Neuman v. State
| Decision Date | 15 June 2015 |
| Docket Number | No. S15A0011.,S15A0011. |
| Citation | 773 S.E.2d 716,297 Ga. 501 |
| Parties | NEUMAN v. The STATE. |
| Court | Georgia Supreme Court |
Miller & Key, J. Scott Key ; Peters, Rubin & Sheffield, Douglas N. Peters, Robert G. Rubin, for appellant.
Robert D. James, Jr., Dist. Atty., Anna G. Cross, Deborah D. Wellborn, Asst. Dist. Attys.; Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Clint C. Malcolm, Asst. Atty. Gen., for appellee.
Appellant Hemy Neuman was indicted and tried for murder and firearm possession in connection with the shooting death of Russell “Rusty” Sneiderman. Neuman pled not guilty by reason of insanity, claiming that he suffered from mental illness that rendered him incapable of distinguishing between right and wrong in relation to his crimes. The jury found Neuman guilty but mentally ill, and Neuman now appeals, contending that the trial court erred in ruling on the admission and exclusion of certain evidence. Because the trial court erred in admitting evidence, which was protected by the attorney-client privilege, we now reverse.1
Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. Shortly after 9:00 a.m. on November 18, 2010, 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 to 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 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.
At trial, both Neuman and the State presented expert witnesses who opined on Neuman's mental capacity at the time of the shooting. Neuman's experts concluded that he suffered from “bipolar disorder with psychosis, experiencing delusions,” which made Neuman (1) incapable of distinguishing between right and wrong, (2) believe he needed to kill Sneiderman in order to protect Sneiderman's children from harm by their father, and (3) lie to police and take efforts to conceal his identity so that Sneiderman's wife would not know he killed her husband. Neuman's experts concluded that he was not malingering and had suffered depressive and manic episodes throughout his life consistent with their diagnosis of bipolar disorder. In rebuttal, the State presented experts who concluded that Neuman was able to distinguish right from wrong at the time of the shooting and that the symptoms and behaviors he reported were inconsistent with genuine mental illness. In particular, one of the State's experts believed Neuman was faking symptoms of mental illness, while another State expert opined that Neuman showed no signs of mental illness, hallucinations, or delusions while in jail. Additionally, the State presented testimony from numerous friends and co-workers of Neuman who stated that they had never witnessed any symptoms or behaviors consistent with a mental illness involving manic episodes, delusional thinking, or hallucinations, and that to the contrary, Neuman was high functioning.
1. Though Neuman has not enumerated the general grounds, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Neuman was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury was likewise authorized to reject Neuman's insanity defense.2 See Choisnet v. State, 295 Ga. 568(1), 761 S.E.2d 322 (2014) ; Durrence v. State, 287 Ga. 213(1)(b), 695 S.E.2d 227 (2010).
2. Neuman contends that the trial court erred in its failure to quash the subpoenas of Dr. Peter Thomas, a licensed psychologist, and Dr. Julie Rand Dorney, a forensic psychiatrist. After Neuman entered a plea of not guilty, his counsel began investigating Neuman's psychological state at the time of the shooting. At the request of Neuman's attorneys, Dr. Rand Dorney and Dr. Thomas met with Neuman to initially evaluate his psychological issues, and they reported their findings to Neuman's attorneys. Upon the advice of these doctors, Neuman's attorneys then hired an expert witness to conduct a forensic psychological evaluation of Neuman to assess his criminal responsibility. After this expert's evaluation, Neuman changed his plea of not guilty to not guilty by a reason of insanity.
Upon learning that both Dr. Rand Dorney and Dr. Thomas had met with Neuman, the State sought the doctors' records, over Neuman's objections. After two hearings, the court ordered that both Dr. Rand Dorney and Dr. Thomas “turn over all records in [their] possession concerning [their] evaluation(s) and interview(s)” of Neuman for an in camera review. After this review, the court provided the State with the doctors' notes concerning their evaluations of Neuman and Neuman's statements to them. It is undisputed that up until this time, Neuman's attorneys had never intended to call Dr. Rand Dorney or Dr. Thomas to testify at trial. However, in light of the court's rulings, the defense anticipated that the State would call the doctors as rebuttal witnesses, and therefore, needed to call them as part of the defense's case-in-chief.3
Neuman argues that the trial court erred in allowing the State access to the doctors' notes and evaluation of him and statements he made to the doctors because this evidence is protected by the attorney-client privilege.4 For reasons explained below, we agree, and we reject the State's contention that merely raising an insanity defense waives the attorney-client privilege for these communications.
The attorney-client privilege is “the oldest of the privileges for confidential communications known to the common law,” Upjohn Co. v. United States, 449 U.S. 383, 389(II), 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), and has long been recognized in Georgia. See Fire Ass'n of Philadelphia v. Fleming, 78 Ga. 733(3), 3 S.E. 420 (1887). The privilege allows for open communications between an attorney and his or her client, free from apprehension of compelled disclosures, thereby enabling the attorney to gather complete and accurate information about the client's situation. See Paul S. Milich, Georgia Rules of Evidence, § 21:1, at 857–858 (2014–2015 ed.).
Davis v. State, 285 Ga. 343, 350, 676 S.E.2d 215 (2009) (Sears, C.J., concurring); see Taylor v. Taylor, 179 Ga. 691, 692–693, 177 S.E. 582 (1934) ; Fire Ass'n of Philadelphia, 78 Ga. at 738, 3 S.E. 420 ; Milich, § 21:3, at 861.
Consistent with this general principle, and after a review of authority from other states on this issue, we join numerous other jurisdictions in holding that the attorney-client privilege applies to confidential communications, related to the matters on which legal advice is being sought, between the attorneys, their agents, or their client, and an expert engaged by the attorney to aid in the client's representation; the privilege is not waived if the expert will neither serve as a witness at trial nor provide any basis for the formulation of other experts' trial testimony. See, e.g., United States v. Alvarez, 519 F.2d 1036, 1045–1047 (3d Cir.1975) (); People v. Knuckles, 165 Ill.2d 125, 209 Ill.Dec. 1, 650 N.E.2d 974, 981(II) (1995) (); State v. Hitopoulus, 279 S.C. 549, 309 S.E.2d 747 (1983) (); Houston v. State, 602 P.2d 784, 789–790 (Alaska 1979) (); State v. Pratt, 284 Md. 516, 398 A.2d 421, 424 (1979) (); People v. Hilliker, 29 Mich.App. 543, 185 N.W.2d 831, 833–834 (1971) ().5 If counsel later elects to call the expert as a witness at trial, the cloak of privilege ends.
Here, Neuman's co...
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