SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 2, 2012
In the Court of Appeals of Georgia A12A1344. THE STATE v. CRAPP. MC-051C
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
2 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. Pro. 28 (a)
(5) (requiring that an appellant’s brief contain “a statement of the issues presented for
review”).
But as to the sufficiency of enumerations of error, our Supreme Court has
reminded us,
The 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).
3 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. at 616 (4). Viewed with these
principles in mind, the evidence showed that very early 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
4 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.
The 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
5 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.
Free access — add to your briefcase to read the full text and ask questions with AI
SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 2, 2012
In the Court of Appeals of Georgia A12A1344. THE STATE v. CRAPP. MC-051C
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
2 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. Pro. 28 (a)
(5) (requiring that an appellant’s brief contain “a statement of the issues presented for
review”).
But as to the sufficiency of enumerations of error, our Supreme Court has
reminded us,
The 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).
3 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. at 616 (4). Viewed with these
principles in mind, the evidence showed that very early 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
4 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.
The 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
5 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 he and Brooks to the police. Certainly there would have been a report made.
...
[I]f we had the report, then we could tender that. They have got the same option and the same ability to tender evidence just as I do. In fact, they
6 did tender some evidence. . . . If there had been such a police report, they could have tendered that as well.
She also told the jury:
Then we talked about Derry Brooks. Apparently the defendant knew Derry Brooks all of this time. He knew his name before yesterday and he knew his name in sufficient time in advance of this trial to get a picture of him. They would have you believe that it was not sufficient enough time to get a copy of a report or whatever statement that the defendant wrote about him when the incident happened between Mr. Crapp and Mr. Brooks. That is not reasonable.
About three or four months before trial, Crapp told trial counsel that Simpson
would identify him as the person he had encountered the night of the robbery because
of Crapp’s prior dealings with Simpson and Brooks. Trial counsel recalled Simpson’s
bias as follows: Simpson employed both Crapp and Brooks as drug dealers; Crapp
owed some kind of debt to Simpson; and Simpson ordered Brooks to rob Crapp at
gunpoint. Trial counsel actually pulled the indictment of Brooks.
Trial counsel did not believe the Brooks indictment would be admissible
because it ultimately was dismissed. He also was concerned that to introduce the
indictment, the arrest warrant and other documents corroborating Crapp’s testimony
would negatively impact Crapp’s credibility because Crapp withdrew his accusation,
7 resulting in dismissal of the charge against Brooks; it would show that Crapp was
willing to put someone in jail and willing to lie to get him out. He acknowledged that
this information nevertheless mirrored Crapp’s testimony . In spite of the prosecutor’s
cross-examination of Crapp underscoring the point that there should have been
documents corroborating his testimony, trial counsel did not think that introducing
the documents was necessary because Crapp’s testimony was believable and the
documents added nothing to what Crapp had already said. Trial counsel was aware
that Strawder did not identify Crapp as the robber and gave a description of the
robber that “did not really match” Crapp. He knew that the primary evidence
connecting Crapp to the crime was Simpson’s testimony.
To prevail on his claim of ineffective assistance of counsel, Crapp was required
to show both deficient performance by trial counsel and actual prejudice. Strickland
v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984); Smith
v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). When determining deficient
performance,
we address not what is prudent or appropriate, but only what is constitutionally compelled. The appropriate test for whether [Crapp’s] counsel was deficient is whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.
8 Perfection is not required; an ineffectiveness analysis is simply intended to ensure that the adversarial process at trial worked adequately.
(Citations and punctuation omitted.) Head v. Carr, 273 Ga. 613, 625 (4) (C) (3) (544
SE2d 409) (2001). As for the prejudice component, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, supra,
466 U. S. at 694 (III) (B). In other words, the defendant must show that “there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Id. at 695 (III) (B).
The case was a pure credibility contest between Simpson and Crapp. And in
such cases, defense counsel’s failure to introduce available evidence that corroborates
a defendant’s testimony supports a finding that counsel’s performance was deficient.
See Gibson v. State, 280 Ga. App. 435, (634 SE2d 204) (2006) (trial counsel rendered
deficient performance when entire defense to vehicular homicide charges hinged on
defendant’s testimony that his light was green at the time of the collision yet counsel
failed to introduce records of prior occasions where light showed green in all four
directions). See also Hart v. Gomez, 174 F.3d 1067, 1067-1071 (I, II) (9th Cir. 1999)
9 (counsel’s failure to introduce documents that corroborated testimony crucial to the
defense amounted to deficient performance). The trial court did not err in concluding
that trial counsel’s performance was deficient.
“In close cases, where the evidence presented by the state is thin, mistakes
made by trial counsel take on greater significance.” Zant v. Moon, 264 Ga. 93, 99 (2)
(440 SE2d 657) (1994). See Strickland, 466 U.S. at 696 (III) (B) (“[A] verdict or
conclusion only weakly supported by the record is more likely to have been affected
by [counsel’s] errors”).”[S]ince the evidence against [Crapp] was not overwhelming,
resting largely upon the identification testimony of one witness, . . . a reasonable
probability exists that the presence of [the corroborating evidence] would have
affected the result.” Richardson v. State, 189 Ga. App. 113, 114 (375 SE2d 59)
(1988). The trial court did not err in concluding that there is a reasonable probability
that, but for counsel’s deficient performance, the result of the proceeding would have
been different. Strickland, 466 U. S. at 694 (III) (B). See also Miller v. State, 285 Ga.
285 (676 SE2d 173) (2009).
Judgment affirmed. Barnes, P. J., and Adams, J., concur.