Neuman v. State

• Decision Date: 15 March 2021
• Docket Number: S20A1143
• Citation: 311 Ga. 83,856 S.E.2d 289
• Court: Georgia Supreme Court
• Parties: NEUMAN v. The STATE.

311 Ga. 83

856 S.E.2d 289

NEUMAN

v.The STATE.

S20A1143

Supreme Court of Georgia.

Decided: March 15, 2021

Michael W. Tarleton, Veronica M. O'Grady, for appellant.

Sherry Boston, District Attorney, Deborah D. Wellborn, Anna G. Cross, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.

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 S.E.2d 716 (2015).

Neuman now appeals his convictions from his second trial.¹ He 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 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 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), 773 S.E.2d 716.

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, 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."

Neuman , 297 Ga. at 502 (1), 773 S.E.2d 716. 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 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 malingering⁴ 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.

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 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Neuman , 297 Ga. at 502 (1), 773 S.E.2d 716. 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 S.E.2d 322 (2014) ; Durrence v. State , 287 Ga. 213, 217 (1) (b), 695 S.E.2d 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, 773 S.E.2d 716. 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 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 S.E.2d 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), 773 S.E.2d 716. He was then retried 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. 596, 598-599 (1), 247 S.E.2d 92 (1978) ; see also Carman v. State , 304 Ga. 21, 26 (2) n.3, 815 S.E.2d 860 (2018) ; Keener v. State , 238 Ga. 7, 8, 230 S.E.2d 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 S.E.2d 716 (1984) ("[Defendant's] failure to file a written plea in bar before 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 S.E.2d 180 (2009) (holding that failure to file a plea in bar waives appellate review of collateral estoppel claim); Collins v. State , 266 Ga. App. 871, 874-875 (2) n.10, 601 S.E.2d 111 (2004) (claim based on procedural double jeopardy was not preserved for appeal...