United States v. DiCupe

21 M.J. 440, 1986 CMA LEXIS 18122
CourtUnited States Court of Military Appeals
DecidedMarch 31, 1986
DocketNo. 45516; ACM 23515
StatusPublished
Cited by38 cases

This text of 21 M.J. 440 (United States v. DiCupe) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. DiCupe, 21 M.J. 440, 1986 CMA LEXIS 18122 (cma 1986).

Opinion

Opinion of the Court

COX, Judge:

Despite his pleas, a general court-martial convicted- the accused of larceny of $1,000.00 from the Zaragoza Officers’ Open Mess (Officers’ Club), in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The approved sentence extends to a bad-conduct discharge, confinement at hard labor for 8 months and reduction to the grade of E-3. The Court of Military Review affirmed the findings and sentence. 14 M.J. 915 (1982). We granted the accused’s petition to review three issues, which we will discuss seriatim.

I

WHETHER AS A MATTER OF LAW THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT.

Much of the evidence against the accused was circumstantial in nature. The [441]*441club cashier had secured $1,000.00 in twenty-dollar bills in the safe in her office for the night. The bills were bound by a rubber band. The cashier was responsible for locking that safe when she left work each day. The accused, a night manager at the club, had access to the office and to another safe located therein, but did not know the combination of the cashier’s safe. The following day, the same cashier found the safe secured but the packet of twenty-dollar bills was missing. A search of the safe failed to uncover the money. However, some 10 days later, during a consent search of the accused’s on-base quarters, $900 in twenty-dollar bills was found in a plastic bag, in a service cap on the back of a shelf in the accused’s bedroom closet.1 When the money was found, the accused disclaimed knowledge of its presence in his quarters or how it came to be there.

At this point, the evidence before the court members presented three possible scenarios:

(1) Someone other than the accused stole the money and later secreted it in accused’s bedroom;
(2) Someone other than the accused stole the money but the money that was found in his quarters was not related to the theft; or,
(3) The accused stole the money and attempted to secrete it in his bedroom.

Obviously, if the cashier’s safe had been locked and the accused, in fact, did not know the combination, it would have been difficult to establish his complicity in the theft of the money. However, there was some confusion as to whether the cashier actually locked the safe as she was supposed to have done when she left work for the day, and there was evidence that the safe had been left unlocked in the past. It was the night manager’s responsibility to check both safes when he closed for the night.

In addition — and most damaging to the accused’s assertions of innocence — there was a statement made by the accused to a lady friend. She remembered the substance of the statement in this form:

He goes, “Well, I don’t know if you know of the trouble that I’m in, but I wouldn’t have moved in base housing if I would’ve known” —he said, “I wouldn’t of moved into base housing because then I wouldn’t have been caught.” He goes— he said, “The SP’s can come in and search your house,” and he said, “If you lived off base, they couldn’t.” That’s not his exact words, but, you know, that was the gist of the conversation.

In our review, “we must examine the record of trial to determine” whether there was any “competent evidence ... from which the” triers of fact “could find, beyond a reasonable doubt, the existence of” each and “every element of the offense charged.” See United States v. Cosby, 14 M.J. 3, 4-5 (C.M.A.1982), and cases cited therein. The members of the court-martial, the convening authority, and the Court of Military Review concluded that the evidence established the accused’s guilt beyond a reasonable doubt. These are the authorities empowered by statute to determine questions of fact. United States v. McCrary, 1 U.S.C.M.A. 1, 1 C.M.R. 1 (1951). While we may weigh and evaluate the evidence for the purpose of determining whether it was sufficient enough for the triers of fact to “find, beyond a reasonable doubt, the existence of every element of the offense charged,” United States v. Cosby, supra, we do not apply the reasonable doubt standard on appeal. United States v. McCrary, supra. We conclude that there is sufficient competent evidence of record to support the findings of guilty in this case.

II

WHETHER APPELLANT WAS DENIED THE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

On appeal, the accused questions the tactics of trial defense counsel in not objecting [442]*442on several occasions. Review of a defense counsel’s trial strategy is difficult, if not impossible, on appeal because the appellate court is not privy to the knowledge of the trial participants except to the extent such information appears in the record of trial. Before considering the constitutional aspects of the granted issue, we will determine whether appellant’s statutory rights were violated by counsel’s performance. We have held that an accused is guaranteed by Article 27(a), UCMJ, 10 U.S.C. § 827(a), “the effective assistance of counsel,” United States v. Rivas, 3 M.J. 282, 287 (C.M.A.1977), and that means “a reasonably competent counsel who exercises that competence in his ... behalf throughout the trial.” United States v. Jefferson, 13 M.J. 1, 5 (C.M.A.1982). However, we have not attempted to define specifically those skills and knowledge demanded of a competent counsel. In United States v. Jefferson, supra at 6, we stated:

[W]e have “assume[d] that the accused is entitled to the assistance of an attorney of reasonable competence” and have expressed the expectation that the attorney will “ ‘exercise ... the customary skill and knowledge which normally prevails ... ’ ‘within the range of competence demanded of attorneys in criminal cases.’ ” We believe that ... [this] requires that the attorney act as a diligent and conscientious advocate on behalf of his client.

Quoting United States v. Rivas, supra at 288.

In reviewing claims of inadequacy of representation we have used the standard set out in United States v. DeCoster, 624 F.2d 196, 208 (en banc) (D.C.Cir.1979) (plurality opinion): “The claimed inadequacy must be a serious incompetency that falls measurably below the performance ordinarily expected of fallible lawyers.” See also United States v. Jefferson, supra.

The Court below held:

In our review of this record, we find no instances when the trial defense counsel remained silent when events at trial cried out for action. It is obvious that he was prepared and gave accused his best efforts. This case could have been defended differently and the accused did not receive the perfect trial he would have preferred. But, it was fair and he was accorded due process of law.

United States v. Dicupe, supra at 918.

It may well be that another defense counsel might have proceeded differently, both strategically and tactically.

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Bluebook (online)
21 M.J. 440, 1986 CMA LEXIS 18122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dicupe-cma-1986.