No.
08-0707/AF.
U.S.
v. Calvin J. WHEELER Jr.
CCA 36796.
On consideration of the petition for grant of
review of the decision of the United States Air Force Court of Criminal
Appeals, it is noted that the Court of Criminal Appeals has not had the
opportunity to complete its review of this case under Article 66(c),
Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), after the
convening
authority took action on October 3, 2008.
See Boudreaux v.
U.S.
Navy-Marine Corps
C.M.R.,
28 M.J. 181 (C.M.A. 1989). Accordingly,
it is, ordered that said petition is hereby granted on the following
issue:
APPELLANT WAS
CONVICTED OF
RAPE AND ADULTERY BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE. DURING THE COURT-MARTIAL, THE PROSECUTION'S
EXPERT PSYCHOLOGIST PROVIDED HUMAN LIE DETECTOR TESTIMONY THAT
BOLSTERED THE
ALLEGED VICTIM'S RAPE ACCUSATION. BASED
ON THIS TESTIMONY, THE AIR FORCE COURT OF CRIMINAL APPEALS SET ASIDE
THE RAPE
CONVICTION. HOWEVER, IT AFFIRMED THE
ADULTERY CONVICTION. DID THE COURT ERR
SINCE THE MEMBERS MUST HAVE BASED THEIR ADULTERY CONVICTION ON THE
FORCE AND CONSENT FINDINGS OF RAPE THAT WERE SET ASIDE?
The record of
trial is
returned to the Judge Advocate General of the Air Force for remand to
the Air
Force Court of Criminal Appeals for consideration of the granted issue
and
completion of its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867
(2000), shall apply.