UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700090

_________________________

UNITED STATES OF AMERICA

Appellee

v.

ARNOLD P. MARTINEZ

Lance Corporal (E-3), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Matt J. Kent, USMC.

Convening Authority: Commanding General, 1st Marine Division

(REIN), Camp Pendleton, CA.

Staff Judge Advocate’s Recommendation: Lieutenant Colonel

Matthew J. Stewart, USMC.

For Appellant: Commander Richard E.N. Federico, JAGC, USN.

For Appellee: Lieutenant Commander Justin C. Henderson, JAGC, 

USN; Lieutenant George R. Lewis, JAGC, USN.

_________________________

Decided 12 September 2017

_________________________

Before HUTCHISON, FULTON, and SAYEGH, Appellate Military Judges

_________________________

This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

SAYEGH, Judge: 

At a general court-martial, a military judge convicted the appellant, 

pursuant to his pleas, of willful dereliction of duty, and aggravated assault in 

violation of Articles 92 and 128, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 892 and 928. The military judge sentenced the appellant to 15 

months’ confinement, reduction to pay grade E-1, total forfeiture of pay and 
United States v. Martinez, No. 201700090

2

allowances, and a dishonorable discharge. The convening authority (CA)

approved the sentence as adjudged. In accordance with the pretrial 

agreement, the CA suspended confinement in excess of 12 months and, except 

for that part of the sentence extending to the dishonorable discharge, ordered 

the sentence executed.

The appellant raises two assignments of error: (1) ineffective assistance of 

counsel (IAC) in that the trial defense counsel (TDC) failed to object on 

proper grounds or move to suppress statements offered by the government in 

presentencing that were obtained in violation of the appellant’s rights against 

self-incrimination; and (2) the military judge abused his discretion by 

admitting sentencing matters without applying the appropriate legal 

framework. 

After careful consideration of the record of trial and the pleadings of the 

parties, we conclude the findings and the sentence are correct in law and fact,

and no error materially prejudicial to the substantial rights of the appellant 

occurred. Arts. 59(a) and 66(c), UCMJ.

I. BACKGROUND

The parties stipulated that while deployed to Kuwait, the appellant 

entered his barracks room with his M4 rifle. The rifle had a magazine with 

live rounds inserted, but no round had been chambered and the rifle was on 

safe. The appellant’s two roommates—Lance Corporal (LCpl) MN and LCpl 

JM—were in the room. In response to LCpl MN asking him how his day was 

going, the appellant immediately chambered a round in his rifle, put the 

selector on “semi,” pointed it at LCpl MN and stated, “I will blow your head 

off.”1 Both Marines instructed the appellant to put his weapon on “safe.” After 

a period of time, the appellant handed his rifle to LCpl JM who unloaded the 

weapon.

The following day, the appellant was the subject of a command-directed 

mental health evaluation. The results of this evaluation were reduced to 

writing in a memorandum subject-titled “STATEMENT FOR 

INVESTIGATION.” The military judge admitted this memorandum as 

Prosecution Exhibit (PE) 2. The memorandum stated that the command 

directed the mental health evaluation because the appellant had twice 

pointed his loaded rifle at members of his platoon and had, on one occasion,

handed his loaded pistol to a fellow Marine directing that Marine to shoot 

him. PE 2 states that during the evaluation the appellant admitted to the 

treating physician that he had thoughts of killing another Marine in his 

 

1 Prosecution Exhibit (PE) 1 at 3.
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3

unit,

2 would sometimes calculate how many magazines he would need to 

“take out” 40 people in the room, and that he would try to shoot the officers 

and noncommissioned officers first.3 The appellant was assessed as having 

“homicidal ideations with a degree of suicidality and that he was a threat to 

his platoon . . . and himself.”4 The appellant was escorted to the mental 

health evaluation by members of his command and was not read his Article 

31(b), UCMJ, rights prior to the evaluation.

The appellant and the government entered into a pretrial agreement 

requiring both parties to waive any objections to statements offered during 

the presentencing phase of the trial in aggravation, to include written, audio, 

or videotaped statements or telephonic testimony of any victim or relevant 

witness, on the basis of foundation, hearsay, lack of confrontation, or 

authenticity.5

During presentencing, the government offered PE 2. The TDC objected on 

the basis that PE 2 contained uncharged misconduct. Specifically, the TDC 

argued that PE 2 contained admissions by the appellant that were completely 

unrelated to the stipulation of fact or the charges to which the appellant had 

pleaded guilty—to include threats against other Marines and a plan, 

conspiracy, or attempt to kill 40 other people. The government rebutted the 

TDC’s objection by arguing that PE 2 was relevant under the invited 

response doctrine because, during the providence inquiry, the appellant had 

suggested that his actions were based on suicidal ideations focusing on a 

suicide-by-cop situation.6 In overruling the objection, the military judge 

performed a “relevancy analysis” finding PE 2 “directly relates to offenses to 

which the accused has been found guilty[.]”

7 The military judge did agree to 

not consider the reference to two instances in which the appellant had 

pointed his loaded rifle at members of his platoon, since the appellant had 

only been found guilty of one instance. 

During presentencing, the government also offered PE 5—“Summary of 

Interview with LCpl NL[.]” PE 5 indicates that the appellant made 

statements prior to the deployment that he wanted to stab LCpl NL and 

another Marine while they slept. In PE 5, LCpl NL stated that he thought 

 

2 The Marine the appellant had thoughts of killing was not either of the Marines 

he pointed his loaded weapon at. See Record at 33.

3 PE 2

4 Id. 

5 Appellate Exhibit I at 4.

6 Record at 31.

7 Id. 
United States v. Martinez, No. 201700090

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the appellant was “joking around.” The TDC objected to PE 5 on relevancy 

grounds, noting that the appellant was not charged with any of the 

allegations contained in PE 5, and that PE 5 did not relate to, or result from,

the charges to which the appellant pleaded guilty. In overruling the objection, 

the military judge noted that PE 5 included admissions by the appellant that 

he had homicidal thoughts towards other Marines, and that while those 

Marines are not named in either specification to which appellant pleaded

guilty, PE 5, “directly related to his offense[.]”

8

II. DISCUSSION

A. Ineffective assistance of counsel

During presentencing, the court admitted, over a defense relevancy 

objection, PE 2, which contains unwarned statements of the appellant. The 

appellant now asserts that the TDC’s failure to move to suppress these 

statements, on the grounds that they were obtained in violation of the 

appellant’s rights against self-incrimination, was IAC. We disagree.

An appellate court reviews ineffective assistance of counsel claims de 

novo.

The Supreme Court has set a high bar on a claim of IAC. United States v. 

Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015). Strickland v. Washington, 466 U.S. 

668 (1984), requires the appellant to show that: (1) his counsel’s performance 

fell below an objective standard of reasonableness; and (2) the counsel’s 

deficient performance gives rise to a “reasonable probability” that the result 

of the proceeding would have been different without counsel’s unprofessional 

errors. Id. at 688, 694. The appellant must show that his counsel’s 

performance was so deficient that they were not functioning as the counsel 

guaranteed by the Sixth Amendment. Denedo v. United States, 66 M.J. 114, 

127 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009). “It is not enough to show that 

the errors had some conceivable effect on the outcome[.]” United States v. 

Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citations and internal quotation 

marks omitted).

When evaluating a claim of IAC, the performance of the TDC must be 

assessed considering all the circumstances, but there are no set rules that 

cover the spectrum of decisions a TDC must make in any given case—to be 

unreasonable, the TDC’s performance must be prejudicial. Strickland, 466 

U.S. at 694, 696.

‘“[W]hen a claim of ineffective assistance of counsel is premised on 

counsel’s failure to make a motion to suppress evidence, an appellant must 

show that there is a reasonable probability that such a motion would have 

 

8 Id. at 33.
United States v. Martinez, No. 201700090

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been meritorious.’” United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 

2007) (quoting United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001)).

In this regard, the term “meritorious” is synonymous with “successful.” Id. at 

164. “To determine whether there is a reasonable probability that 

suppression motions would have been successful, it is necessary to consider 

the merits of the Article 31(b) issue.” United States v. Spurling, No. 

201400124, 2015 CCA LEXIS 311, at *10 (N-M. Ct. Crim. App. 31 Jul 2015).

Here, the appellant alleges that a defense motion to suppress PE 2—on 

grounds that the appellant’s statements were obtained in violation of the 

right against self-incrimination—would have been successful.

Article 31(b), UCMJ, provides: 

No person subject to this chapter may interrogate, or request 

any statement from . . . a person suspected of an offense 

without first informing him of the nature of the accusation and 

advising him that he does not have to make any statement 

regarding the offense of which he is accused or suspected and 

that any statement made by him may be used against him in a 

trial by court-martial.

However, Article 31(b), UCMJ, warnings are required only when, in addition 

to being suspected of an offense, the questioner is acting in an official 

capacity related to law enforcement or a disciplinary investigation. United 

States v. Loukas, 29 M.J. 385, 387 (C.M.A. 1990). Whether a questioner could 

reasonably be considered to be acting in a law enforcement or disciplinary 

capacity is determined by considering all the facts and circumstances at the 

time of the interview. United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006).

The appellant was a person suspected of an offense when his command 

escorted him to the command-directed mental health evaluation. At no time 

during the evaluation was the appellant read, or otherwise afforded his rights 

under Article 31(b), UCMJ. However, the appellant was not questioned by 

anyone in his chain of command, but by a treating physician who was

conducting a medical evaluation. The appellant asserts, however, that the 

treating physician’s questions had a “secondary purpose” of “gather[ing] 

incriminating evidence . . .” against the appellant.9 The appellant argues that 

PE 2’s inclusion of findings regarding possible hallucinations, intoxication, or 

medical disorders is indicative of the treating physician going beyond the 

scope of a mental health evaluation by inquiring into a potential lack of 

mental responsibility for the charged misconduct. Additionally, the appellant 

argues the secondary purpose of the questions asked during the mental 

 

9 Appellant’s Brief of 25 May 2017 at 15.
United States v. Martinez, No. 201700090

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health exam can be derived from the physician’s failure to use the standard 

form for a mental health exam or cite the purpose or authority for the exam.

“A medical doctor who questions an individual solely to obtain 

information upon which to predicate a diagnosis, so that he can prescribe 

appropriate medical treatment or care for the individual, is not performing 

an investigative or disciplinary function; neither is he engaged in perfecting a 

criminal case against the individual. His questioning of the accused is not, 

therefore, within the reach of Article 31.” United States v. Fisher, 44 C.M.R. 

277, 279 (C.M.A. 1972). This court applied Fisher in United States v. Dudley,

42 M.J. 528 (N-M. Ct. Crim. App. 1995). In Dudley, we affirmed a military 

judge’s decision to admit incriminating, unwarned statements made to a 

treating physician, after Dudley was brought to the medical provider by a 

Naval Criminal Investigative Service (NCIS) agent. Id. at 531. We held that, 

despite the fact that the treating physician was an active duty officer, was

aware of the accused’s status as a suspect, and was personal friends with the 

NCIS agent, the provider’s examination “was conducted solely for diagnostic 

and psychiatric care purposes” and that the treating physician “was not 

acting as the alter ego of the NCIS.” Id. (emphasis in original).

Similar to Dudley, there is nothing in the record here to suggest the 

mental health examination merged with the disciplinary investigation; nor is 

there any evidence to persuade us that the questioning of the appellant was

for any other purpose than his psychiatric care. On 2 July 2016, the appellant 

pointed a loaded weapon at LCpl MN and threatened to shoot him in the 

head. On 3 July 2016, the appellant was taken for a mental health exam,

during which the appellant made both homicidal and suicidal statements to 

the treating physician. PE 2 was created three days after the appellant made 

these statements to his treating physician. We are unable to determine from 

the record the original basis for why PE 2 was created or if any other record 

of the examination was made during or immediately after the appellant’s 

mental health exam. But this does not support any inference that the 

treating physician asked any questions, or otherwise coordinated or altered 

the normal mental health evaluation procedures, in support of law 

enforcement or the command’s disciplinary investigation. At the time the 

appellant was escorted to the aid station for his mental health evaluation, the 

command had detailed statements from the victims that established the 

appellant’s misconduct. There would be no need for the command or law 

enforcement to conduct prior coordination with the treating physician to

advise or guide him on getting additional information from the appellant.10

 

10 We find no merit in the appellant’s argument that the appellant’s First 

Sergeant’s use of the command directed mental health exam was to obtain evidence 
United States v. Martinez, No. 201700090

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Rather, the command directed mental health exam was based on a genuine

concern for the mental health of the appellant. Consequently, we find no 

evidence of a “secondary purpose” behind the treating physician’s questioning 

of the appellant. 

Therefore, the TDC’s decision not to object to PE 2 on the grounds it 

violated the appellant’s rights under Article 31(b), UCMJ, was not

unreasonable. Moreover, the appellant has not established a reasonable 

probability that such a motion would have been meritorious. Having failed 

both prongs of Strickland, we conclude that the appellant’s IAC claim is 

without merit.11

B. Admitting sentencing evidence 

The appellant next asserts that the military judge abused his discretion 

by admitting PE 2 and PE 5 during presentencing without applying the 

appropriate legal framework for aggravation evidence.

“We test a military judge’s admission or exclusion of evidence, including 

sentencing evidence, for an abuse of discretion.” United States v. Stephens, 67 

M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164, 

166 (C.A.A.F. 2000)). It is an abuse of discretion for a military judge to fail to 

properly follow the appropriate legal framework for considering evidence. 

United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010). RULE FOR COURTSMARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES

(2016 ed.) provides that a trial counsel may present evidence as to any 

aggravating circumstance directly relating to or resulting from the offenses of 

which the accused has been found guilty. “Evidence qualifying for admission 

under [R.C.M.] 1001(b)(4) must also pass the test of [MIL. R. EVID. 403].” 

United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995) (citation omitted).

 

regarding the appellant’s motives for his actions. Appellant’s Reply Brief of 25 Aug

2017 at 6.

11 Although not raised by the appellant, we also considered whether it was 

ineffective for the TDC to not object to PE 2 under MILITARY RULE OF EVIDENCE (MIL.

R. EVID.) 513, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). First, there 

is nothing in the record to indicate that the treating medical provider was, in fact, a 

psychotherapist as defined by MIL. R. EVID 513(b)(2), but we find under the facts of 

this case that it would have been reasonable for the appellant to believe the medical 

provider had similar credentials. Regardless, in a case factually similar to this one,

the Court of Appeals for the Armed Forces held that the military judge did not abuse 

his discretion when he determined the appellant’s statements to a psychologist 

during command directed treatment were not protected by the psychotherapistpatient privilege and were admissible in sentencing. See United States v. Jenkins, 63 

M.J. 426 (C.A.A.F. 2006).
United States v. Martinez, No. 201700090

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Therefore, before admitting evidence in presentencing, the military judge 

must conclude that, (1) pursuant to R.C.M. 1001(b)(4), the evidence is 

“directly related to and resulting from” the offenses of which the appellant 

was convicted; and (2) that pursuant to MIL. R. EVID. 403, the probative value 

of the evidence is not “substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the members[.]”.

The appellant argues that PE 2 and PE 5 contained uncharged 

misconduct that was unrelated to his crimes. We disagree. “Regarding the 

strength of the connection required between admitted aggravation evidence 

and the charged offense, [our superior court] has consistently held that the 

link between the R.C.M. 1001(b)(4) evidence of uncharged misconduct and 

the crime for which the accused has been convicted must be direct as the rule 

states, and closely related in time, type, and/or often outcome, to the 

convicted crime.” United States v. Hardison, 64 M.J. 279, 281-82 (C.A.A.F. 

2007).

First, the record establishes that the military judge adhered to the 

requirement that aggravation evidence meet a higher standard than “mere 

relevance.” Rust, 41 M.J. at 478 (citation and internal quotation marks 

omitted). Next, we find nothing “arbitrary” or “clearly unreasonable” with

how the military judge applied the relevant R.C.M. 1001(b)(4) factors in 

determining that PE 2 and PE 5 were directly related to the offenses for 

which appellant was found guilty. United States v. Collier, 67 M.J. 347, 353 

(C.A.A.F. 2009). The appellant pointed a loaded weapon at fellow Marines

and threatened to “blow their heads off.”

12 PE 2 and PE 5 describe the 

appellant’s prior, similar, homicidal thoughts of killing other members in his 

unit. Such evidence in aggravation could reasonably be considered as directly 

related to the crimes the appellant was convicted of, in terms of time, type, 

and outcome. Consequently, we find no abuse of discretion in the military 

judge’s finding that the appellant’s homicidal and suicidal thoughts detailed 

in PE 2 and PE 5 were “directly related” to the offenses for which the 

appellant was found guilty.13

Turning to the MIL. R. EVID. 403 analysis, we agree with the appellant 

that the military judge did not conduct his balancing test on the record before 

admitting PE 2 and PE 5. “The Court gives military judges less deference if 

they fail to articulate their balancing analysis on the record, and no deference 

if they fail to conduct the Rule 403 balancing.” Manns, 54 M.J. at 166

(citation omitted). Since the military judge did not conduct the balancing test

on the record, we examine the record ourselves. Id.

 

12 PE 1 at 3.

13 Record at 31-33.
United States v. Martinez, No. 201700090

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“The overriding concern of [MIL. R. EVID. 403] is that evidence will be 

used in a way that distorts rather than aids accurate fact finding.” Stephens, 

67 M.J. at 236 (citation and internal quotation marks omitted). The 

government argues that both PE 2 and PE 5 are probative as rebuttal to the 

appellant’s statements during his providence inquiry regarding his suicidal 

ideations—that when he pointed the loaded weapon at another Marine his 

intent was to commit suicide by prompting the other Marine to kill him in his 

own self-defense. We agree. The record of trial indicates the following 

responses from the appellant during the providence inquiry:

I did it because I was hoping that they would respond by doing 

the same towards me.14

. . .

I knew it wouldn’t hurt them, but when they pointed at me, I 

was hoping that they would pull the trigger on me.15

. . .

[B]ut I knew it wouldn’t happen because I wasn’t going to do it.

Like I said, I was hoping that they would do the same to me.16

. . .

[L]ike I said earlier, I gave them the weapon and I was hoping 

that they would shoot me[.]17

PE 2 and PE 5 present evidence contradicting the appellant’s assertions 

that he was pointing his weapon at fellow Marines in the hopes that they 

would shoot him. We find nothing in PE 2 or PE 5 that distorts the facts of 

this case or contradicts the stipulation of fact. Both exhibits could reasonably 

be utilized in making accurate findings of fact with regard to the appellant’s 

intent when he pointed the loaded weapon at another Marine. Furthermore, 

the possibility for unfair prejudice here is reduced since this was a guilty plea 

with a military judge determining the sentence rather than members. Manns,

54 M.J. at 167. Trial judges “are assumed to be able to appropriately consider 

only relevant material in assessing sentencing[.]” Hardison, 64 M.J. at 284.

The military judge limited his consideration of PE 2 and PE 5. Portions of 

PE 2 that referred to uncharged misconduct were excluded from 

consideration. The military judge acknowledged potential relevancy issues 

 

14 Id. at 14.

15 Id. at 16.

16 Id. at 18.

17 Id. at 20.
United States v. Martinez, No. 201700090

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could come up during the government sentencing argument, and all 

objections by the TDC during the government’s sentencing argument were 

sustained. We are satisfied the military judge was able to sort through the 

sentencing evidence and apply the appropriate weight in fashioning the 

sentence adjudged. We find the evidence of the appellant’s homicidal and 

suicidal thoughts contained in PE 2 and PE 5 to have probative value that 

was not substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the military judge. The military judge did not 

abuse his discretion in admitting PE 2 and PE 5. 

III. CONCLUSION

The findings and the sentence, as approved by the CA, are affirmed. 

Senior Judge HUTCHISON and Judge FULTON concur.

For the Court

R.H. TROIDL

Clerk of Court