IN THE CASE OF
UNITED STATES, Appellee
v.
Larry R. HOPKINS, Senior Master Sergeant
U.S. Air Force, Appellant
No. 01-0739
Crim. App. No. 33937
United States Court of Appeals for the Armed Forces
Argued January 22, 2002
Decided April 12, 2002
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and BAKER, JJ., and SULLIVAN, S.J.,
joined.
Counsel
For Appellant: Major Jeffrey A. Vires (argued); Lieutenant Colonel Beverly
B. Knott and Lieutenant Colonel Timothy W. Murphy (on brief).
For Appellee: Major John D. Douglas (argued); Colonel Anthony P. Dattilo (on
brief); Lieutenant Colonel Lance B. Sigmon.
Military Judge: Howard P. Sweeney
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Hopkins, No. 01-0739/AF
Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, pursuant to mixed pleas, of
assault, assault consummated by a battery, falsifying a visa
application, making and uttering bad checks, dishonorable
failure to pay just debts, adultery, and bigamy, in violation of
Articles 128 and 134, Uniform Code of Military Justice, 10 USC
§§ 928 and 934. He was sentenced to confinement for one year
and reduction to E-4. The convening authority approved the
sentence, and the Court of Criminal Appeals affirmed. 55 MJ 546
(2001).
On appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED BY HOLDING
THAT AN ACCUSED'S EXPRESSION OF REMORSE WAS
NOT A WHEELER FACTOR AND REFUSING TO
INSTRUCT THE MEMBERS THAT APPELLANT'S
EXPRESSION OF REMORSE COULD BE CONSIDERED A
MATTER IN EXTENUATION AND MITIGATION.
For the reasons set forth below, we affirm.
I. BACKGROUND
At the time of trial, appellant was a Senior Master
Sergeant (E-8), with over twenty-two years of service. His
sentencing case included evidence in extenuation and mitigation,
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United States v. Hopkins, No. 01-0739/AF
including awards, decorations, and positive evaluations.
Appellant also exercised his right under RCM 1001(c)(2)(C),
Manual for Courts-Martial, United States (2000 ed.),1 to make an
unsworn statement, which included observations such as, “I have
made a lot of mistakes and poor decisions,” “I have strayed so
far from who I really am,” “I lost my discipline and my self-
control,” and “I took many actions which I now regret.” He
stated that he took “full responsibility” for his actions,
expressed sorrow, and apologized to his unit, his commander, his
friends, and his family.
During a session under Article 39(a), UCMJ, 10 USC
§ 839(a), concerning proposed instructions, defense counsel
asked the military judge to instruct the panel regarding
appellant’s “expression of remorse.” Trial counsel objected,
and the military judge denied the defense request.
The military judge provided standard instructions on
sentencing, including an instruction to “consider all matters in
extenuation and mitigation as well as those in aggravation,
whether they were introduced before or after your findings.”
His instructions highlighted numerous factors for the members to
consider, which were largely drawn from the nonbinding guidance
in the Military Judges’ Benchbook at 71-72 (Dept. of the Army
1
All Manual provisions are identical to the ones in effect at the time of
appellant's court-martial.
3
United States v. Hopkins, No. 01-0739/AF
Pamphlet 27-9 (Sept. 1996)). He specifically instructed the
members to consider appellant’s unsworn statement. He added
that an “unsworn statement is an authorized means for an accused
to bring information to the attention of the court and must be
given appropriate consideration.” In addition, the military
judge provided detailed guidance on the differences between
sworn testimony and an unsworn statement.
The prosecution’s closing argument briefly referred to the
unsworn statement, noting that appellant had “expressed his own
form of mea culpa.” The prosecution cited other factors for the
members to consider when adjudging the sentence, particularly
the nature of the offenses and the impact on the Air Force.
Defense counsel’s closing argument also referred briefly to
appellant’s unsworn statement and asked the members to take into
account appellant’s recognition that he had made “poor
decisions” and “mistakes,” and that he was “responsible for
those decisions.” Defense counsel focused on appellant’s record
of service and performance, as well as the financial impact that
a sentence might have on his family.
The military judge instructed the members that the maximum
punishment included confinement for forty-four years and three
months, reduction to pay grade E-1, forfeiture of all pay and
allowances, and a dishonorable discharge. The prosecution
argued for a sentence that included four years’ confinement,
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United States v. Hopkins, No. 01-0739/AF
reduction to pay grade E-1, and a dishonorable discharge. The
members sentenced appellant to confinement for one year and
reduction to pay grade E-4. The sentence did not include
forfeitures or a punitive discharge.
II. DISCUSSION
RCM 1005(a) requires the military judge to “give the
members appropriate instructions on sentence.” RCM 1005(e)(5)
provides that such instructions shall include a statement that
the members should consider certain designated matters,
including all matters in extenuation and mitigation. Under
United States v. Wheeler, 17 USCMA 274, 277, 38 CMR 72, 75
(1967), the military judge has a “duty . . . to tailor his
instructions on the sentence to the law and the evidence, just
as in the case of prefindings advice.” See RCM 1005(e)(5)
Discussion; Drafters' Analysis of RCM 1005(e)(5), Manual, supra
at A21-76; para. 76b(1), Manual for Courts-Martial, United
States, 1969 (Rev. ed.); Analysis of Contents, Manual for
Courts-Martial, United States, 1969, Revised Edition at 13-9
(Dept. of the Army Pamphlet 27-2 (July 1970)).
The sentencing instructions of a military judge are
reviewed for abuse of discretion. See United State v. Greaves,
46 MJ 133 (1997). The military judge has considerable
discretion in tailoring instructions to the evidence and law.
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United States v. Hopkins, No. 01-0739/AF
The decision as to how that discretion should be applied to
statements of an accused, such as expressions of remorse,
regret, or apology, depends on the facts and circumstances of
each particular case. See id. at 139.
Under the facts and circumstances of the present case, we
conclude that the approach of the military judge did not
constitute an abuse of discretion. Appellant's remarks were
made in the course of an unsworn statement. Such a statement is
not made under oath, is not subject to cross-examination, and is
not subject to the normal restrictions of the rules of evidence
-- all of which argues for broad discretion in the military
judge when determining how to tailor instructions to address an
unsworn statement. Cf. United States v. Satterly, 55 MJ 168,
171 (2001), and cases cited therein (scope of discretion
regarding requests to make a second sworn statement). Moreover,
appellant was the only defense witness on sentencing, and his
statement was relatively brief. His expressions of remorse,
regret, and apology were clear and direct and did not refer to
unique or unusual facts that might have been overlooked by the
members during sentencing deliberations. Although both the
prosecution and defense referred to appellant's expressions in
their closing arguments, neither placed significant reliance on
his unsworn statement.
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United States v. Hopkins, No. 01-0739/AF
In contrast to Wheeler, where "[n]ot a word was said about
the evidence in mitigation or aggravation," and where only an
instruction on the maximum authorized sentence was given, 17
USCMA at 276, 38 CMR at 74, the military judge in the present
case specifically mentioned appellant's unsworn statement as
something the members should consider in their deliberations.
Under these circumstances, it was within the judge's discretion,
in fulfilling his responsibility under Wheeler to tailor his
instructions to the law and the evidence, to decide that the
attention of the members to appellant's remarks could be
addressed adequately through instructions containing a general
reference to his unsworn statement rather than through a more
particularized instruction.2
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
2
Although the requested instruction was not required under the circumstances
of the present case, it is well within the discretion of a military judge to
provide a more particularized instruction on the issue of remorse. Depending
on the facts of the case, such an instruction might advise the members that
they have heard an unsworn statement by the accused, and that, to the extent
they considered the statement to contain an expression of remorse, they could
consider that expression of remorse as a matter in mitigation.
7