## U NITED 

## S TATES 

## N AVY



## – M ARINE 

## C ORPS 

## C OURT OF 

## C RIMINAL 

## A PPEALS

_________________________ No. 201 7000 90

_________________________ 

### 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: L ieutenant Col onel M att J. Kent, USMC

. Convening Authority: Command ing General, 1 st Marine Division

(REIN)
, Camp Pendleton, CA

. Staff Judge Advocate’s Recommendation: L ieutena nt C ol onel

M atthew J. Stewart, US MC

. For Appellant: C ommander Richard E.N. Federico , JAGC, USN

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

USN; Lieutenant George R. Lewis, J A GC, USN

.

_________________________ Decided 12 September 2017

_ ________________________ Before H UTCHISON , F ULTON , and S AYEGH , 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.

_ ________________________ S AYEGH , Judge : At a general court

- martial, a m ilitary j udge convicted the a ppellant, pursuant to his pleas, of willful dereliction of duty
, and aggravated assault in violation of Articles 92 and 128 , Uniform Code of Military Justi ce (UCMJ), 10 U.S.C. §§ 892 and 928. The m ilitary j udge sentenced the a ppellant to 15 months’ confinement, reduction to pay grade E

- 1, total forfeiture of pay andUnited States v. Martinez
, No. 2017000 90

2 allowances, and a dishonorable discharge. The c onvening a uthority (CA) approved the sentence as adjudged

. In accordance with the p retrial

a greement, the CA suspended confine ment 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 assignm ents of error: (1) i neffective assistance of counsel (IAC) in that the trial defense counsel (TDC) fai led to object on proper grounds or move to suppress statements offered by the government in
pre sentencing 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 with out 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. B ACKGROUND The parties stipulated that w hile 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.
T he following day, the appellant was the subject of a command

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

wr iting in a memorandum subject

- titled “S TATEMENT FOR INVESTIGATION.” The military judge admitted this memorandum as Prosecution Exhibit ( PE ) 2 . The memorandum state d that t he command directed the mental health evaluation because the appellant had twice poin ted his loaded rifle at members of his platoon and had
, on one occasion
, handed his loaded pistol to a fellow Marine direct ing that Marine to shoot him. PE 2 states that d uring the evaluation the appellant admitted to the treating physician that he had tho ughts of killing another Marine in his

1 P rosecution E xhibit (PE) 1 at 3.United States v. Martinez
, No. 2017000 90

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 hav ing “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 t o the evaluation

. The appellant and the government entered into a pretrial agreement requir ing both parties to waive any objections to statements offered during the presentencing phase of the trial in aggravation
, to include written, audio, or videotaped s tatements 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 contain ed unch arg ed 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 plead ed guilty

— to include threats against other Marines and a pl an, conspiracy, or attempt to kill 40 other people. The g overnment rebutted the TDC ’ s objection by arguing that PE 2 was relevant under the invited response doctrine because
, during the providenc e 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 perform ed a “relevancy analysis” find ing PE 2 “directly relates to offenses to which the accused has been found guilty [

. ] ” 7 The military ju dge 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 be en found guilty of one instance.

D uring present enc ing, the government also offered PE 5

— “Summary of Interview with LCpl N L [.] ” PE 5 indicates that the appellant made
st a t e ments 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 th e appellant had thoughts of killing was not either o f the Marines he pointed his loaded weapon at. S ee Record at 33.

3 PE 2

4 Id

.

5 Appellate Ex hibit I at 4

.

6 Record at 31.

7 Id.United States v. Martinez
, No. 2017000 90

4 the appellant was “joking arou nd.” 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 plead ed guilty. In overruling t he 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 plead ed guilty, PE 5, “directl y related to his offense [

. ] ” 8
II. D ISCUSSION
A. I neffective assistance of counsel During presentencing, the court admitted, over a defense relevancy objection, PE 2 , which contain s unwarned statements of the a ppellant

. The

a ppellant now a sserts that the T DC’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.
A n 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 stan dard 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 circumst ances , 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 counse l 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. 2017000 90

5 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 suspec ted 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, Art icle 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 St ates 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 o r 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).

T he appellant was a person suspected of an offense when his command escorted him to the command

- directed mental health evaluation. A t no time during the evaluation was the appellant read, or otherwise affo rded 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 . T he appellant asserts , however, that the treating physician’s quest ions had a “secondary purpose” of “gather[ing] incriminating evidence

. . . ” against the appellant. 9 The a ppellant 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 th e secondary purpose of the questions asked during the mental

9 Appellant’s Brief of 25 May 2017 at 15

.United States v. Martinez
, No. 2017000 90

6 health exam can be derived from the phys ician ’s failure to use the standard form for a mental health exam or cite the p urpose or authority for the exam.
“A medical doctor who questions an individual solely to obtain information upon which to predicate a diagnosi s, 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 a ctive 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 quest ioning 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 wh y 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 alter ed 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 fr om 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 Fir st Sergeant’s use of the command directed mental health exam was to obtain evidenceUnited States v. Martinez
, No. 2017000 90

7 Ra ther, 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, t h e TD C’s decision not to object to PE 2 on the grounds it violated the a ppellant’s rights under Article 31(b), UCMJ
, was not unreasonable

. Moreover, t he a ppellant has not established a reasonable probability that such a motion would have been meritorious. Havin g failed both prongs of Strickland , we conclude that the appellant’s IAC claim is without merit. 11
B. A dmitting sentencing evidence
The a ppellant next asserts that the military judge abused his discretion by admitting PE 2 and PE 5 during present encin g w ithout 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. 200 9) (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). R ULE FOR C OURTS

M ARTIAL (R.C.M.) 1001(b)(4)
, M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (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 a ccused has been found guilty. “Evidence qualifying for admission under [R.C.M.] 1001(b) ( 4) must also pass the test of [ M IL

. R. E VID

. 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 in effective for the TDC to not object to PE 2 under M IL ITARY R ULE OF E VID ENCE ( M IL

. R. E VID

. ) 513 , M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (2016 ed.)

. First, there is nothing in the record to indicate that the treating medical provider was, in fact, a psych otherapist as defined by M IL

. R. E VID 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, i n a case factually similar to this one, the C ourt of A ppeals for the A rmed F orces 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 psychotherapist

patient privilege a nd were admissible i n sentencing

. See United States v. Jenkins , 63 M.J. 426 (C.A.A.F. 2006).United States v. Martinez
, No. 2017000 90

8 The refore, 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 M IL

. R. E VID . 403 , the probative v alue 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 di sagree. “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, t he record establishes t hat 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, w e 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). T he a ppellant p oint ed a loaded weapon at fellow Marines and threaten ed to “ blow their head s 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 c ould reasonabl y 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 M IL

. R. E VID . 403 analysis , w e 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 di d 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. 2017000 90

9 “The overriding concern of [ M IL

. R. E VID . 403] is that evidence will be used in a way that distorts rather than aids accurate fact finding.” Stephens
, 67 M.J. at 236 ( cita tion and internal quotation marks omitted). The government argues that both PE 2 and PE 5 are probative as rebuttal to the appellant’ s statement s during his providenc e inquiry regarding his suicidal ideations

— that when he pointed the loaded weapon at anoth er 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 providenc e inquiry: I did it because I was hoping th at 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 e vidence contradicti ng 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,
t he 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 “ a re 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

. P ortions of PE 2 that referred to uncharged misconduct were excluded from consideration

. T he 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. 2017000 90

10 could come up during the government sentencing argument, and all objections by the TDC during the government’s sentencing argument were sustained. W e a re satisfied the military judge was able to sort through the sentencing evidence and apply the appropriate weight in fashioning the sentence adjudged. W e find the evidence of the appellant’s homicidal and suicidal thoughts contained in PE 2 and PE 5 to hav e probative value that

was not substantially outweighed by the danger of unfair prejudice, confusio n of the issues, or misleading the military judge

. The military judge did not abuse his discretion in admitting PE 2 and PE 5.

III. C ONCLUSION 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