United States v. Whitfield

35 M.J. 535, 1992 WL 153949
CourtU.S. Army Court of Military Review
DecidedJune 29, 1992
DocketACMR 9100615
StatusPublished
Cited by1 cases

This text of 35 M.J. 535 (United States v. Whitfield) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Whitfield, 35 M.J. 535, 1992 WL 153949 (usarmymilrev 1992).

Opinion

OPINION OF THE COURT

De GIULIO, Senior Judge:

Appellant was tried by a military judge sitting as a general court-martial. Con[536]*536trary to his pleas, he was found guilty of assault with a means or force likely to produce grievous bodily harm (fists) and theft of services, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 928 and 934 [hereinafter UCMJ], He was sentenced to a dishonorable discharge, confinement for 18 months, and forfeiture of $500.00 pay per month for 18 months. The convening authority approved the sentence.

Appellant alleges that the evidence is insufficient to support the findings of guilty of aggravated assault because he did not use force likely to inflict grievous bodily injury, that he was unfairly prejudiced by failure to join all known charges in a single trial, that he was denied effective post-trial assistance of counsel, and that he is entitled to a new pretrial advice and post-trial recommendation because those documents improperly reference his race. In related assertions, appellant also asserts that the court was without jurisdiction to prosecute him and that the failure to include the court-martial convening order, dated 14 November 1990, in the record of trial renders the record incomplete and results in a nonverbatim transcript. We find these assertions without merit and affirm the findings of guilty and the sentence.

Appellant employed a taxi to take him from Wiesbaden to Mainz in Germany. Upon the taxi’s arrival at the address given by appellant, appellant indicated that he did not have sufficient money to pay the fare but would borrow the money from a friend inside the building. The taxi driver accompanied appellant to the building. To gain entry to the building, appellant was required to alert a resident by a buzzer. On his first attempt, the resident stated that she did not know him. Subsequently, a resident mistakenly thought appellant was one “Martin” and permitted access to the building. After appellant and the taxi driver took two flights of stairs, appellant insisted on using the elevator. While waiting for the elevator, the taxi driver received a blow to the head causing him to fall to the floor. Appellant then struck the driver eight to thirteen times on the head with his fists. After a struggle, appellant ran away but lost his shoe. Later, appellant was apprehended for an unauthorized absence. He implicated himself in the incident with the taxi driver which was being investigated by German police. He was tried by special court-martial for two unauthorized absences, found guilty and sentenced to a bad-conduct discharge, confinement for two months, forfeiture of $200.00 pay per month for two months, and reduction to Private El. Later, appellant was tried by a second court-martial for the charges now before us.

I.

Appellant asserts that, in this case, the evidence of the use of fists alone is not sufficient to prove the use of force likely to inflict death or grievous bodily harm. He emphasizes that the injuries to the taxi driver were only minor “such as a bruise, slight swelling, and a small cut on the head not requiring stitches or other medical treatment.” On the other hand, government appellate counsel contends that it is not the injuries inflicted that is controlling but whether the means or force used was likely to produce grievous bodily harm. Government counsel further contend that this is a factual determination which has been decided against appellant and which should not be disturbed.

It has long been held that fists can be a means or force likely to produce grievous bodily harm. United States v. Vigil, 13 C.M.R. 30 (C.M.A.1953); United States v. Keene, 50 C.M.R. 217 (A.C.M.R.1975). The nature of the particular means or force is important but not conclusive. Vigil, 13 C.M.R. at 32. “The crucial question is whether its use, under the circumstances of the case, is likely to result in death or grievous bodily harm____ Persuasive evidence upon this question is found in the nature of the means or force itself, the manner of its use, the parts of the body toward which it is directed, and where applicable, the extent of the injuries inflicted.” Vigil, 13 C.M;R. at 32-33 (citations omitted).

[537]*537In the case before us, the victim was initially hit in the head causing him to fall to the floor. He was then struck repeatedly in the head by appellant with his fists. The extent of the injuries are not factually controlling. See United States v. Johnson, 30 MJ. 53 (C.M.A.1990). From the evidence, we conclude that the purpose of the assault with fists was to render the victim incapable of resisting appellant’s escape or giving chase. Under the circumstances of this case, we are convinced that the appellant’s fists were a means or force likely to produce death or grievous bodily harm.

Testing for legal sufficiency, viewing the evidence in a light most favorable to the government, we hold that a reasonable factfinder could have found all essential elements of the offense beyond as reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Testing for factual sufficiency, after weighing the evidence of record and making allowances for not having seen or heard the witnesses, we are convinced beyond a reasonable doubt of appellant’s guilt of the aggravated assault. See UCMJ art. 66(c), 10 U.S.C. § 866(c); United States v. Turner, 25 M J. 324 (C.M.A.1987).

II.

Appellant asserts that he was unfairly prejudiced by the failure to join all known charges in a single trial.

Manual for Courts-Martial, United States, 1984 [hereinafter MCM, 1984], Rule for Courts-Martial 307(c)(4) [hereinafter R.C.M.], provides, “Charges and specifications alleging all known offenses by an accused may be preferred at the same time.” R.C.M. 601(e)(2) provides, “In the discretion of the convening authority, two or more offenses against an accused may be referred to the same court-martial for trial, whether serious or minor or both, regardless of whether related.” The use of the words “may” and “in the discretion” leads us to conclude that trial of an accused for all known offenses at a single trial is not mandatory. We recognize the policy that ordinarily all known charges should be tried at a single trial; and, once joined at a single trial, severance should only be permitted to prevent a manifest injustice. See R.C.M. 906(b)(10) and discussion; R.C.M. 906(b)(10) analysis, MCM, 1984, app. 21 at A21-50.

It is noted that at his trial appellant moved to have the charges and specifications dismissed for lack of speedy trial, contending that the government was in possession of substantial information concerning these offenses but did not prefer charges until after appellant’s first trial was concluded. In his findings of fact on the speedy trial issue, the military judge found that the unit commander was not in possession of substantial information in time to have reasonably investigated these offenses and follow required procedures in order to bring the new charges before the prior court-martial.

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Cite This Page — Counsel Stack

Bluebook (online)
35 M.J. 535, 1992 WL 153949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-whitfield-usarmymilrev-1992.