Neuman v. State ( 2021 )

In the Supreme Court of Georgia
Decided: March 15, 2021
S20A1143. NEUMAN v. THE STATE.
BETHEL, Justice.
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
1Neuman’s first trial in 2012 resulted in a guilty but mentally ill verdict
on the malice murder count and a guilty verdict on the firearm possession
count. Following our remand in 2015, Neuman was retried from August 1 to
23, 2016, and found guilty on both counts. On August 23, 2016, the trial court
contends that because the first jury returned a verdict of guilty but
mentally ill on the malice murder count, 2 the second jury was
collaterally estopped from returning a guilty verdict that did not
include a finding of mental illness on that count. Neuman further
contends 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 the office had access to the
privileged information that resulted in the reversal of his first
convictions. He also alleges that the trial court erroneously limited
his counsel’s examination of two defense witnesses. Finally,
Neuman argues that, to the extent his trial counsel did not preserve
objections during examination of these witnesses, such failure
sentenced Neuman to serve life in prison without parole for the malice murder
count and five consecutive years for the firearm possession count. On
September 19, 2016, Neuman filed a motion for a new trial, which he
subsequently amended twice. Following a hearing, the trial court denied
Neuman’s motion on July 31, 2019. Neuman filed a timely notice of appeal on
August 29, 2019. This case was docketed to this Court’s August 2020 term and
was orally argued on September 16, 2020.
2 In Georgia, juries presented with evidence of a defendant’s mental
illness may return a verdict of guilty but mentally ill. See OCGA § 17-7-131 (b)
(1) (D); see also Morgan v. State, 307 Ga. 889, 891 (1) (838 SE2d 878) (2020).
2
constituted ineffective assistance of counsel. Seeing no reversible
error, we affirm.
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
3 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that began in December 2020. See Davenport v. State, 309 Ga.
385, 399 (4) (846 SE2d 83) (2020). The Court began assigning cases to the
December Term on August 3, 2020.
3
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,
4
review of documents and correspondence from Neuman, interviews
with Neuman and others, and a review of tests administered to
Neuman by other professionals. As she did at the first trial, Dr.
Flores testified about her qualifications and the extent of her
investigation and findings in regard to Neuman’s mental health.
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
5
delusional on the day of the shooting and explained to the jury that
Neuman’s actions showed that he could distinguish between right
and wrong. Both experts also testified that Neuman showed signs of
malingering 4 during evaluations and was not suffering from any
mental illness. Both testified that Neuman’s hyper-sexuality, the
elaborate nature of the shooting, the efforts Neuman made to cover
it up, and the inconsistent manner in which Neuman described his
delusions made it clear that Neuman was not suffering from any
mental delusions at the time of the shooting.
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.
4 As defined by Dr. Hughey at trial, “[m]alingering is the deliberate
fabrication or exaggeration of psychiatric or physical symptoms of the person
for secondary gain. Secondary gain could be something like evading criminal
prosecutions, or in a civil litigation, to obtain disability without just cause.”
6
As with the evidence presented during Neuman’s first trial, we
conclude that the evidence presented during his second trial and
summarized above was sufficient to authorize a rational trier of fact
to find Neuman guilty of malice murder and possession of a firearm
during the commission of a felony. See Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Neuman, 297
Ga. at 502 (1). The jury was likewise authorized to reject Neuman’s
insanity defense and find no mental illness based on its assessment
of the credibility of the witnesses and of any conflicts in the evidence.
See id.; see also Choisnet v. State, 295 Ga. 568, 571 (1) (761 SE2d
322) (2014); Durrence v. State, 287 Ga. 213, 217 (1) (b) (695 SE2d
227) (2010).
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
7
collaterally estopped from finding him guilty with no finding of
mental illness on the malice murder count because the first jury
found that he suffered from mental illness. We agree with the State,
however, that this claim was not preserved for appellate review.
The Fifth Amendment to the United States Constitution
guarantees criminal defendants protection against double jeopardy.
U. S. Const. amend. V. The Fifth Amendment’s bar against double
jeopardy encompasses the doctrine of collateral estoppel, which
precludes the re-litigation of an ultimate fact issue that was
determined by a valid and final judgment. See Giddens v. State, 299
Ga. 109, 112-113 (2) (a) (786 SE2d 659) (2016).5
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
5 Neuman has not argued in this appeal that the jury’s verdict on the
malice murder charge in the second trial was barred by the double jeopardy
clause of the Georgia Constitution. See Ga. Const. of 1983, Art. 1, Sec. 1, Par.
XVIII. Thus, we limit our review of his claim to whether the verdict was barred
by the Fifth Amendment to the United States Constitution.
8
on those same counts. Neuman did not file a plea in bar prior to the
second trial, nor did he raise the alleged collateral estoppel claim in
any other way at any time during the trial.
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
9
his second trial operates as a waiver of his subsequent challenge on
double jeopardy grounds.” (citations omitted)); see also Prince v.
State, 299 Ga. App. 164, 171 (4) (682 SE2d 180) (2009) (holding that
failure to file a plea in bar waives appellate review of collateral
estoppel claim); Collins, 266 Ga. App. at 874-875 (2) n.10 (claim
based on procedural double jeopardy was not preserved for appeal
because no plea in bar was filed).
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,
10
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,
11
Neuman filed a motion to disqualify the entire office of the District
Attorney for the Stone Mountain Judicial Circuit from participating
in the retrial. Neuman noted that the prosecutors were in possession
of and had read the information this Court deemed protected by
attorney-client privilege and should be disqualified from
participating at the retrial. At the hearing on the motion, Neuman
argued that the prosecutors’ possession of this information affected
their preparation of his case, creating a disqualifying interest or
relationship under OCGA § 15-18-5 (a).6 In response, the State
argued that this situation did not constitute a disqualifying interest
or relationship and that the remedy for the State’s possession and
use of privileged information was not disqualification, but rather
complete exclusion of the improper evidence from the second trial.
6 Neuman argues that OCGA § 15-18-5 (a) establishes that a district
attorney may be disqualified by motion of the defendant due to an “interest or
relationship.” But that is incorrect. OCGA § 15-18-5 (a), instead, provides the
procedure that the Attorney General follows to designate or appoint another
prosecuting attorney to handle a prosecution “[w]hen a district attorney’s office
is disqualified from interest or relationship.” Put another way, OCGA § 15-18-
5 (a) is not the source of a test for disqualification. Rather, it is a procedure
used to address a disqualification. The grounds for disqualification come from
other sources of law.
12
The trial court agreed with the State, denied Neuman’s motion to
disqualify, and allowed the two assistant district attorneys to
represent the State again at the second trial. Their representation,
however, was subject to strict limitations on the use of the privileged
material, including excluding the privileged information from
evidence, hiring new experts with no access to the privileged
information, erecting an “ethical screen” within their office, and
destroying all copies of the privileged information.
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.
13
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
14
in the second trial. Further, unlike the situation in Winkler, the
record in this case does not indicate any evidence of bad faith
conduct on the part of the prosecuting attorneys or the District
Attorney’s office, and Neuman conceded at oral argument before this
Court that the State did not engage in any misconduct in obtaining
the privileged information.
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
15
prosecutors from relying on the information, and it specifically found
that the prosecutors had no unfair advantage in the second trial
based on it. During the hearing on Neuman’s motion for new trial,
the prosecutors represented to the trial court that, as ordered by the
court before the second trial, they had not used the information in
their preparation for the second trial and that they had erected an
“ethical screen” by hiring new experts, destroying all copies of the
documents, and not discussing or otherwise communicating about
the privileged information with each other or anyone in the office of
the District Attorney. Because the trial court was best positioned to
judge the credibility of the prosecutors’ statements, we cannot say
that the trial court erred in relying on these assurances regarding
the additional procedures the State followed to prevent use of the
privileged information. Finally, the same judge presided over both
trials. As with the question of the prosecutors’ credibility, the trial
court was in the best position to determine whether access to the
privileged information infected or tainted the second trial. The trial
court determined that it did not, and we see no abuse of discretion
16
in that determination. See Inman, 294 Ga. at 653 (2) (a) (no harm
where there is no evidence that the State used — at trial or
otherwise — the privileged information it was provided).
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
17
trial court abused its discretion by excluding relevant evidence in
response to objections by the State and that the trial court did not
provide Neuman’s counsel an opportunity to respond to the State’s
objections. We disagree with both contentions.
(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 OCGA § 24-4-401 (“Rule 401”), “relevant evidence” is
“evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” OCGA § 24-
4-402 (“Rule 402”) provides that, generally, “[a]ll relevant evidence
shall be admissible, except as limited by constitutional requirements
or as otherwise provided by law or by other rules[.]” For example,
even “[r]elevant evidence may be excluded if its probative value is
18
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” OCGA § 24-4-403.
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); OCGA § 24-1-103 (a) (“Error shall not be predicated upon a
ruling which admits or excludes evidence unless a substantial right
of the party is affected[.]”). “In determining whether the error was
harmless, we review the record de novo and weigh the evidence as
19
we would expect reasonable jurors to have done so.” (Citation and
punctuation omitted.) Kirby v. State, 304 Ga. 472, 478 (3) (c) (819
SE2d 468) (2018).
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
20
or diversion that interrupted an attempted sexual assault on Matsch
by her cousin. With respect to Neuman’s behavior later in life,
Matsch relayed details of a prolonged period during a summer while
Neuman was a college student when he was withdrawn and
lethargic. She also relayed stories about interactions with Neuman,
his wife, and children when Neuman was an adult. Matsch also
provided testimony concerning what she perceived as an unusual
email communication she received from Neuman as well as her
perception of Neuman’s unusual demeanor while attending a family
funeral in 2010.
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
21
asked by counsel, limited to Matsch’s personal knowledge, and
relevant to the issues being tried. Even with the minor limitations
imposed by the trial court, Neuman was allowed an extensive and
wide-ranging examination of Matsch.
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
22
been admitted over the State’s relevance objections. See Foster v.
State, 272 Ga. 69, 71 (6) (525 SE2d 78) (2000) (excluded testimony
was cumulative of other expert witness’s direct testimony such that
any error in its exclusion was harmless).
(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
23
Matsch’s answer was unresponsive to the specific question asked,
and Neuman never made additional efforts to have Matsch answer
the question directly. Because OCGA § 24-6-611 (a) (2) provides the
trial court with broad discretion to exercise “reasonable control” over
the presentation of witnesses and evidence “to avoid needless
consumption of time,” we see no abuse of discretion in the trial
court’s decision to sustain this objection by the State. See Rickman
v. State, 304 Ga. 61, 64 (2) (816 SE2d 4) (2018).
(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,
24
Neuman’s counsel simply proceeded to a different line of questioning
without responding to the State’s objection or to the trial court’s
ruling on the record. Neuman has objected to these rulings only on
the basis that his counsel was not afforded an opportunity to
respond to the trial court’s rulings and has not offered this Court
any argument for why we should determine that the trial court’s
rulings on these objections constituted an abuse of discretion.
Having failed to carry his burden of demonstrating error, Neuman’s
enumerations of error regarding the trial court’s handling of these
objections fail.
(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
25
unit where Dr. Flores previously worked was relevant under Rule
401 to qualify Dr. Flores as an expert in the field of psychology. We
disagree.
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
26
Neuman’s statements regarding his family’s history of mental
illness and actions and statements of the victim’s wife, Andrea
Sneiderman, leading up to the shooting. Neuman argues that the
statements were admissible under the hearsay exception contained
in OCGA § 24-8-803 (4) (“Rule 803 (4)”) because they were made for
the purposes of medical diagnosis or treatment, and under OCGA §
24-7-703 (“Rule 703”) because Dr. Flores relied on those statements
in concluding that Neuman suffered from severe mental illness and
was not malingering. We conclude that Neuman has failed to
demonstrate reversible error.
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
27
both of these subjects.
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
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specific testimony sought from Dr. Flores would have changed the
outcome of the trial if it had been given at the time of the sustained
objections. See Shealey v. State, 308 Ga. 847, 853-854 (2) (b) (843
SE2d 864) (2020) (erroneous exclusion of evidence was harmless
because excluded evidence was cumulative of other evidence
admitted at trial); Reaves v. State, 292 Ga. 545, 548 (2) (d) (739 SE2d
368) (2013) (same).
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
29
evidence presented as to appellant’s defense at trial); see also Harris
v. State, 256 Ga. 350, 377 (3) (349 SE2d 374) (1986) (court’s assumed
error in handling of expert testimony was harmless because of
overwhelming evidence of defendant’s guilt and against his defense
of insanity).
(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
7 These are the same sort of protocols that formed the basis of the State’s
objection during the voir dire of Dr. Flores discussed above in Division 4 (b) (i).
30
of Dr. Flores’s testimony reveals that she did testify, to some extent,
about each of these issues during her direct testimony and later
during her surrebuttal testimony without objection by the State.
Additionally, the record shows that when the trial court granted the
State’s objections, it regularly suggested that Neuman’s counsel
could rephrase the question, and the court consistently allowed
counsel to revisit lines of questioning. Further, as with the
objections above, even assuming trial court error with regard to the
specific objections, we find no reasonable probability that any error
in the trial court’s exclusion of the statements at issue contributed
to the verdicts, especially considering the exhaustive testimony Dr.
Flores did provide and the overwhelming evidence that Neuman was
malingering. Thus, any error in this regard was harmless. See
Kirby, 304 Ga. at 478; see also Walker, 306 Ga. at 47 (2).
(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
31
errors. It is not the function of this Court to cull the record for a
party to find alleged errors or to form arguments on the appellant’s
behalf. See Henderson v. State, 304 Ga. 733, 739 (2) (e) (822 SE2d
228) (2018); Roberson v. State, 300 Ga. 632, 636 (III) (797 SE2d 104)
(2017) (“It is well established that the burden is on the party alleging
error to show it by the record[.]” (citation and punctuation omitted)).
This Court’s Rule 22 provides that “[a]ny enumerated error not
supported by argument or citation of authority in the brief shall be
deemed abandoned.” We deem these portions of Neuman’s claim of
error to be abandoned.
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,
32
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
33
“affirmatively prove” prejudice. Pierce v. State, 286 Ga. 194, 198 (4)
(686 SE2d 656) (2009). Even assuming that trial counsel’s failure to
respond to the State’s objections constituted deficient performance,
Neuman has not shown — or even argued — how the failure by trial
counsel to respond to the objections individually or cumulatively
prejudiced him. He has thus failed to demonstrate that there is a
reasonable probability the trial would have had a different outcome
had counsel provided responses to the State’s objections. Because
Neuman has not satisfied his burden of demonstrating prejudice, his
claim of ineffective assistance of counsel fails. 8
Judgment affirmed. All the Justices concur.
8 Neuman makes no argument that all the errors we assume today,
though individually harmless, nevertheless harmed him when aggregated.
And no such cumulative prejudice is apparent to us on this record. See State v.
Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] defendant who wishes to
take advantage of the [cumulative error rule] should explain to the reviewing
court just how he was prejudiced by the cumulative effect of multiple errors.”);
Armstrong v. State, ___ Ga. ___ (5) n.13 (852 SE2d 824) (2020).
34