                                    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.


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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.


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