State v. Crapp

732 S.E.2d 806, 317 Ga. App. 744, 2012 Fulton County D. Rep. 2997, 2012 WL 4497513, 2012 Ga. App. LEXIS 811
CourtCourt of Appeals of Georgia
DecidedOctober 2, 2012
DocketA12A1344
StatusPublished
Cited by18 cases

This text of 732 S.E.2d 806 (State v. Crapp) 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
State v. Crapp, 732 S.E.2d 806, 317 Ga. App. 744, 2012 Fulton County D. Rep. 2997, 2012 WL 4497513, 2012 Ga. App. LEXIS 811 (Ga. Ct. App. 2012).

Opinion

McFadden, Judge.

A jury convicted Frederick Crapp of the armed robbery and kidnapping of Tyhesha Strawder, and entering her automobile with the intent to commit kidnapping. The trial court granted Crapp’s motion for new trial, finding that Crapp had been denied the effective assistance of counsel because defense counsel did not corroborate Crapp’s defense with evidence that he possessed. The state appeals, arguing that Crapp did receive the effective assistance of counsel. The trial court did not err in concluding that counsel’s performance was deficient and likely affected the outcome of the trial. We therefore affirm.

1. Requirement of an enumeration of error.

As a threshold matter we must address Crapp’s argument that the state “has provided this Court with no enumeration of error upon which it may reverse the Superior Court’s order.” Crapp correctly notes that there is no section of the Brief of Appellant entitled “Enumeration of Error.”

In order for a Georgia appellate court to review a trial court ruling for legal error,

a party must set forth in the enumeration of errors the allegedly erroneous ruling. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors. Lee v. State, 265 Ga. 112[, 116 (7)] (454 SE2d 761) (1995); Irvin v. Askew, 241 Ga. 565[, 566 (2)] (246 SE2d 682) (1978).

(Punctuation omitted.) Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

The Brief of Appellant does contain a section entitled “Question Presented.” The body of that section provides, “Was Appellee denied his right to effective assistance of counsel?”

Strictly speaking, that is not an enumeration of error. “An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling.” (Citation omitted.) Felix, supra, 271 Ga. at 539. The state’s “Question Presented” does not identify an allegedly erroneous ruling; it identifies an underlying legal issue. Cf. Fed. R. App. Proc. 28 (a) (5) (requiring that an appellant’s brief contain “a statement of the issues presented for review”).

[745]*745But as to the sufficiency of enumerations of error, our Supreme Court has reminded us,

[t]he General Assembly has made it clear that all points raised in an appeal are to be considered by the appellate court. In addition to the statutory mandate that the [Appellate Practice Act] be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid . . . refusal to consider any points raised therein” (OCGA § 5-6-30), the legislature, in enacting OCGA § 5-6-48 (f), has imposed on the appellate courts a statutory duty to discern what errors an appellant is attempting to articulate. “[If] the enumeration of errors fails to enumerate clearly the errors sought to be reviewed[,]” the appellate court is nonetheless required to consider the appeal “where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, ... what errors are sought to be asserted upon appeal. . . .” OCGA § 5-6-48 (f).

Felix, supra, 271 Ga. at 538. It is readily apparent here that the state seeks to assert a single error: the trial court’s grant of Crapp’s motion for new trial. We therefore proceed to the merits.

2. Ineffective assistance of counsel.

“A claim of ineffective assistance of counsel is a mixed question of law and fact. The proper standard of review requires that we accept the [trial] court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citations omitted.) Head v. Carr, 273 Ga. 613, 616 (4) (544 SE2d 409) (2001). Viewed with these principles in mind, the evidence showed that very early on the morning of February 16, 2007, a robber with what appeared to be a gun in his pocket robbed Tyhesha Strawder of $80 or $90 outside of her home as she was returning from work. The robber entered Strawder’s car and directed her to another location, where the robber took her cell phone and keys, got out, and went up to a house. Five or ten minutes later, the robber returned and directed Strawder to drive to an alley across from Strawder’s house, where he exited the car.

After the robber got out of her car, Strawder drove to a restaurant managed by an acquaintance. The acquaintance called the police. An officer arrived and drove Strawder around, trying to find the house where she had driven the robber. Strawder could not locate the house. She gave the officer a statement.

[746]*746The next morning, Strawder and her mother retraced Strawder’s movements and were able to locate the house to which Strawder had driven the robber. At that house they encountered Lorenzo Simpson. Simpson identified Crapp as the individual who had come to the house the night before and purchased $80 worth of crack cocaine. Simpson knew Crapp because he had sold Crapp crack cocaine for three or four years and Crapp had sold cocaine for him.

Strawder was not able to identify the robber because she did not get a good look at his face. On the night of the incident, Strawder told the officer that the robber was approximately 5' 9" tall. Strawder testified at trial that the robber was taller than defense counsel, whom she estimated was 5'’6" or 5'7". At trial, an officer measured Crapp with a measuring tape as being 5' ’6" tall.

Crapp testified in his own defense and denied the allegations against him. He explained why Simpson might be motivated to identify him as the robber. Crapp owed Simpson money when Crapp came up short on his payment to Simpson for the crack Crapp was selling. Crapp testified that a man named Derry Brooks, who also sold drugs for Simpson, pistol whipped Crapp and robbed him of the money he owed Simpson. Crapp reported the incident to the police and made a written statement, and Brooks was arrested for armed robbery. Crapp ended up in the same jail as Brooks, was threatened, and retracted his statement implicating Brooks.

Crapp believed that Simpson identified him as Strawder’s robber because Crapp had Brooks arrested for armed robbery and because Crapp still owed Simpson money.

The prosecutor cross-examined Crapp on whether the incident with Brooks actually happened, whether he reported it to police, whether he gave a statement, and whether Brooks was arrested. In spite of Crapp’s testimony and cross-examination, Crapp’s trial counsel did not introduce any of the material, such as the Brooks indictment and arrest warrant, to corroborate Crapp’s testimony.

In the state’s closing argument, the prosecutor told the jury:

[Crapp] came up with the idea that he had reported this incident between [him] and Brooks to the police. Certainly there would have been a report made.

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Cite This Page — Counsel Stack

Bluebook (online)
732 S.E.2d 806, 317 Ga. App. 744, 2012 Fulton County D. Rep. 2997, 2012 WL 4497513, 2012 Ga. App. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crapp-gactapp-2012.