U.S. v. Sowell, 62 M.J. 150

Trial Stages: Sentence and Punishment: Unsworn Statements

1. with respect to presentencing procedure, RCM 1001(c)(2)(A) provides an accused with the right to make an unsworn statement in extenuation, in mitigation, or to rebut matters presented by the prosecution
2. an accused’s traditional right to make an unsworn statement has been described as broadly construed and largely unfettered; however, while the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained
3. the right to rebuttal on sentencing should extend to allowing comment upon trial counsel’s characterization of that evidence during findings; after all, RCM 1001(c)(2)(A) affords an accused the right in his unsworn statement to rebut matters presented by the prosecution, suggesting a somewhat broader reading than one limiting the right only to rebut evidence
4. in this case, the military judge erred by not allowing the accused from mentioning in her unsworn statement the fact of her co-conspirator’s acquittal on the grounds that this information was irrelevant and direct impeachment of the verdict; the trial counsel had implied during her findings argument that the co-conspirator was guilty of the same offense as the accused, thereby opening the door to explain the co-conspirator’s true status as proper rebuttal; the accused should have been permitted an opportunity to fairly respond in her unsworn statement to the implications of trial counsel’s argument on findings

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the military judge’s error in not allowing the accused from mentioning in her unsworn statement the fact of her co-conspirator’s acquittal, despite the trial counsel’s implication that the co-conspirator was guilty, had a substantial influence on sentencing; although the members might have drawn the inference that the co-conspirator was acquitted or received no punishment on account of her presence in the courtroom as a witness, they might also have reasonably inferred that she had yet to be tried for the same offense as the accused, and because she was an alleged co-conspirator with the accused based on the same facts, trial counsel’s argument and its implications necessarily reached to the core of the accused’s own case

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision to restrict an accused’s sentencing statement for abuse of discretion