          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              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


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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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.

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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.

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                    United States v. Martinez, No. 201700090


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.

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                 United States v. Martinez, No. 201700090


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

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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 COURTS-
MARTIAL (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 psychotherapist-
patient privilege and were admissible in sentencing. See United States v. Jenkins, 63
M.J. 426 (C.A.A.F. 2006).



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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.

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                     United States v. Martinez, No. 201700090


    “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.

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                 United States v. Martinez, No. 201700090


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




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