17 July 2007, Navy-Marine Corps Court of Criminal Appeals released U.S. v. Rodriguez, No. 990997, unpublished op. (N.M.Ct.Crim.App. 17 Jul 2007). Appellant claimed that the military judge erred ruling that the members could be informed of the appellant’s conviction of sexual offenses against under-12 year old JR in under-16 year old MR. Appellant’s first court-martial, where that court-martial’s sentence with regard to JR had been vacated and returned for a sentencing rehearing, and both findings and sentencing rehearing with regard to crimes against the
The Court held: (1) before the military judge ruled on the admissibility of the prior conviction, Appellant waived Rules for Court-Martial 810(a)(3) and Military Rules of Evidence protections by explicitly placing the results of the prior conviction in front of the members in the defense’s opening statement, and by cross-examining and attempting to impeach JR about the substantive offenses that underlaid the prior conviction. Judge Couch wrote: “The Government and the defense must each ‘make choices as the trial progresses,’ but they do so knowing those choices may open the door to evidence they otherwise wish to keep out.” In any case, the court noted that the evidence of Appellant’s sexual molestation of JR–despite Appellant’s waiver of the issue–was clearly admissible as probative of propensity under Mil.R.Evid. 414.
(2) The court also held that the use of the word “conviction” to describe the prior court-martial was accurate, despite R.C.M. 1001(b)(3)(A)’s statement that a “conviction” occurs “when a sentence has been adjudged.” Here, of course, the sentence had been vacated. The court held that “In light of the trial defense counsel’s opening statement and other trial tactics, the legal nuance between the terms ‘conviction’ and ‘found guilty’ as used by the military judge and the Government trial counsel is no real distinction in the mind of a layperson serving as a court-martial member.” Any error, the court held, was harmless beyond a reasonable doubt.