

   
   
   
   U.S. v. Martinez



IN THE CASE OF
UNITED STATES, Appellee
v.
Jose M. MARTINEZ, Sergeant
U.S. Army, Appellant
 
No. 98-0998
Crim. App. No. 9501957
 
United States Court of Appeals for the Armed
Forces
Argued April 28, 1999
Decided September 27, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Captain
Patricia A. Lewis (argued); Colonel John T. Phelps II, Lieutenant
Colonel Adele H. Odegard, and Major Leslie A. Nepper (on brief).
For Appellee: Captain Troy
A. Smith (argued); Colonel Russell S. Estey, Lieutenant Colonel
Eugene R. Milhizer, and Major Patricia A. Ham (on brief).
Military Judge: Robert F.
Holland
 
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 
 

Judge SULLIVAN delivered the opinion of the Court.
During August and October of 1995, appellant
was tried by a general court-martial composed of officer and enlisted members
at Fort Campbell, Kentucky. Contrary to his pleas, he was found guilty
of several offenses related to the death of 16-month-old Niko Martinez,
i.e., accessory after the fact to assault, involuntary manslaughter,
child neglect, and misprision of a serious offense, in violation of Articles
79, 119, and 134, Uniform Code of Military Justice, 10 USC §§
879, 919, and 934, respectively. He was sentenced to a dishonorable discharge,
confinement for 13 years, forfeiture of $854 pay per month for 156 months,
and reduction to the lowest enlisted grade. On July 3, 1996, the convening
authority approved the sentence.
On May 29, 1998, the Court of Criminal Appeals,
in an unpublished opinion, set aside appellants convictions for child
neglect and misprision, based on a government concession that they were
multiplicious for findings with the remaining convictions, and it reassessed
his sentence. It affirmed only so much of the sentence as provided for
a dishonorable discharge, confinement for 11 years, forfeiture of $854
pay per month for 132 months, and reduction to E-1.
This Court granted review in this case on October
14, 1998, on the following issue of law:



WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT
TO CONVICT APPELLANT BEYOND A REASONABLE DOUBT OF THE SPECIFICATION OF
CHARGE I. */



We hold that the evidence was legally sufficient
to support appellants conviction for involuntary manslaughter. See
United States v. Baker, 24 MJ 354 (CMA 1987); see also
United States v. Valdez, 40 MJ 491 (CMA 1994) (unpremeditated murder
conviction upheld on basis of evidence of calculated withholding of medical
attention in case of glaring physical abuse); see generally
Archbold, Criminal Pleading, Evidence and Practice § 19-107
at p. 1590 (1999) (common law of manslaughter by gross negligence).
The appellate court below, using its Article
66, UCMJ, 10 USC § 866, powers found the following facts concerning
the charged offenses:



Appellants son, N, was the second child
born to his wife as the product of separate adulterous affairs that occurred
while appellant was twice deployed overseas. The first child was given
up for adoption. N was born on 4 October 1993, put up for adoption at the
insistence of appellant, but later retrieved by his mother. Appellant concealed
Ns status by claiming that N was his wifes nephew. He never enrolled
N as a dependent within the military benefits system. N died on 4 February
1995, primarily due to neglect and severe physical abuse at the hands of
his mother and appellants failure to act.
This abuse occurred over the span of at least
four months, was progressive in its severity, and produced bruises on Ns
body literally from head to foot. The repeated "lumps" on Ns head, as
well as other physical signs, were noticed and commented on by relatives,
with little evidence of concern on appellants part. He admitted that he
was aware of this evidence of injury to N; that he confronted his wife
about these injuries; that he did not believe his wifes explanations,
which made him "mad" at her; but that he otherwise did absolutely nothing
about the situation.
The worst of the abuse apparently occurred
about a week before N died. Among other acts, Mrs. Martinez admitted to
losing control, hitting N, and slamming his head into the wall of the bedroom
N shared with his three sisters. This act occurred on 2 February and was
done with sufficient force that two large, round indentations were made
in the wallboard.
About this time, N began to exhibit signs of
physical distress. On 3 February, while taking care of N, appellant noticed
that he was listless and had a fever. His sister, O, had also developed
a fever and was taken to the hospital by Mrs. Martinez that evening. However,
both appellant and his wife consciously decided not to seek similar medical
attention for N. He died about six hours later. The autopsy indicated that
he bled to death over the course of several days due to a blunt force,
traumatic rupture of blood vessels connected to his digestive tract.



___ ___ ___
Our starting point in resolving the granted
issue is the specification of involuntary manslaughter under Article 119(b),
UCMJ, which appellant was found guilty of violating. It states that appellant,



on active duty, did, at or near Clarksville,
Tennessee, between on or about 1 February 1995 and on or about 4 February
1995, by culpable negligence, unlawfully kill an infant child, Niko
Martinez, by means of failing to provide him with medical attention which
was required for the injuries Niko Martinez suffered as a result of recent
assaults by his mother, Rebecca Martinez, to include striking and slapping
him repeatedly, shoving his head against a floor, hitting him in the side
with her fist, and slamming his head into a wall twice causing bruising
and bleeding, and other medical problems from which Niko Martinez
was suffering, to include a bloated, hard stomach, numerous bruises about
the head and body, and a cut on his lip, whereby as a result of some
or all of these injuries alone or in combination with each other, Niko
Martinez died.



(Emphasis added.)
There is no dispute in this case that the prosecution
was required to prove all the elements of this offense beyond a reasonable
doubt. Art. 51(c), UCMJ, 10 USC § 851(c); see generally
para. 44b(2), Part IV, Manual for Courts-Martial, United States (1995 ed.)
(elements of involuntary manslaughter). Moreover, there also is no dispute
that this Court reviews findings of guilty by a trial court using the standard
of review provided in Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Appellants basic contention is that the evidence
of record "falls substantially short of proving beyond a reasonable doubt
that [he] was responsible for the death of the victim, Niko Martinez."
He notes that the evidence is "undisputed . . . . that [his wife] struck
the blow that caused the injuries which caused the death of the child."
Final Brief at 4. He also notes that there was no evidence that he ever
injured this child. Finally, he asserts that the prosecutions theory of
his criminal liability, i.e., culpably negligent conduct in failing
to provide medical assistance to Niko, is not supported by the evidence
in the record. See generally para. 44c(2)(a)(i), Part IV,
Manual, supra.
The existence of evidence of culpable negligence
is the particular subject of this appeal. Appellant cites Jackson v.
Virginia, supra, for the proposition that legally sufficient
evidence means that, "considering the evidence in the light most favorable
to the prosecution, a rational factfinder could have found all the essential
elements of [the] offense beyond a reasonable doubt." Final Brief at 4.
In this light, he contends that there was no evidence of any legal duty
on his part to provide medical assistance to Niko Martinez. Assuming such
a duty was shown to exist, he further argues that there was no evidence
that he acted unreasonably in response to this duty or that he acted recklessly
in failing to provide medical care to Niko. Absent this evidence, he asserts
no culpable negligence could be lawfully found in his case.

I
DUTY
Appellants first argument is that the evidence
of record does not show that he had a duty to take Niko to the hospital
for injuries inflicted by his wife and, therefore, he could not be legally
found guilty of involuntary manslaughter based on culpable negligence.
Indeed, the President, in the Manual for Courts-Martial, does discuss the
negligence necessary for conviction of this offense as requiring a legal
duty to act. He states:



Legal duty required. When there is
no legal duty to act there can be no neglect. Thus, when a stranger makes
no effort to save a drowning person, or a person allows a beggar to freeze
or starve to death, no crime is committed.



Para. 44c(2)(a)(ii), supra. We agree. However,
we disagree with appellant that his record of trial does not show that
he had such a legal duty to provide medical care to Niko Martinez under
the circumstances of this case.
We initially note that military law recognizes
a duty on the part of a person in appellants situation to provide medical
assistance. See generally United States v. Martinez,
42 MJ 327, 330 (1995) (question of duty is one of substantive military
law). We have previously held that a parent has a duty to provide medical
assistance to his or her child. See generally Valdez,
40 MJ at 495; see also United States v. Robertson,
37 MJ 432, 440 (CMA 1993) (Gierke, J., concurring). The record in this
case shows that Niko was the biological son of appellants wife, and appellant
was listed on his birth certificate as his father. In addition, appellant
admitted that Niko lived with his family; Niko considered him to be his
parent; and he assumed the responsibilities of being a parent to Niko.
While there was other evidence in this case that appellant may not have
been the biological father of Niko, the members had ample evidence to find
that appellant, under the circumstances of this case, had a parental duty
as co-head of household to provide medical assistance to this child.

II
NEGLIGENCE
Appellant next asserts that, assuming he had
a duty to provide medical care to Niko, there was no evidence of unreasonable
or negligent conduct on his part in failing to do so under the circumstances
of this case. He argues that, in view of the fact that Nikos visible injuries
were not life-threatening, he acted reasonably in counseling his wife to
take the child to the hospital the night before he died and in later relying
on that request based on her assurances. He concludes that he made the
wrong choice to trust his wife, but that it was not a negligent choice.
The record before us, however, contains evidence
beyond that noted in appellants argument. The record shows that appellant
was well aware that Niko had been repeatedly bruised in the past while
in his wifes care ("every other day"; "over a four month period") (R.
at 479, 482). He also admitted that he had previously suspected his wife
was abusing Niko. Moreover, evidence of recent physical battery was readily
observable in his home, i.e., blood was on the wall and curtains
of Nikos bedroom, and there were two indentations on the wallboards. Finally,
evidence was admitted that Nikos body was severely bruised when he died,
and that appellant observed numerous bruises on his body during the week
before his death. In these circumstances, we conclude that the members
could find that appellants reliance on a suspected child abuser¢
s assurances was an unreasonable response to his duty to provide medical
care to this child. Cf. Robertson, supra at 438-39
(uncontroverted evidence that accused had no knowledge of scope and causes
of victims prior medical difficulties).

III
RECKLESSNESS
Appellant finally argues that there was no
evidence that he acted recklessly in failing to obtain medical care for
Niko. In other words, there was no showing that a reasonable person would
foresee a life-threatening situation or the actual death of Niko as a consequence
of his failure to take him to the hospital. See para. 44c(2)(a)(i),
supra. We strongly disagree.
Appellant argues that a person who was not
a doctor would not have suspected that Niko had a life-threatening abdominal
injury; nor was it reasonably foreseeable that Niko would die as a result
of appellant's failure to secure immediate medical assistance. Appellant
notes evidence in the record that the bruises on Nikos body were not the
cause of his death; nor would they cause a layman to suspect an abdominal
injury. He further notes evidence suggesting that Niko otherwise exhibited
flu-like symptoms as a result of the fatal abdominal injury. Finally, he
asserts that as soon as his wife informed him that Niko had stopped breathing,
he told her to call 911 and he began cardiopulmonary resuscitation.
A similar argument was made in United States
v. Baker, supra, a case of involuntary manslaughter involving
the death of a 13-month-old infant. There, this Court said:



To find appellant guilty of involuntary manslaughter,
the members had to conclude that appellant acted with culpable negligence.
Art. 119(b)(1). Culpable negligence has been defined as "a negligent
act or omission accompanied by a culpable disregard for the foreseeable
consequences to others of that act or omission." Para. 198b, Manual
for Courts-Martial, United States, 1969 (Revised edition). The actor
need not actually intend or foresee those consequences: it is only necessary
that a reasonable person in such circumstances would have realized the
substantial and unjustified danger created by his act. United States
v. Henderson, 23 MJ 77 (CMA 1986); United States v. Brown, 22
MJ 448 (CMA 1986). Death is the reasonably foreseeable consequence required
for involuntary manslaughter. Para. 198b, Manual, supra.



24 MJ at 356 (emphasis added).
We adhere to this standard again today.
In light of this standard, we note that Doctor
Harlan testified to the symptoms Niko would have displayed during the time
between his abdominal injury and his death. He said:



Tears in the mesentary produce certain symptoms
which may all be present or part of them may be present. These symptoms
include irritability. They would include diarrhea, they would include nausea
and vomiting, they would include such things as increased temperature or
fever. They would include a general malaise. . that is, not feeling well
. . and decreased activity on the part of the individual. They would have
produced something called "guarding," which is the area is attempted to
be protected from further injury by the person because they will hold their
arms or hands over that area. There will also be a certain amount of rigidity
of the abdomen which may be seen. Eventually or gradually, the individual
will lose consciousness and there will be coma and subsequent death.



We are not persuaded that this testimony, in and
of itself, would lead a reasonable person to conclude that a person with
such symptoms was simply suffering from the flu. In any event, Niko was
an 18-month-old child who had been repeatedly physically injured over the
past 4 months while in his mothers care. Evidence was also admitted that
appellant was fully aware of these repeated assaults and suggested medial
assistance at various times. Finally, the defense experts testified that
the most recent bruising of Niko was pronounced in appearance and might
suggest intentional battering to even a layman. On this evidentiary basis,
we conclude that the members could find beyond a reasonable doubt that
a reasonable person would have considered death a substantial danger in
the absence of medical assistance. See United States v. Baker,
supra. (tender age of child victim important factor in assessment
of danger of death.)
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTE:
*/ We heard oral argument
in this case at the United States Military Academy at West Point, New York,
on April 28, 1999, at the invitation of the Department of Law, United States
Military Academy, and without objection from the parties involved. See
Foundation of the Federal Bar Association, Equal Justice Under Law:
The Supreme Court in American Life 15-18 (1965); see also
D. OBrien, Storm Center: The Supreme Court in American Politics
78, 135-40 (2d ed. 1990). This procedure is similar to the well-established
practice of a number of federal and state appellate courts that hold hearings
at law schools and other public settings within their jurisdictions.
The United States Court of Appeals
for the Armed Forces conducts a hearing such as this outside its permanent
courthouse in Washington, D.C., as part of its "Project Outreach," a public
awareness project which demonstrates both the operation of a Federal appellate
court and the criminal justice system of our Armed Forces, the Uniform
Code of Military Justice (Arts. 1-146, 10 USC §§ 801-946, respectively).
Project Outreach provides thousands of students, military personnel, attorneys,
and members of the American public with an example of how our democracy
maintains an Armed Force instilled with the appropriate discipline to make
it a world power while affording members of that Armed Force a fair and
impartial justice system under the protection of the Constitution of the
United States and Federal law.

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