U.S. v. Talkington, 73 M.J. 212

Military Justice Personnel: Military Judge: Discretion

1. a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances
2. appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions
3. while the military judge’s discretion in choosing whether to instruct upon collateral matters is broad, he or she is required to give legally correct instructions that are tailored to the facts and circumstances of the case
4. in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence

Military Justice Personnel: Military Judge: Instructions

1. a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances
2. appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions
3. while the military judge’s discretion in choosing whether to instruct upon collateral matters is broad, he or she is required to give legally correct instructions that are tailored to the facts and circumstances of the case
4. in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence

Trial Stages: Sentence and Punishment: Evidence

1. sex offender registration operates independently of the sentence adjudged and is a collateral consequence of the conviction alone, not the sentence; while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused
2. RCM 1001 permits the presentation of matters in extenuation, mitigation, or rebuttal by an accused through an unsworn statement; despite the limits of this rule, the right to present an unsworn statement is generally considered unrestricted; however, an unsworn statement may be tempered by appropriate instructions from the military judge; while the right of allocution includes the right to present evidence that is not relevant as extenuation, mitigation, or rebuttal, the military judge may put the information in proper context by effectively advising the members to ignore it
3. a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration; the collateral consequences of a court-martial do not constitute RCM 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing
4. a matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, and a matter in mitigation is introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency; it includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember; all of the above examples of mitigation focus on particular traits of the accused, or prior punishment; the proper focus of sentencing is on the offense and the character of the accused, and to prevent the waters of the military sentencing process from being muddied by an unending catalogue of administrative information
5. unlike the loss of retirement benefits, which would be a direct consequence of the imposition of a punitive discharge, there is no causal relation between the sentence imposed and the sex offender registration requirement; whether appellant received no punishment or the maximum available punishment, he would be required to register as a sex offender based on the fact of his conviction alone
6. appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions

Trial Stages: Sentence and Punishment: Unsworn Statements

1. sex offender registration operates independently of the sentence adjudged and is a collateral consequence of the conviction alone, not the sentence; while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused
2. RCM 1001 permits the presentation of matters in extenuation, mitigation, or rebuttal by an accused through an unsworn statement; despite the limits of this rule, the right to present an unsworn statement is generally considered unrestricted; however, an unsworn statement may be tempered by appropriate instructions from the military judge; while the right of allocution includes the right to present evidence that is not relevant as extenuation, mitigation, or rebuttal, the military judge may put the information in proper context by effectively advising the members to ignore it
3. a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration; the collateral consequences of a court-martial do not constitute RCM 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing; the proper focus of sentencing is on the offense and the character of the accused, and to prevent the waters of the military sentencing process from being muddied by an unending catalogue of administrative information
4. unlike the loss of retirement benefits, which would be a direct consequence of the imposition of a punitive discharge, there is no causal relation between the sentence imposed and the sex offender registration requirement; whether appellant received no punishment or the maximum available punishment, he would be required to register as a sex offender based on the fact of his conviction alone
5. appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions
6. in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence

Trial Stages: Sentence and Punishment: Instructions

1. sex offender registration operates independently of the sentence adjudged and is a collateral consequence of the conviction alone, not the sentence; while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused
2. a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances
3. appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions
4. while the military judge’s discretion in choosing whether to instruct upon collateral matters is broad, he or she is required to give legally correct instructions that are tailored to the facts and circumstances of the case
5. in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence

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

1. an appellate court reviews a military judge’s sentencing instructions for an abuse of discretion, and a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances