Neuman v. StateNeuman v. State
In August 2016, a DeKalb County jury found Hemy Neuman guilty of the malice murder of Russell Sneiderman and possession of a firearm during the commission of a felony. This was the second jury to return guilty verdicts against Neuman as to those offenses. We reversed Neuman‘s convictions following his first trial because the State had improper access to privileged notes and records of Neuman‘s mental health experts during preparation of the State‘s case. See Neuman v. State, 297 Ga. 501 (773 SE2d 716) (2015). Neuman now appeals his convictions from his second trial.1 He
Sufficiency of the Evidence
1. Although not raised by Neuman as error in this appeal, as has been our customary practice, we consider the sufficiency of the evidence presented against him at his second trial.3 The evidence of how the fatal shooting occurred was similar in the two trials. As set forth by this Court in our first review of Neuman‘s case, this evidence is summarized as follows:
Shortly after 9:00 a.m. on November 18, 2010, Russell Sneiderman was walking to his car outside of a Dunwoody daycare center after having just dropped off his son, when Neuman approached and shot him four [or] five times in the neck and torso. Sneiderman was pronounced dead approximately an hour later.
Neuman does not dispute that he planned and perpetrated Sneiderman‘s murder. He admitted [to police and psychologists that] he had an affair with Sneiderman‘s wife, planned Sneiderman‘s murder, purchased a disguise and a gun, rented a car, shot
Sneiderman, threw the gun in a lake, disposed of the disguise, asked the person from whom he had purchased the gun to lie to the police, and lied to the police himself. Additionally, witnesses from the scene at the daycare identified Neuman as the shooter during trial. Ballistic evidence showed that the bullets that killed Sneiderman matched the gun Neuman had purchased.
Neuman, 297 Ga. at 501-502 (1).
The key issue during both trials involved evidence of Neuman‘s mental condition at the time of the shooting. To support Neuman‘s plea of not guilty by reason of insanity, Neuman engaged the services of psychologist Dr. Andrea Flores. In the second trial, Dr. Flores testified (largely as she did in the first trial) that Neuman suffered from bipolar disorder with psychosis. Dr. Flores opined that Neuman experienced delusions, which made him believe he needed to kill Sneiderman in order to protect Sneiderman‘s children from harm by their father. She testified that the delusions also compelled Neuman to lie to the police and make efforts to conceal his identity so that Sneiderman‘s wife would not know how Neuman killed her husband. Dr. Flores testified that she formed her professional opinions following an extensive review of Neuman‘s medical records,
As in the first trial, to counter Dr. Flores‘s testimony, “the State presented testimony from numerous friends, family members, and co-workers of Neuman who stated that they had never witnessed any symptoms or behaviors consistent with mental illness involving manic episodes, delusional thinking, or hallucinations.” Id. at 502 (1). Additionally, for the second trial, forensic psychologist Dr. Don Hughey and forensic psychiatrist Dr. Joseph Browning were engaged by the State to evaluate Neuman‘s ability to distinguish right from wrong at the time of the crimes and whether Neuman was acting under a delusional compulsion when he killed Sneiderman. During these evaluations, Neuman admitted killing Sneiderman. Both State experts testified that there was no evidence that Neuman suffered from a major mental health disorder or was
At the second trial, the State also presented a recording of a jail phone call between Neuman and his sister that occurred on August 4, 2016, during the first trial. In the recording, Neuman expressed a preference for being found not guilty by reason of insanity because he would prefer to stay in a mental health facility instead of a prison.
Collateral Estoppel
2. At Neuman‘s first trial, the jury rejected his insanity defense and found him “guilty but mentally ill” of malice murder. See Neuman, 297 Ga. at 501 n.1. At Neuman‘s second trial, the jury found him guilty of malice murder with no finding of mental illness. Neuman urges this Court to determine that the second jury was
The Fifth Amendment to the United States Constitution guarantees criminal defendants protection against double jeopardy.
Following his first trial, Neuman appealed from his convictions on the malice murder and firearms possession counts, which resulted in this Court reversing both of his convictions based on trial court error. See Neuman, 297 Ga. at 510 (2). He was then re-tried
The doctrine of double jeopardy has two components: the “procedural” bar on double jeopardy, which places limitations on “multiple prosecutions for crimes arising from the same conduct,” and the “substantive” bar, which protects against “multiple convictions or punishments” for such crimes. Stephens v. Hopper, 241 Ga. 597, 598-599 (1) (247 SE2d 92) (1978); see also Carman v. State, 304 Ga. 21, 26 (2) n.3 (815 SE2d 860) (2018); Keener v. State, 238 Ga. 7, 8 (230 SE2d 846) (1976). Here, it is clear that Neuman‘s retrial on the same charges entailed a successive prosecution. Accordingly, any resulting double jeopardy claim was procedural in nature. By failing to file a plea in bar or otherwise contest the initiation of the second trial on the basis of former jeopardy, Neuman did not preserve this question for our review, and this enumeration fails. See McCormick v. Gearinger, 253 Ga. 531, 533 (3) (322 SE2d 716) (1984) (“[Defendant‘s] failure to file a written plea in bar before
Disqualification of District Attorney
3. Neuman next argues that the District Attorney‘s Office for the Stone Mountain Judicial Circuit should have been disqualified from representing the State in his second trial because it had improper access to privileged mental health records, which he argues created a conflict of interest and an appearance of impropriety. For reasons discussed below, we disagree.
Prior to his first trial, Neuman‘s counsel hired Dr. Peter Thomas, a licensed psychologist, and Dr. Julie Rand Dorney, a forensic psychologist, to evaluate Neuman for any psychological issues to assess the viability of an insanity defense. See Neuman, 297 Ga. at 502-503 (2). Upon learning that both Dr. Dorney and Dr. Thomas had met with Neuman, the State sought the doctors’ records. See id. at 503 (2). The trial court conducted an in camera review of the records and ultimately provided the State with the doctors’ notes and records. See id. The records that were disclosed to the State included notes from both psychologists of their impressions of Neuman after several hours of in-person evaluations and their notes on Neuman‘s own self-reports. See id. Notably, the prosecutors quoted from the doctors’ notes during closing arguments in the first trial to support the State‘s theory that Neuman was malingering. See id. at 509 (2). On appeal, we held that the trial court erred in disclosing these records to the State because they were protected by the attorney-client privilege. See id. at 508 (2). We also determined that the error was not harmless and reversed Neuman‘s convictions. See id. at 509-510 (2).
Prior to Neuman‘s second trial, the State announced that Neuman would be tried by the same two assistant district attorneys who had prosecuted Neuman during his first trial. In response,
We review the trial court‘s ruling on a motion to disqualify a prosecutor for abuse of discretion. See Amusement Sales, Inc. v. State, 316 Ga. App. 727, 735 (2) (730 SE2d 430) (2012). “Such an exercise of discretion is based on the trial court‘s findings of fact which we must sustain if there is any evidence to support them.” Ventura v. State, 346 Ga. App. 309, 310 (2) (816 SE2d 151) (2018).
Neuman argues that disqualification of the district attorney‘s office from the second trial was the only proper remedy for the State‘s receipt of the privileged information. To support this position, Neuman cites two cases from other states: State ex rel. Winkler v. Goldman, 485 SW3d 783, 790-791 (Mo. Ct. App. 2016) (holding that the prosecutor should be disqualified from the case due to bad faith conduct in receipt of privileged information), and State v. Marks, 758 S2d 1131, 1137 (Fla. Dist. Ct. App. 2000) (affirming disqualification of prosecutor‘s office after it received extensive, “unfettered access” to over 250 confidential case files held by defendant‘s attorney). But we do not view either of these cases as persuasive in the situation before us.
Disqualification of the prosecuting attorneys might be appropriate in a case like Marks, where the privileged information disclosed to the prosecution was so voluminous that it would cast doubt on the fairness of the trial absent disqualification of the prosecuting attorneys who had reviewed the files. In this case, however, the disclosed information was relatively limited. The privileged information provided to the prosecutors in this case consisted only of notes and records from experts who were not called as witnesses in the second trial. And, per the order of the trial court, the prosecutors here were barred from making any use of those notes
Instead of disqualifying individual prosecutors or a district attorney‘s entire office, the trial court denied the State the benefit of the privileged evidence at trial and provided the appropriate remedy for a situation like this. See, e.g., Inman v. State, 294 Ga. 650 (755 SE2d 752) (2014) (after the State received information protected by the attorney-client privilege, there was no harm from such disclosure and disqualification of the prosecutor was not required because the State agreed not to present any of the privileged information). Therefore, we see no abuse of the trial court‘s discretion in its decision to deny the motion to disqualify.
Moreover, the record shows that the trial court also took other reasonable steps before Neuman‘s second trial to prohibit the
For these reasons, we see no abuse of discretion in the trial court‘s denial of Neuman‘s motion to disqualify the prosecutors who represented the State in Neuman‘s trials. Further, because Neuman has not demonstrated a basis for disqualification of the specific prosecutors who handled his case, it follows that disqualification was not warranted as to the office of the District Attorney as a whole. This enumeration fails.
State Objections to Defense Witness Testimony
4. Neuman complains of numerous alleged errors connected to the testimony of Neuman‘s sister, Monique Matsch, and Dr. Adriana Flores, a psychologist who examined Neuman. For reasons discussed below, we identify no reversible error in the trial court‘s management of the defense‘s examination of these two witnesses.
(a) Objections during the Testimony of Monique Matsch
With regard to Matsch‘s testimony, Neuman contends that the
(i) Neuman first argues that the trial court erred by sustaining the State‘s relevance objections to Matsch‘s testimony regarding Neuman‘s family history as Holocaust survivors, his childhood, and his personal behavior around the time of the crimes. Neuman claims that Matsch‘s testimony on these points was either relevant to his defense or would have rebutted testimony of State witnesses.
Under
We review a trial court‘s evidentiary rulings under an abuse of discretion standard of review. And even where an abuse of discretion is shown, there are no grounds for reversal if the error did not affect a substantial right, and thus harm, the defendant.
(Citations and punctuation omitted.) Venturino v. State, 306 Ga. 391, 393 (2) (830 SE2d 110) (2019). A trial court error that does not implicate a constitutional right is harmless if the State shows that it is “highly probable that the error did not contribute to the verdict,” an inquiry that involves consideration of the other evidence heard by the jury. Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671) (2017); see also Williams v. State, 302 Ga. 147, 153-155 (3) (805 SE2d 873) (2017);
In evaluating whether the trial court‘s management of Matsch‘s testimony included an abuse of discretion, it is helpful to consider some of the testimony Matsch gave during her extended time on the witness stand. Among other things, Matsch testified that Neuman had a bad childhood, which included physical and verbal abuse from his father. Matsch testified that Neuman‘s father drank alcohol irresponsibly and that Neuman bore the brunt of his father‘s abuse in the home and acted to protect his sister from their father‘s abuse. Matsch recounted a particular incident of abuse that featured their father knocking a bowl of ice cream from Neuman‘s hands as he initiated an abusive assault. Matsch also described a strained relationship between Neuman‘s parents that included multiple periods of separation during Neuman‘s childhood. With respect to another childhood relationship and experience, Matsch recounted an incident in which Neuman acted to create a distraction
In the context of Matsch‘s entire testimony, the trial court‘s rulings on the State‘s relevance objections did not improperly prohibit the defense from exploring Matsch‘s view of the siblings’ shared childhood being raised by Holocaust survivors, the abuse of Neuman witnessed by Matsch, specific behaviors witnessed by Matsch, or even Matsch‘s perception of Neuman‘s demeanor and behavior. By granting the State‘s relevance objections, the trial court acted to keep Matsch‘s testimony focused on the questions
But, even assuming that the trial court erred in some regard by sustaining some of the State‘s relevance objections and limiting Matsch‘s testimony, all of the additional evidence Neuman suggests should have been admitted was presented to the jury during the testimony of Dr. Adriana Flores, the defense‘s expert psychologist who examined Neuman. Dr. Flores testified on these topics based on information she collected during interviews with Neuman and others. Accordingly, we determine that even if the trial court abused its discretion to some extent by excluding Matsch‘s testimony on these issues on relevance grounds, such error was harmless because the testimony excluded by the trial court on the State‘s objections was duplicative of other portions of Matsch‘s own testimony and the testimony of Dr. Flores. It is therefore highly probable that the verdicts would have been the same had all of Matsch‘s testimony
(ii) Neuman also claims that the trial court erred by sustaining the State‘s objection that Matsch‘s statements of opinion about Neuman‘s behavior were non-responsive to questions asked by defense counsel. Specifically, Neuman‘s counsel asked Matsch whether she recalled a time when Neuman had protected Matsch from their cousin; Matsch said that she did. Matsch was then asked what Neuman did to protect her, and she began to describe years of abuse she had suffered at the hands of their cousin. The State objected to these statements as being non-responsive, and the trial court sustained the objection.
Neuman argues that Matsch was merely beginning to answer the question and providing context for her answer and that the trial court erred by limiting her response. However, in this instance, we see no abuse of the trial court‘s discretion in its determination that
(iii) As to the remaining objections made by the State during Matsch‘s testimony that were sustained by the trial court and of which Neuman now complains, Neuman argues that the trial court sustained these objections without providing the basis for sustaining them and failed to provide the defense an opportunity to respond to the objection before ruling. However, the record shows several instances in which the trial court offered reasons for sustaining the objections that Neuman claims were not provided. Further, nothing in the record supports the allegation that Neuman was not provided an opportunity to respond to these objections. In each such instance,
(b) Objections during the Testimony of Dr. Adriana Flores
Neuman also argues that the trial court erred by sustaining numerous objections made by the State during the direct testimony of Dr. Flores and during Dr. Flores‘s surrebuttal testimony.
(i) Neuman first claims that the trial court erred by limiting Dr. Flores‘s testimony while Neuman‘s counsel was qualifying Dr. Flores as an expert witness. Neuman vaguely argues that testimony about the details of the assessment protocol for patients in a hospital
First, the specific assessment protocols used in Dr. Flores‘s previous employment seem to have little bearing on her qualification as an expert. Despite excluding testimony about those protocols, the trial court accepted Dr. Flores as an expert for the defense. Moreover, the trial court did not expressly limit this testimony or indicate that Neuman was prohibited from revisiting the subject. Instead, the record shows that the trial court merely granted the State‘s relevance objection to a question about protocols utilized in her previous role and authorized Neuman‘s counsel to rephrase a question about these protocols during Dr. Flores‘s voir dire. The record shows that Neuman‘s counsel declined to do so. For these reasons, we see no abuse of the trial court‘s discretion in its ruling on this objection.
(ii) Neuman also claims that the trial court erred by refusing to allow Dr. Flores to testify in response to questions about
During the defense‘s case-in-chief, Dr. Flores discussed her evaluation and her diagnosis of Neuman‘s bipolar disorder. At one point during the trial, the court refused to allow Dr. Flores to discuss third-party statements about Neuman‘s medical and psychological history from Neuman‘s colleagues, family, and friends that she had interviewed, and what she had learned about Andrea Sneiderman‘s actions and statements. However, the trial court repeatedly clarified that Dr. Flores could testify about what Neuman told her regarding
Even if we assume that the trial court abused its discretion by limiting Dr. Flores‘s testimony about these subjects, such error was harmless because the excluded testimony was cumulative of other admitted evidence. First, when the State‘s objection was sustained regarding the statements made by third parties to Dr. Flores, Dr. Flores had already testified about the contents of the statements made by those she interviewed concerning Neuman‘s mental health history. Second, after Dr. Flores was limited from discussing Neuman‘s family mental health history during her direct examination, Neuman‘s counsel re-asked these questions during Dr. Flores‘s surrebuttal testimony and was able to elicit this testimony without objection from the State. The people that Dr. Flores interviewed about Neuman also testified at trial, and their testimony largely tracked what they had told Dr. Flores during their interviews. Finally, Dr. Flores also described Andrea Sneiderman‘s actions and statements without objection during her surrebuttal testimony. Accordingly, Neuman has failed to demonstrate how the
We note that Neuman has also represented that, had the trial court overruled such objections in the second trial, Dr. Flores would have testified in the second trial precisely as she did in the first trial. Given the overwhelming evidence from numerous witnesses — including expert witnesses and Neuman‘s family, colleagues, and friends — that Neuman displayed no signs of mental illness and was malingering, we see no reasonable probability that the second trial‘s outcome would have differed had Dr. Flores‘s testimony been presented exactly as it was in the first trial. See Walker v. State, 306 Ga. 44, 47 (2) (306 SE2d 121) (2019) (any error in excluding evidence was harmless because such evidence was cumulative of other
(iii) Neuman further claims that the trial court erred by excluding as irrelevant Dr. Flores‘s testimony about the housing protocol in correctional facilities for individuals found not guilty by reason of insanity,7 about whether Dr. Flores thought Andrea Sneiderman‘s actions in sending Neuman pictures were appropriate, about Neuman‘s statements to Dr. Flores about how Neuman felt about Andrea Sneiderman prior to the shooting, and about whether Dr. Flores had any concerns that Neuman could be malingering. Neuman argues that such evidence was relevant under Rule 401.
First, we note that a review of the nearly two trial days’ worth
(iv) As to the State‘s remaining objections during the defense‘s examination of Dr. Flores, Neuman provides neither argument nor citation of authority as to why it was error for the trial court to sustain such objections or how Neuman was harmed by such alleged
Ineffective Assistance of Counsel
5. With respect to the objections discussed in Divisions 4 (a) (iii) and (b) (iv) above, Neuman contends that his trial counsel provided constitutionally ineffective assistance by failing to respond to these objections by the State. We disagree.
To succeed on his claims, Neuman must show that his counsel‘s performance was professionally deficient and that he suffered prejudice as a result. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient performance, Neuman must prove that his lawyer “performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms.” Thornton v. State, 307 Ga. 121, 126 (3) (834 SE2d 814) (2019). Further, “[t]o establish prejudice, [Neuman] must prove that there is a reasonable probability that, but for counsel‘s deficiency, the result of the trial would have been different.” Id. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.‘” Harrington v. Richter, 562 U. S. 86, 104 (IV) (131 SCt 770, 178 LE2d 624) (2011) (quoting Strickland, 466 U. S. at 693 (III) (B)). Rather, Neuman must establish a “reasonable probability” of a different result, which means “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). We need not address both components of this test if Neuman has not proved one of them. See Walker v. State, 301 Ga. 482, 489 (4) (801 SE2d 804) (2017).
Strickland places a heavy burden on the defendant to
Judgment affirmed. All the Justices concur.