Portuondo v Agard

• Decision Date: 06 March 2000
• Docket Number: 981170
• Parties: LEONARD PORTUONDO, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, PETITIONER v. RAY AGARDSUPREME COURT OF THE UNITED STATES
• Court: U.S. Supreme Court

529 U.S. 61 117 F.3d 696 LEONARD PORTUONDO, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, PETITIONER v. RAY AGARD No. 98-1170 SUPREME COURT OF THE UNITED STATES Argued November 1, 1999 Decided March 6, 2000

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

Syllabus

Respondent was convicted on New York criminal charges after a trial that required the jury to decide whether it believed the testimony of the victim and her friend or the conflicting testimony of respondent. The prosecutor challenged respondent's credibility during summation, calling the jury's attention to the fact that respondent had the opportunity to hear all other witnesses testify and to tailor his own testimony accordingly. The trial court rejected respondent's objection that these comments violated his right to be present at trial. After exhausting his state appeals, respondent filed a petition for habeas corpus in federal court claiming, inter alia, that the prosecutor's comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers, and his Fourteenth Amendment right to due process. The District Court denied his petition, but the Second Circuit reversed.

Held:

1. The prosecutor's comments did not violate respondent's Fifth and Sixth Amendment rights. The Court declines to extend to such comments the rationale of Griffin v. California, 380 U.S. 609, in which it held that a trial court's instruction about a defendant's refusal to testify unconstitutionally burdened his privilege against self-incrimination. As a threshold matter, respondent's claims find no historical support. Griffin, moreover, is a poor analogue for those claims. Griffin prohibited the prosecution from urging the jury to do something the jury is not permitted to do, and upon request a court must instruct the jury not to count a defendant's silence against him. It is reasonable to expect a jury to comply with such an instruction because inferring guilt from silence is not always "natural or irresistible," id., at 380; but it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he has heard the testimony of those who preceded him. In contrast to the comments in Griffin, which suggested that a defendant's silence is "evidence of guilt," id., at 615, the prosecutor's comments in this case concerned respondent's credibility as a witness. They were therefore in accord with the Court's longstanding rule that when a defendant takes the stand, his credibility may be assailed like that of any other witness-a rule that serves the trial's truth-seeking function, Perry v. Leeke, 488 U.S. 272, 282. That the comments here were generic rather than based upon a specific indication of tailoring does not render them infirm. Nor does the fact that they came at summation rather than at a point earlier in the trial. In Reagan v. United States, 157 U.S. 301, 304, the Court upheld the trial court's recitation of an interested-witness instruction that directed the jury to consider the defendant's deep personal interest in the case when evaluating his credibility. The instruction in Reagan, like the prosecutor's comments in this case, did not rely on any specific evidence of actual fabrication for its application, nor did it come at a time when the defendant could respond. Nevertheless, the Court considered the instruction to be perfectly proper. Pp. 3-12.

2. The prosecutor's comments also did not violate respondent's right to due process. To the extent his due process claim is based upon an alleged burdening of his Fifth and Sixth Amendment rights, it has been disposed of by the determination that those Amendments were not directly infringed. Respondent also argues, however, that it was improper to comment on his presence at trial because New York law requires him to be present. Respondent points to the Court's decision in Doyle v. Ohio, 426 U.S. 610, for support. The Court held in Doyle that the prosecution may not impeach a defendant with his post-Miranda warnings silence because those warnings carry an implicit "assurance that silence will carry no penalty." Id., at 618. No promise of impunity is implicit in a statute requiring a defendant to be present at trial, and there is no authority whatever for the proposition that the impairment of credibility, if any, caused by mandatory presence at trial violates due process. Pp. 12-14.

117 F.3d 696, reversed and remanded.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.

Opinion of the Court

Justice Scalia delivered the opinion of the Court.

In this case we consider whether it was constitutional for a prosecutor, in her summation, to call the jury's attention to the fact that the defendant had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly.

I

Respondent's trial on 19 sodomy and assault counts and 3 weapons counts ultimately came down to a credibility determination. The alleged victim, Nessa Winder, and her friend, Breda Keegan, testified that respondent physically assaulted, raped, and orally and anally sodomized Winder, and that he threatened both women with a handgun. Respondent testified that he and Winder had engaged in consensual vaginal intercourse. He further testified that during an argument he had with Winder, he struck her once in the face. He denied raping her or threatening either woman with a handgun.

During summation, defense counsel charged Winder and Keegan with lying. The prosecutor similarly focused on the credibility of the witnesses. She stressed respondent's interest in the outcome of the trial, his prior felony conviction, and his prior bad acts. She argued that respondent was a "smooth slick character " who had an answer for everything," App. 45, and that part of his testimony "sound[ed] rehearsed," id., at 48. Finally, over defense objection, the prosecutor remarked:

"You know, ladies and gentlemen, unlike all the other witnesses in this case the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies.

. . . . .

"That gives you a big advantage, doesn't it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence?

. . . . .

"He's a smart man. I never said he was stupid" . He used everything to his advantage." Id., at 49.

The trial court rejected defense counsel's claim that these last comments violated respondent's right to be present at trial. The court stated that respondent's status as the last witness in the case was simply a matter of fact, and held that his presence during the entire trial, and the advantage that this afforded him, "may fairly be commented on." Id., at 54.

Respondent was convicted of one count of anal sodomy and two counts of third-degree possession of a weapon. On direct appeal, the New York Supreme Court reversed one of the convictions for possession of a weapon but affirmed the remaining convictions. People v. Agard, 199 App. Div. 2d 401, 606 N. Y. S. 2d 239 (2d Dept. 1993). The New York Court of Appeals denied leave to appeal. People v. Agard, 83 N. Y. 2d 868, 635 N. E. 2d 298 (1994).

Respondent then filed a petition for habeas corpus relief in federal court, claiming, inter alia, that the prosecutor's comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers. He 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. 117 F.3d 696 (1997), rehearing denied, 159 F.3d 98 (1998). We granted certiorari. 526 U.S. 1016 (1999).

II

Respondent contends that the prosecutor's comments on his presence and on the ability to fabricate that it afforded him unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with the witnesses against him, see Illinois v. Allen, 397 U.S. 337 (1970); Pointer v. Texas, 380 U.S. 400 (1965), and his Fifth and Sixth Amendment rights to testify on his own behalf, see Rock v. Arkansas, 483 U.S. 44 (1987). Attaching the cost of impeachment to the exercise of these rights was, he asserts, unconstitutional.

Respondent's argument boils down to a request that we extend to comments of the type the prosecutor made here the rationale of Griffin v. California, 380 U.S. 609 (1965), which involved comments upon a defendant's refusal to testify. In that case, the trial court instructed the jury that it was free to take the defendant's failure to deny or explain facts within his knowledge as tending to indicate the truth of the prosecution's case. This Court held that such a comment, by "solemniz[ing] the silence of the accused into evidence against him," unconstitutionally "cuts down on the privilege [against self-incrimination] by making its assertion costly." Id., at 614.

We decline to extend Griffin to the present context. As an initial matter, respondent's claims have no historical foundation, neither in 1791,...