alive" and that she could go "if you (Keegan) give both my friends head." Agard continued to change his mind, ordering Keegan to leave and then telling her to stay in Freddy's room. Keegan pleaded to see Winder, but when she was allowed into the bedroom Winder could not be awakened. Returning to the kitchen, Keegan found Kiah preparing to leave. Although initially reluctant, Keegan eventually decided to leave with Kiah. As she headed out the door of Agard's apartment and down the stairs, Keegan brushed by Agard, who turned and grabbed her around the neck. Keegan screamed, and he let her go, cursing her for getting him...