United States v. Williams

11 M.J. 552, 1981 CMR LEXIS 778

• Court: U.S. Army Court of Military Review
• Decided: March 31, 1981
• Docket: CM 439928
• Status: Published

Opinions

OPINION OF THE COURT

CARNE, Senior Judge:

The appellant was tried by a military judge sitting as a general court-martial for the attempted murder of a fellow soldier by stabbing him repeatedly with a knife in violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880. He was convicted of the lesser included offense of aggravated assault by intentionally inflicting grievous bodily harm upon the named victim in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928. The convening authority approved the adjudged sentence providing for a dishonorable discharge, confinement at hard labor for five years, forfeiture of all pay and allowances and reduction to the grade of Private (El).

During the presentencing procedure the trial counsel introduced four exhibits evidencing pre-service civilian convictions of the appellant. As to each exhibit, the defense counsel offered no objection and they were admitted.

It is now asserted that it was error to admit the records of civilian convictions. We agree.

Paragraph 75, Manual for Courts-Martial, United States, 1969 (Revised edition), prescribes evidence which may be considered during the presentencing portion of the trial. The adverse information was not admissible under the authority of paragraph 75b (2) of the Manual since that paragraph pertains only to previous convictions by courts-martial. United States v. Cobb, 9 M.J. 786 (A.C.M.R.1980); United States v. Krewson, 8 M.J. 663 (A.C.M.R.1979), pet. granted on other grounds, 9 M.J. 36 (C.M.A. 1980). These records of civilian convictions would have been admissible under the provisions of paragraph 75d of the Manual if the information pertaining thereto had been included in the appellant’s personnel records. There is no showing that they were properly contained in his official personnel records. Accordingly, we conclude that the adverse information as introduced was not admissible under the provisions of paragraph 75d of the Manual.¹ However, in view of the compelling evidence of guilt which reflected an extremely vicious attack upon the victim resulting in some twenty stab wounds to his upper body, we conclude that the error did not prejudice the appellant.²

The findings of guilty and the sentence are affirmed.

Chief Judge RECTOR concurs.

1 . See United States v. Sisk, 45 C.M.R. 735, 737 n.2 (A.C.M.R.1972); Paragraph 2-20, Army Regulation 27-10, Military Justice, Legal Services (C16, 4 November 1975); Department of the Army Pamphlet 27-2, Analysis of Contents, Manual for Courts-Martial, United States, 1969 (Revised Edition) July 1970, page 13-6.

2 . The defense waived objection to the admission of the records. As we find no manifest injustice resulted from their consideration by the military judge, we will not disregard the waiver on appeal. United States v. Pinkney, 22 U.S.C.M.A. 595, 48 C.M.R. 219 (1974).