Fitzpatrick v. State

733 S.E.2d 46, 317 Ga. App. 873, 2012 Fulton County D. Rep. 3215, 2012 WL 4829076, 2012 Ga. App. LEXIS 834
CourtCourt of Appeals of Georgia
DecidedOctober 11, 2012
DocketA12A0916
StatusPublished
Cited by6 cases

This text of 733 S.E.2d 46 (Fitzpatrick v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzpatrick v. State, 733 S.E.2d 46, 317 Ga. App. 873, 2012 Fulton County D. Rep. 3215, 2012 WL 4829076, 2012 Ga. App. LEXIS 834 (Ga. Ct. App. 2012).

Opinion

Ray, Judge.

A jury convicted Michael Fitzpatrick of two counts of burglary1 and one count of possession of tools for the commission of a crime.2 The trial court denied his motion for a new trial, and he appeals, contending that he received ineffective assistance of counsel; that the trial court exhibited bias in sentencing him; and that the evidence was insufficient to sustain his conviction. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict,3 the record shows that around midnight on November 7, 2008, a security guard saw Fitzpatrick pushing a baby stroller behind a shopping plaza containing a Metro PCS store. When the guard identified himself, Fitzpatrick ran away and jumped on top of a storage unit. The guard testified that he chased Fitzpatrick for about five minutes, never losing sight of him, then drew his weapon and apprehended him. In the stroller, the guard found cell phones, earpieces, and a radio. While the guard waited for the police, the owner of the Metro PCS store arrived because a silent alarm in his store had activated. He identified the baby stroller and its contents as having been taken from his store. When the police arrived, they searched Fitzpatrick and found screwdrivers and twelve cell phones in his pockets, as well [874]*874as wire cutters and a flashlight in his duffel bag. The police also found that a hole had been chiseled through the cinder block and sheet rock into the back storage area of the store, and an additional hole from the storage area into the store itself. Fitzpatrick’s hair, clothing, and boots were covered in a white chalky substance consistent with dust near the holes. The guard testified that he first saw Fitzpatrick and the stroller about five feet from one of the holes. The holes were big enough for a person to crawl through, and hammers not belonging to the store owner were found inside the store.

Three days prior to the burglary at the Metro PCS store, in the early morning hours of November 5, 2008, hundreds of dollars worth of meat was stolen from a Super Giant food store in the same plaza. The Super Giant was burglarized via a hole made through the external wall. The jury viewed a surveillance video taken at the store that morning, on which Fitzpatrick is shown.

1. As an initial matter, we note that Fitzpatrick has propounded compound enumerations of error and, in some instances, has failed to provide citations to the record or relevant authority. Our requirements for appellate briefs

were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted rélief should we err in deciphering a brief which fails to adhere to the required form.4

Further, “this Court will not cull the record in search of error on behalf of a party. Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel.”5

2. Fitzpatrick contends that his trial counsel was ineffective for a number of reasons.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.6 “The likelihood of a different result must be substantial, not just conceivable.”7 We are not required [875]*875to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”8 Further, “[we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”9

Additionally, we note that Fitzpatrick’s counsel obtained a directed verdict on one of the four charges against his client. Such a circumstance strongly supports the conclusion that the assistance of Fitzpatrick’s trial counsel fell within the broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.10

(a) Fitzpatrick’s contention that he received ineffective assistance because his trial counsel lacked sufficient experience fails. Counsel had practiced law for five years as a public defender and had tried two or three felony cases before a jury. A successful ineffectiveness claim “rests upon specific errors made by counsel and does not rest upon trial counsel’s inexperience.”11 Fitzpatrick has not met either prong of the ineffectiveness test in this contention.

(b) Fitzpatrick’s assertion that trial counsel spent insufficient time preparing his case also fails. Although trial counsel did not recall how long he spent preparing for trial, at the motion for new trial hearing, he testified that he met with Fitzpatrick several times and had “ample opportunity to talk about... what our defense would be.” Further, Fitzpatrick testified that he wanted to testify on his own behalf and felt prepared to do so. “[T]here exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel.”12 As Fitzpatrick does not address how additional communication with his lawyer would have had a reasonable probability of changing the outcome of his trial, he has not shown prejudice.13

[876]*876(c) Fitzpatrick contends that his trial counsel was ineffective because counsel “could recall no effort to ever locate” two witnesses whose names Fitzpatrick provided, and because counsel did not seek potential, unnamed witnesses from businesses in the same plaza where the burglaries were committed.

The decision about which defense witnesses will be called is a matter of trial strategy and tactics, and whether that decision is reasonable is a question of law, not fact.14 At trial, Fitzpatrick testified that one of those named witnesses, a co-worker, was “already gone” by the time Fitzpatrick went to the shopping plaza. There was no testimony about the other named witness. In addition, Fitzpatrick never asserted that these witnesses were with him at the time of the burglaries and thus could have provided an alibi. As for the potential witnesses from other businesses in the shopping plaza, Fitzpatrick has provided no argument about how those witnesses, even if they testified that he came into a nearby business to use the restroom, as he alleges, would then have been able to provide him with an alibi or other favorable testimony. Fitzpatrick did not call any of these witnesses at the hearing on his motion for a new trial, and trial counsel testified that he did not have enough information to contact the named witnesses.15

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Bluebook (online)
733 S.E.2d 46, 317 Ga. App. 873, 2012 Fulton County D. Rep. 3215, 2012 WL 4829076, 2012 Ga. App. LEXIS 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzpatrick-v-state-gactapp-2012.