United States v. Rodriguez-Rivera

63 M.J. 372, 2006 CAAF LEXIS 1059, 2006 WL 2332933
CourtCourt of Appeals for the Armed Forces
DecidedAugust 9, 2006
Docket05-0270/NA
StatusPublished
Cited by75 cases

This text of 63 M.J. 372 (United States v. Rodriguez-Rivera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rodriguez-Rivera, 63 M.J. 372, 2006 CAAF LEXIS 1059, 2006 WL 2332933 (Ark. 2006).

Opinions

Judge ERDMANN

delivered the opinion of the court.

Personnelman Second Class Roberto Rodriguez-Rivera was convicted at a general court-martial of making false official statements, committing forcible sodomy on a child under twelve, taking indecent liberties with a female under the age of sixteen, and committing indecent acts with a female under the age of sixteen, in violation of Articles 107, 125 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 925, 934 (2000). He was sentenced to a reduction in grade to E-l, forfeiture of all pay and allowances, confinement for twelve years and a dishonorable discharge. The convening authority approved the sentence and the United States Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence. United States v. Rodriguez-Rivera, 60 M.J. 843, 848-49 (N.M.Ct.Crim.App. 2005).

We granted review of the following issues: 1

I.
WHETHER TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY (1) VIOLATING THE MILITARY JUDGE’S ORDERS REGARDING WITNESS SEQUESTRATION; (2) BY IMPROPERLY COACHING THE SIX-YEAR-OLD COMPLAINING WITNESS DURING HER DIRECT TESTIMONY; (3) BY PURPOSEFULLY ALLOWING OTHER WITNESSES TO IMPROPERLY COACH THE COMPLAINING WITNESS DURING HER DIRECT TESTIMONY; (4) BY FAILING TO BE CANDID WITH THE COURT-MARTIAL REGARDING THE COACHING OF THE WITNESS BY TRIAL COUNSEL AND OTHER WITNESSES; AND (5) BY FAILING TO BE CANDID WITH THE COURT-MARTIAL ABOUT NOTES PASSED FROM A PROSECUTION WITNESS DURING THE DEFENSE’S CASE.
II.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ADMITTING OVER DEFENSE OBJECTION, THE INADMISSIBLE HEARSAY STATEMENTS OF THE COMPLAINANT WITNESS.
[376]*376III.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY GRANTING THE GOVERNMENT’S CHALLENGE FOR CAUSE OF CHIEF ELECTRONIC TECHNICIAN DANIEL J. [ABEYTA].
IV.
WHETHER THE STAFF JUDGE ADVOCATE ERRED BY FAILING TO SERVE APPELLANT WITH A LETTER FROM TRIAL COUNSEL TO THE CONVENING AUTHORITY THAT NEGATIVELY CHARACTERIZED APPELLANT’S UNSWORN STATEMENT.
V.
WHETHER THE EVIDENCE PRESENTED ON THE MERITS WAS LEGALLY INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT TOOK INDECENT LIBERTIES WITH JK BY WATCHING PORNOGRAPHIC MOVIES WITH JK.
VI.
WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE COMPLETION OF THE FIRST LEVEL OF APPELLATE REVIEW TOOK MORE THAN SIX YEARS.

BACKGROUND

From August 1997 through December 1997, Rodriguez-Rivera and his wife babysat for their neighbor’s child, JK, at Royal Air Force Station, West Ruislip, England. In March of 1998, when JK was five, she disclosed to her parents that she had been sexually abused by Rodriguez-Rivera. The day following this disclosure, JK’s mother arranged a meeting with the base Family Advocacy Representative that was also attended by a Naval Criminal Investigative Service (NCIS) agent. Appellate Exhibit LV reflects that during this meeting JK stated that on numerous occasions Rodriguez-Rivera had sucked and kissed her “pee pee”, she had sucked his “pee pee”, he had showered with her and rubbed soap on her, and he had masturbated in front of her. In addition, JK also told the NCIS agent that she had watched adult movies with Rodriguez-Rivera while in his bed. An initial medical examination of JK disclosed no evidence of any trauma to her vagina.

During a NCIS interview, Rodriguez-Rivera denied having any improper or sexual contact with JK. He did admit to possessing pornographic videos and allowing JK to take baths while he was babysitting her. A search of Rodriguez-Rivera’s home resulted in the seizure of pornographic videos. Other facts relevant to the disposition of the issues are set forth in the Discussion section.

DISCUSSION

I. PROSECUTORIAL MISCONDUCT

Rodriguez-Rivera alleges that the following actions by trial counsel constituted pros-ecutorial misconduct: (1) violation of the military judge’s orders regarding witness sequestration; (2) improperly coaching the victim; (3) allowing other witnesses to coach the victim; (4) failing to be candid with the court-martial regarding the alleged witness coaching; and (5) failing to be candid with the court-martial about notes received from a prosecution witness during the defense case. We will first consider the initial four allegations pertaining to witness coaching and then address the final allegation.

A. Witness sequestration and witness coaching allegations

1. Factual Background

JK was six years old at the time of trial. JK’s testimony on direct examination was not consistent with her earlier statements to her parents and the Family Advocacy Representative. At trial JK testified only that Rodriguez-Rivera had sucked her “pee pee” more than one time and that she had seen a “sex movie ... [a]t Rod’s house” but that Rodriguez-Rivera had done nothing more. Following repeated attempts by the trial counsel to elicit additional testimony, the defense [377]*377counsel requested an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), session at which he asked the military judge to prohibit the Government from pursuing this line of questioning as JK had testified that Rodriguez-Rivera had not done anything else to her. The military judge sustained the defense objection on the ground that the questions had been asked and answered. Following that ruling, trial counsel asked the military judge for permission to impeach JK’s testimony with her prior inconsistent statements. Defense counsel then requested a recess to consider that issue.

Following the recess defense counsel expressed concern to the military judge that trial counsel had been in a room with JK during the break. The assistant trial counsel explained that JK was concerned about the delay in her testimony and asked whether she had done something wrong and that he had advised her that she had not done anything wrong but she might have to continue her testimony. The military judge then granted a defense request to voir dire JK about her understanding of what had been said to her during the break.

During voir dire the defense asked JK what had happened during the break and JK responded that she had gone to the trial counsel’s office with her “momma” and “daddy.” She said that the assistant trial counsel “wanted [her] to tell him the rest of the story” and that the trial counsel told her not to be scared. JK testified that after the trial counsel left the room her parents told her she had not told the entire story and that she needed to go back into court and say more. She also said they talked to her about some of the things that had happened to her.

After JK’s voir dire defense counsel argued to the military judge that JK should not be allowed to testify further before the members because she was influenced by what happened during the break.

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Cite This Page — Counsel Stack

Bluebook (online)
63 M.J. 372, 2006 CAAF LEXIS 1059, 2006 WL 2332933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodriguez-rivera-armfor-2006.