Neuman v. State

¶1In the Supreme Court of Georgia

¶2 Decided: March 15, 2021

¶3 S20A1143. NEUMAN v. THE STATE.

¶4 BETHEL, Justice.

¶5 In August 2016, a DeKalb County jury found Hemy Neuman

¶6guilty of the malice murder of Russell Sneiderman and possession of

¶7a firearm during the commission of a felony. This was the second

¶8jury to return guilty verdicts against Neuman as to those offenses.

¶9We reversed Neuman’s convictions following his first trial because

¶10the State had improper access to privileged notes and records of

¶11Neuman’s mental health experts during preparation of the State’s

¶12case. See Neuman v. State, 297 Ga. 501 (773 SE2d 716) (2015).

¶13 Neuman now appeals his convictions from his second trial. 1 He

¶14 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

¶15mentally ill on the malice murder count, 2 the second jury was

¶16collaterally estopped from returning a guilty verdict that did not

¶17include a finding of mental illness on that count. Neuman further

¶18contends that the District Attorney’s Office for the Stone Mountain

¶19Judicial Circuit should have been disqualified from representing the

¶20State in his second trial because the office had access to the

¶21privileged information that resulted in the reversal of his first

¶22convictions. He also alleges that the trial court erroneously limited

¶23his counsel’s examination of two defense witnesses. Finally,

¶24Neuman argues that, to the extent his trial counsel did not preserve

¶25objections during examination of these witnesses, such failure

¶26sentenced 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

¶27illness 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).

¶28 2 constituted ineffective assistance of counsel. Seeing no reversible

¶29error, we affirm.

¶30 Sufficiency of the Evidence

¶31 1. Although not raised by Neuman as error in this appeal, as

¶32has been our customary practice, we consider the sufficiency of the

¶33evidence presented against him at his second trial. 3 The evidence of

¶34how the fatal shooting occurred was similar in the two trials. As set

¶35forth by this Court in our first review of Neuman’s case, this

¶36evidence is summarized as follows:

¶37 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.

¶38 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

¶39 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.

¶40Neuman, 297 Ga. at 501-502 (1).

¶41 The key issue during both trials involved evidence of

¶42Neuman’s mental condition at the time of the shooting. To support

¶43Neuman’s plea of not guilty by reason of insanity, Neuman engaged

¶44the services of psychologist Dr. Andrea Flores. In the second trial,

¶45Dr. Flores testified (largely as she did in the first trial) that Neuman

¶46suffered from bipolar disorder with psychosis. Dr. Flores opined that

¶47Neuman experienced delusions, which made him believe he needed

¶48to kill Sneiderman in order to protect Sneiderman’s children from

¶49harm by their father. She testified that the delusions also compelled

¶50Neuman to lie to the police and make efforts to conceal his identity

¶51so that Sneiderman’s wife would not know how Neuman killed her

¶52husband. Dr. Flores testified that she formed her professional

¶53opinions following an extensive review of Neuman’s medical records,

¶54 4 review of documents and correspondence from Neuman, interviews

¶55with Neuman and others, and a review of tests administered to

¶56Neuman by other professionals. As she did at the first trial, Dr.

¶57Flores testified about her qualifications and the extent of her

¶58investigation and findings in regard to Neuman’s mental health.

¶59 As in the first trial, to counter Dr. Flores’s testimony, “the

¶60State presented testimony from numerous friends, family members,

¶61and co-workers of Neuman who stated that they had never

¶62witnessed any symptoms or behaviors consistent with mental illness

¶63involving manic episodes, delusional thinking, or hallucinations.”

¶64Id. at 502 (1). Additionally, for the second trial, forensic psychologist

¶65Dr. Don Hughey and forensic psychiatrist Dr. Joseph Browning were

¶66engaged by the State to evaluate Neuman’s ability to distinguish

¶67right from wrong at the time of the crimes and whether Neuman

¶68was acting under a delusional compulsion when he killed

¶69Sneiderman. During these evaluations, Neuman admitted killing

¶70Sneiderman. Both State experts testified that there was no evidence

¶71that Neuman suffered from a major mental health disorder or was

¶72 5 delusional on the day of the shooting and explained to the jury that

¶73Neuman’s actions showed that he could distinguish between right

¶74and wrong. Both experts also testified that Neuman showed signs of

¶75malingering 4 during evaluations and was not suffering from any

¶76mental illness. Both testified that Neuman’s hyper-sexuality, the

¶77elaborate nature of the shooting, the efforts Neuman made to cover

¶78it up, and the inconsistent manner in which Neuman described his

¶79delusions made it clear that Neuman was not suffering from any

¶80mental delusions at the time of the shooting.

¶81 At the second trial, the State also presented a recording of a

¶82jail phone call between Neuman and his sister that occurred on

¶83August 4, 2016, during the first trial. In the recording, Neuman

¶84expressed a preference for being found not guilty by reason of

¶85insanity because he would prefer to stay in a mental health facility

¶86instead of a prison.

¶87 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

¶88conclude that the evidence presented during his second trial and

¶89summarized above was sufficient to authorize a rational trier of fact

¶90to find Neuman guilty of malice murder and possession of a firearm

¶91during the commission of a felony. See Jackson v. Virginia, 443 U.

¶92S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); Neuman, 297

¶93Ga. at 502 (1). The jury was likewise authorized to reject Neuman’s

¶94insanity defense and find no mental illness based on its assessment

¶95of the credibility of the witnesses and of any conflicts in the evidence.

¶96See id.; see also Choisnet v. State, 295 Ga. 568, 571 (1) (761 SE2d

¶97322) (2014); Durrence v. State, 287 Ga. 213, 217 (1) (b) (695 SE2d

¶98227) (2010).

¶99 Collateral Estoppel

¶100 2. At Neuman’s first trial, the jury rejected his insanity defense

¶101and found him “guilty but mentally ill” of malice murder. See

¶102Neuman, 297 Ga. at 501 n.1. At Neuman’s second trial, the jury

¶103found him guilty of malice murder with no finding of mental illness.

¶104Neuman urges this Court to determine that the second jury was

¶105 7 collaterally estopped from finding him guilty with no finding of

¶106mental illness on the malice murder count because the first jury

¶107found that he suffered from mental illness. We agree with the State,

¶108however, that this claim was not preserved for appellate review.

¶109 The Fifth Amendment to the United States Constitution

¶110guarantees criminal defendants protection against double jeopardy.

¶111U. S. Const. amend. V. The Fifth Amendment’s bar against double

¶112jeopardy encompasses the doctrine of collateral estoppel, which

¶113precludes the re-litigation of an ultimate fact issue that was

¶114determined by a valid and final judgment. See Giddens v. State, 299

¶115Ga. 109, 112-113 (2) (a) (786 SE2d 659) (2016).5

¶116 Following his first trial, Neuman appealed from his convictions

¶117on the malice murder and firearms possession counts, which

¶118resulted in this Court reversing both of his convictions based on trial

¶119court error. See Neuman, 297 Ga. at 510 (2). He was then re-tried

¶120 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

¶121second trial, nor did he raise the alleged collateral estoppel claim in

¶122any other way at any time during the trial.

¶123 The doctrine of double jeopardy has two components: the

¶124“procedural” bar on double jeopardy, which places limitations on

¶125“multiple prosecutions for crimes arising from the same conduct,”

¶126and the “substantive” bar, which protects against “multiple

¶127convictions or punishments” for such crimes. Stephens v. Hopper,

¶128241 Ga. 597, 598-599 (1) (247 SE2d 92) (1978); see also Carman v.

¶129State, 304 Ga. 21, 26 (2) n.3 (815 SE2d 860) (2018); Keener v. State,

¶130238 Ga. 7, 8 (230 SE2d 846) (1976). Here, it is clear that Neuman’s

¶131retrial on the same charges entailed a successive prosecution.

¶132Accordingly, any resulting double jeopardy claim was procedural in

¶133nature. By failing to file a plea in bar or otherwise contest the

¶134initiation of the second trial on the basis of former jeopardy, Neuman

¶135did not preserve this question for our review, and this enumeration

¶136fails. See McCormick v. Gearinger, 253 Ga. 531, 533 (3) (322 SE2d

¶137716) (1984) (“[Defendant’s] failure to file a written plea in bar before

¶138 9 his second trial operates as a waiver of his subsequent challenge on

¶139double jeopardy grounds.” (citations omitted)); see also Prince v.

¶140State, 299 Ga. App. 164, 171 (4) (682 SE2d 180) (2009) (holding that

¶141failure to file a plea in bar waives appellate review of collateral

¶142estoppel claim); Collins, 266 Ga. App. at 874-875 (2) n.10 (claim

¶143based on procedural double jeopardy was not preserved for appeal

¶144because no plea in bar was filed).

¶145 Disqualification of District Attorney

¶146 3. Neuman next argues that the District Attorney’s Office for

¶147the Stone Mountain Judicial Circuit should have been disqualified

¶148from representing the State in his second trial because it had

¶149improper access to privileged mental health records, which he

¶150argues created a conflict of interest and an appearance of

¶151impropriety. For reasons discussed below, we disagree.

¶152 Prior to his first trial, Neuman’s counsel hired Dr. Peter

¶153Thomas, a licensed psychologist, and Dr. Julie Rand Dorney, a

¶154forensic psychologist, to evaluate Neuman for any psychological

¶155issues to assess the viability of an insanity defense. See Neuman,

¶156 10 297 Ga. at 502-503 (2). Upon learning that both Dr. Dorney and Dr.

¶157Thomas had met with Neuman, the State sought the doctors’

¶158records. See id. at 503 (2). The trial court conducted an in camera

¶159review of the records and ultimately provided the State with the

¶160doctors’ notes and records. See id. The records that were disclosed to

¶161the State included notes from both psychologists of their

¶162impressions of Neuman after several hours of in-person evaluations

¶163and their notes on Neuman’s own self-reports. See id. Notably, the

¶164prosecutors quoted from the doctors’ notes during closing arguments

¶165in the first trial to support the State’s theory that Neuman was

¶166malingering. See id. at 509 (2). On appeal, we held that the trial

¶167court erred in disclosing these records to the State because they were

¶168protected by the attorney-client privilege. See id. at 508 (2). We also

¶169determined that the error was not harmless and reversed Neuman’s

¶170convictions. See id. at 509-510 (2).

¶171 Prior to Neuman’s second trial, the State announced that

¶172Neuman would be tried by the same two assistant district attorneys

¶173who had prosecuted Neuman during his first trial. In response,

¶174 11 Neuman filed a motion to disqualify the entire office of the District

¶175Attorney for the Stone Mountain Judicial Circuit from participating

¶176in the retrial. Neuman noted that the prosecutors were in possession

¶177of and had read the information this Court deemed protected by

¶178attorney-client privilege and should be disqualified from

¶179participating at the retrial. At the hearing on the motion, Neuman

¶180argued that the prosecutors’ possession of this information affected

¶181their preparation of his case, creating a disqualifying interest or

¶182relationship under OCGA § 15-18-5 (a).6 In response, the State

¶183argued that this situation did not constitute a disqualifying interest

¶184or relationship and that the remedy for the State’s possession and

¶185use of privileged information was not disqualification, but rather

¶186complete exclusion of the improper evidence from the second trial.

¶187 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

¶188disqualify, and allowed the two assistant district attorneys to

¶189represent the State again at the second trial. Their representation,

¶190however, was subject to strict limitations on the use of the privileged

¶191material, including excluding the privileged information from

¶192evidence, hiring new experts with no access to the privileged

¶193information, erecting an “ethical screen” within their office, and

¶194destroying all copies of the privileged information.

¶195 We review the trial court’s ruling on a motion to disqualify a

¶196prosecutor for abuse of discretion. See Amusement Sales, Inc. v.

¶197State, 316 Ga. App. 727, 735 (2) (730 SE2d 430) (2012). “Such an

¶198exercise of discretion is based on the trial court’s findings of fact

¶199which we must sustain if there is any evidence to support them.”

¶200Ventura v. State, 346 Ga. App. 309, 310 (2) (816 SE2d 151) (2018).

¶201 Neuman argues that disqualification of the district attorney’s

¶202office from the second trial was the only proper remedy for the

¶203State’s receipt of the privileged information. To support this

¶204position, Neuman cites two cases from other states: State ex rel.

¶205 13 Winkler v. Goldman, 485 SW3d 783, 790-791 (Mo. Ct. App. 2016)

¶206(holding that the prosecutor should be disqualified from the case due

¶207to bad faith conduct in receipt of privileged information), and State

¶208v. Marks, 758 S2d 1131, 1137 (Fla. Dist. Ct. App. 2000) (affirming

¶209disqualification of prosecutor’s office after it received extensive,

¶210“unfettered access” to over 250 confidential case files held by

¶211defendant’s attorney). But we do not view either of these cases as

¶212persuasive in the situation before us.

¶213 Disqualification of the prosecuting attorneys might be

¶214appropriate in a case like Marks, where the privileged information

¶215disclosed to the prosecution was so voluminous that it would cast

¶216doubt on the fairness of the trial absent disqualification of the

¶217prosecuting attorneys who had reviewed the files. In this case,

¶218however, the disclosed information was relatively limited. The

¶219privileged information provided to the prosecutors in this case

¶220consisted only of notes and records from experts who were not called

¶221as witnesses in the second trial. And, per the order of the trial court,

¶222the prosecutors here were barred from making any use of those notes

¶223 14 in the second trial. Further, unlike the situation in Winkler, the

¶224record in this case does not indicate any evidence of bad faith

¶225conduct on the part of the prosecuting attorneys or the District

¶226Attorney’s office, and Neuman conceded at oral argument before this

¶227Court that the State did not engage in any misconduct in obtaining

¶228the privileged information.

¶229 Instead of disqualifying individual prosecutors or a district

¶230attorney’s entire office, the trial court denied the State the benefit of

¶231the privileged evidence at trial and provided the appropriate remedy

¶232for a situation like this. See, e.g., Inman v. State, 294 Ga. 650 (755

¶233SE2d 752) (2014) (after the State received information protected by

¶234the attorney-client privilege, there was no harm from such

¶235disclosure and disqualification of the prosecutor was not required

¶236because the State agreed not to present any of the privileged

¶237information). Therefore, we see no abuse of the trial court’s

¶238discretion in its decision to deny the motion to disqualify.

¶239 Moreover, the record shows that the trial court also took other

¶240reasonable steps before Neuman’s second trial to prohibit the

¶241 15 prosecutors from relying on the information, and it specifically found

¶242that the prosecutors had no unfair advantage in the second trial

¶243based on it. During the hearing on Neuman’s motion for new trial,

¶244the prosecutors represented to the trial court that, as ordered by the

¶245court before the second trial, they had not used the information in

¶246their preparation for the second trial and that they had erected an

¶247“ethical screen” by hiring new experts, destroying all copies of the

¶248documents, and not discussing or otherwise communicating about

¶249the privileged information with each other or anyone in the office of

¶250the District Attorney. Because the trial court was best positioned to

¶251judge the credibility of the prosecutors’ statements, we cannot say

¶252that the trial court erred in relying on these assurances regarding

¶253the additional procedures the State followed to prevent use of the

¶254privileged information. Finally, the same judge presided over both

¶255trials. As with the question of the prosecutors’ credibility, the trial

¶256court was in the best position to determine whether access to the

¶257privileged information infected or tainted the second trial. The trial

¶258court determined that it did not, and we see no abuse of discretion

¶259 16 in that determination. See Inman, 294 Ga. at 653 (2) (a) (no harm

¶260where there is no evidence that the State used — at trial or

¶261otherwise — the privileged information it was provided).

¶262 For these reasons, we see no abuse of discretion in the trial

¶263court’s denial of Neuman’s motion to disqualify the prosecutors who

¶264represented the State in Neuman’s trials. Further, because Neuman

¶265has not demonstrated a basis for disqualification of the specific

¶266prosecutors who handled his case, it follows that disqualification

¶267was not warranted as to the office of the District Attorney as a

¶268whole. This enumeration fails.

¶269 State Objections to Defense Witness Testimony

¶270 4. Neuman complains of numerous alleged errors connected to

¶271the testimony of Neuman’s sister, Monique Matsch, and Dr. Adriana

¶272Flores, a psychologist who examined Neuman. For reasons

¶273discussed below, we identify no reversible error in the trial court’s

¶274management of the defense’s examination of these two witnesses.

¶275 (a) Objections during the Testimony of Monique Matsch

¶276 With regard to Matsch’s testimony, Neuman contends that the

¶277 17 trial court abused its discretion by excluding relevant evidence in

¶278response to objections by the State and that the trial court did not

¶279provide Neuman’s counsel an opportunity to respond to the State’s

¶280objections. We disagree with both contentions.

¶281 (i) Neuman first argues that the trial court erred by sustaining

¶282the State’s relevance objections to Matsch’s testimony regarding

¶283Neuman’s family history as Holocaust survivors, his childhood, and

¶284his personal behavior around the time of the crimes. Neuman claims

¶285that Matsch’s testimony on these points was either relevant to his

¶286defense or would have rebutted testimony of State witnesses.

¶287 Under OCGA § 24-4-401 (“Rule 401”), “relevant evidence” is

¶288“evidence having any tendency to make the existence of any fact that

¶289is of consequence to the determination of the action more probable

¶290or less probable than it would be without the evidence.” OCGA § 24-

¶2914-402 (“Rule 402”) provides that, generally, “[a]ll relevant evidence

¶292shall be admissible, except as limited by constitutional requirements

¶293or as otherwise provided by law or by other rules[.]” For example,

¶294even “[r]elevant evidence may be excluded if its probative value is

¶295 18 substantially outweighed by the danger of unfair prejudice,

¶296confusion of the issues, or misleading the jury, or by considerations

¶297of undue delay, waste of time, or needless presentation of cumulative

¶298evidence.” OCGA § 24-4-403.

¶299 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.

¶300(Citations and punctuation omitted.) Venturino v. State, 306 Ga.

¶301391, 393 (2) (830 SE2d 110) (2019). A trial court error that does not

¶302implicate a constitutional right is harmless if the State shows that

¶303it is “highly probable that the error did not contribute to the verdict,”

¶304an inquiry that involves consideration of the other evidence heard

¶305by the jury. Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671) (2017);

¶306see also Williams v. State, 302 Ga. 147, 153-155 (3) (805 SE2d 873)

¶307(2017); OCGA § 24-1-103 (a) (“Error shall not be predicated upon a

¶308ruling which admits or excludes evidence unless a substantial right

¶309of the party is affected[.]”). “In determining whether the error was

¶310harmless, we review the record de novo and weigh the evidence as

¶311 19 we would expect reasonable jurors to have done so.” (Citation and

¶312punctuation omitted.) Kirby v. State, 304 Ga. 472, 478 (3) (c) (819

¶313SE2d 468) (2018).

¶314 In evaluating whether the trial court’s management of

¶315Matsch’s testimony included an abuse of discretion, it is helpful to

¶316consider some of the testimony Matsch gave during her extended

¶317time on the witness stand. Among other things, Matsch testified

¶318that Neuman had a bad childhood, which included physical and

¶319verbal abuse from his father. Matsch testified that Neuman’s father

¶320drank alcohol irresponsibly and that Neuman bore the brunt of his

¶321father’s abuse in the home and acted to protect his sister from their

¶322father’s abuse. Matsch recounted a particular incident of abuse that

¶323featured their father knocking a bowl of ice cream from Neuman’s

¶324hands as he initiated an abusive assault. Matsch also described a

¶325strained relationship between Neuman’s parents that included

¶326multiple periods of separation during Neuman’s childhood. With

¶327respect to another childhood relationship and experience, Matsch

¶328recounted an incident in which Neuman acted to create a distraction

¶329 20 or diversion that interrupted an attempted sexual assault on Matsch

¶330by her cousin. With respect to Neuman’s behavior later in life,

¶331Matsch relayed details of a prolonged period during a summer while

¶332Neuman was a college student when he was withdrawn and

¶333lethargic. She also relayed stories about interactions with Neuman,

¶334his wife, and children when Neuman was an adult. Matsch also

¶335provided testimony concerning what she perceived as an unusual

¶336email communication she received from Neuman as well as her

¶337perception of Neuman’s unusual demeanor while attending a family

¶338funeral in 2010.

¶339 In the context of Matsch’s entire testimony, the trial court’s

¶340rulings on the State’s relevance objections did not improperly

¶341prohibit the defense from exploring Matsch’s view of the siblings’

¶342shared childhood being raised by Holocaust survivors, the abuse of

¶343Neuman witnessed by Matsch, specific behaviors witnessed by

¶344Matsch, or even Matsch’s perception of Neuman’s demeanor and

¶345behavior. By granting the State’s relevance objections, the trial

¶346court acted to keep Matsch’s testimony focused on the questions

¶347 21 asked by counsel, limited to Matsch’s personal knowledge, and

¶348relevant to the issues being tried. Even with the minor limitations

¶349imposed by the trial court, Neuman was allowed an extensive and

¶350wide-ranging examination of Matsch.

¶351 But, even assuming that the trial court erred in some regard

¶352by sustaining some of the State’s relevance objections and limiting

¶353Matsch’s testimony, all of the additional evidence Neuman suggests

¶354should have been admitted was presented to the jury during the

¶355testimony of Dr. Adriana Flores, the defense’s expert psychologist

¶356who examined Neuman. Dr. Flores testified on these topics based on

¶357information she collected during interviews with Neuman and

¶358others. Accordingly, we determine that even if the trial court abused

¶359its discretion to some extent by excluding Matsch’s testimony on

¶360these issues on relevance grounds, such error was harmless because

¶361the testimony excluded by the trial court on the State’s objections

¶362was duplicative of other portions of Matsch’s own testimony and the

¶363testimony of Dr. Flores. It is therefore highly probable that the

¶364verdicts would have been the same had all of Matsch’s testimony

¶365 22 been admitted over the State’s relevance objections. See Foster v.

¶366State, 272 Ga. 69, 71 (6) (525 SE2d 78) (2000) (excluded testimony

¶367was cumulative of other expert witness’s direct testimony such that

¶368any error in its exclusion was harmless).

¶369 (ii) Neuman also claims that the trial court erred by sustaining

¶370the State’s objection that Matsch’s statements of opinion about

¶371Neuman’s behavior were non-responsive to questions asked by

¶372defense counsel. Specifically, Neuman’s counsel asked Matsch

¶373whether she recalled a time when Neuman had protected Matsch

¶374from their cousin; Matsch said that she did. Matsch was then asked

¶375what Neuman did to protect her, and she began to describe years of

¶376abuse she had suffered at the hands of their cousin. The State

¶377objected to these statements as being non-responsive, and the trial

¶378court sustained the objection.

¶379 Neuman argues that Matsch was merely beginning to answer

¶380the question and providing context for her answer and that the trial

¶381court erred by limiting her response. However, in this instance, we

¶382see no abuse of the trial court’s discretion in its determination that

¶383 23 Matsch’s answer was unresponsive to the specific question asked,

¶384and Neuman never made additional efforts to have Matsch answer

¶385the question directly. Because OCGA § 24-6-611 (a) (2) provides the

¶386trial court with broad discretion to exercise “reasonable control” over

¶387the presentation of witnesses and evidence “to avoid needless

¶388consumption of time,” we see no abuse of discretion in the trial

¶389court’s decision to sustain this objection by the State. See Rickman

¶390v. State, 304 Ga. 61, 64 (2) (816 SE2d 4) (2018).

¶391 (iii) As to the remaining objections made by the State during

¶392Matsch’s testimony that were sustained by the trial court and of

¶393which Neuman now complains, Neuman argues that the trial court

¶394sustained these objections without providing the basis for sustaining

¶395them and failed to provide the defense an opportunity to respond to

¶396the objection before ruling. However, the record shows several

¶397instances in which the trial court offered reasons for sustaining the

¶398objections that Neuman claims were not provided. Further, nothing

¶399in the record supports the allegation that Neuman was not provided

¶400an opportunity to respond to these objections. In each such instance,

¶401 24 Neuman’s counsel simply proceeded to a different line of questioning

¶402without responding to the State’s objection or to the trial court’s

¶403ruling on the record. Neuman has objected to these rulings only on

¶404the basis that his counsel was not afforded an opportunity to

¶405respond to the trial court’s rulings and has not offered this Court

¶406any argument for why we should determine that the trial court’s

¶407rulings on these objections constituted an abuse of discretion.

¶408Having failed to carry his burden of demonstrating error, Neuman’s

¶409enumerations of error regarding the trial court’s handling of these

¶410objections fail.

¶411 (b) Objections during the Testimony of Dr. Adriana Flores

¶412 Neuman also argues that the trial court erred by sustaining

¶413numerous objections made by the State during the direct testimony

¶414of Dr. Flores and during Dr. Flores’s surrebuttal testimony.

¶415 (i) Neuman first claims that the trial court erred by limiting

¶416Dr. Flores’s testimony while Neuman’s counsel was qualifying Dr.

¶417Flores as an expert witness. Neuman vaguely argues that testimony

¶418about the details of the assessment protocol for patients in a hospital

¶419 25 unit where Dr. Flores previously worked was relevant under Rule

¶420401 to qualify Dr. Flores as an expert in the field of psychology. We

¶421disagree.

¶422 First, the specific assessment protocols used in Dr. Flores’s

¶423previous employment seem to have little bearing on her qualification

¶424as an expert. Despite excluding testimony about those protocols, the

¶425trial court accepted Dr. Flores as an expert for the defense.

¶426Moreover, the trial court did not expressly limit this testimony or

¶427indicate that Neuman was prohibited from revisiting the subject.

¶428Instead, the record shows that the trial court merely granted the

¶429State’s relevance objection to a question about protocols utilized in

¶430her previous role and authorized Neuman’s counsel to rephrase a

¶431question about these protocols during Dr. Flores’s voir dire. The

¶432record shows that Neuman’s counsel declined to do so. For these

¶433reasons, we see no abuse of the trial court’s discretion in its ruling

¶434on this objection.

¶435 (ii) Neuman also claims that the trial court erred by refusing

¶436to allow Dr. Flores to testify in response to questions about

¶437 26 Neuman’s statements regarding his family’s history of mental

¶438illness and actions and statements of the victim’s wife, Andrea

¶439Sneiderman, leading up to the shooting. Neuman argues that the

¶440statements were admissible under the hearsay exception contained

¶441in OCGA § 24-8-803 (4) (“Rule 803 (4)”) because they were made for

¶442the purposes of medical diagnosis or treatment, and under OCGA §

¶44324-7-703 (“Rule 703”) because Dr. Flores relied on those statements

¶444in concluding that Neuman suffered from severe mental illness and

¶445was not malingering. We conclude that Neuman has failed to

¶446demonstrate reversible error.

¶447 During the defense’s case-in-chief, Dr. Flores discussed her

¶448evaluation and her diagnosis of Neuman’s bipolar disorder. At one

¶449point during the trial, the court refused to allow Dr. Flores to discuss

¶450third-party statements about Neuman’s medical and psychological

¶451history from Neuman’s colleagues, family, and friends that she had

¶452interviewed, and what she had learned about Andrea Sneiderman’s

¶453actions and statements. However, the trial court repeatedly clarified

¶454that Dr. Flores could testify about what Neuman told her regarding

¶455 27 both of these subjects.

¶456 Even if we assume that the trial court abused its discretion by

¶457limiting Dr. Flores’s testimony about these subjects, such error was

¶458harmless because the excluded testimony was cumulative of other

¶459admitted evidence. First, when the State’s objection was sustained

¶460regarding the statements made by third parties to Dr. Flores, Dr.

¶461Flores had already testified about the contents of the statements

¶462made by those she interviewed concerning Neuman’s mental health

¶463history. Second, after Dr. Flores was limited from discussing

¶464Neuman’s family mental health history during her direct

¶465examination, Neuman’s counsel re-asked these questions during Dr.

¶466Flores’s surrebuttal testimony and was able to elicit this testimony

¶467without objection from the State. The people that Dr. Flores

¶468interviewed about Neuman also testified at trial, and their

¶469testimony largely tracked what they had told Dr. Flores during their

¶470interviews. Finally, Dr. Flores also described Andrea Sneiderman’s

¶471actions and statements without objection during her surrebuttal

¶472testimony. Accordingly, Neuman has failed to demonstrate how the

¶473 28 specific testimony sought from Dr. Flores would have changed the

¶474outcome of the trial if it had been given at the time of the sustained

¶475objections. See Shealey v. State, 308 Ga. 847, 853-854 (2) (b) (843

¶476SE2d 864) (2020) (erroneous exclusion of evidence was harmless

¶477because excluded evidence was cumulative of other evidence

¶478admitted at trial); Reaves v. State, 292 Ga. 545, 548 (2) (d) (739 SE2d

¶479368) (2013) (same).

¶480 We note that Neuman has also represented that, had the trial

¶481court overruled such objections in the second trial, Dr. Flores would

¶482have testified in the second trial precisely as she did in the first trial.

¶483Given the overwhelming evidence from numerous witnesses —

¶484including expert witnesses and Neuman’s family, colleagues, and

¶485friends — that Neuman displayed no signs of mental illness and was

¶486malingering, we see no reasonable probability that the second trial’s

¶487outcome would have differed had Dr. Flores’s testimony been

¶488presented exactly as it was in the first trial. See Walker v. State, 306

¶489Ga. 44, 47 (2) (306 SE2d 121) (2019) (any error in excluding evidence

¶490was harmless because such evidence was cumulative of other

¶491 29 evidence presented as to appellant’s defense at trial); see also Harris

¶492v. State, 256 Ga. 350, 377 (3) (349 SE2d 374) (1986) (court’s assumed

¶493error in handling of expert testimony was harmless because of

¶494overwhelming evidence of defendant’s guilt and against his defense

¶495of insanity).

¶496 (iii) Neuman further claims that the trial court erred by

¶497excluding as irrelevant Dr. Flores’s testimony about the housing

¶498protocol in correctional facilities for individuals found not guilty by

¶499reason of insanity, 7 about whether Dr. Flores thought Andrea

¶500Sneiderman’s actions in sending Neuman pictures were

¶501appropriate, about Neuman’s statements to Dr. Flores about how

¶502Neuman felt about Andrea Sneiderman prior to the shooting, and

¶503about whether Dr. Flores had any concerns that Neuman could be

¶504malingering. Neuman argues that such evidence was relevant under

¶505Rule 401.

¶506 First, we note that a review of the nearly two trial days’ worth

¶507 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,

¶508about each of these issues during her direct testimony and later

¶509during her surrebuttal testimony without objection by the State.

¶510Additionally, the record shows that when the trial court granted the

¶511State’s objections, it regularly suggested that Neuman’s counsel

¶512could rephrase the question, and the court consistently allowed

¶513counsel to revisit lines of questioning. Further, as with the

¶514objections above, even assuming trial court error with regard to the

¶515specific objections, we find no reasonable probability that any error

¶516in the trial court’s exclusion of the statements at issue contributed

¶517to the verdicts, especially considering the exhaustive testimony Dr.

¶518Flores did provide and the overwhelming evidence that Neuman was

¶519malingering. Thus, any error in this regard was harmless. See

¶520Kirby, 304 Ga. at 478; see also Walker, 306 Ga. at 47 (2).

¶521 (iv) As to the State’s remaining objections during the defense’s

¶522examination of Dr. Flores, Neuman provides neither argument nor

¶523citation of authority as to why it was error for the trial court to

¶524sustain such objections or how Neuman was harmed by such alleged

¶525 31 errors. It is not the function of this Court to cull the record for a

¶526party to find alleged errors or to form arguments on the appellant’s

¶527behalf. See Henderson v. State, 304 Ga. 733, 739 (2) (e) (822 SE2d

¶528228) (2018); Roberson v. State, 300 Ga. 632, 636 (III) (797 SE2d 104)

¶529(2017) (“It is well established that the burden is on the party alleging

¶530error to show it by the record[.]” (citation and punctuation omitted)).

¶531This Court’s Rule 22 provides that “[a]ny enumerated error not

¶532supported by argument or citation of authority in the brief shall be

¶533deemed abandoned.” We deem these portions of Neuman’s claim of

¶534error to be abandoned.

¶535 Ineffective Assistance of Counsel

¶536 5. With respect to the objections discussed in Divisions 4 (a)

¶537(iii) and (b) (iv) above, Neuman contends that his trial counsel

¶538provided constitutionally ineffective assistance by failing to respond

¶539to these objections by the State. We disagree.

¶540 To succeed on his claims, Neuman must show that his counsel’s

¶541performance was professionally deficient and that he suffered

¶542prejudice as a result. See Strickland v. Washington, 466 U. S. 668,

¶543 32 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient

¶544performance, Neuman must prove that his lawyer “performed his

¶545duties in an objectively unreasonable way, considering all the

¶546circumstances and in the light of prevailing professional norms.”

¶547Thornton v. State, 307 Ga. 121, 126 (3) (834 SE2d 814) (2019).

¶548Further, “[t]o establish prejudice, [Neuman] must prove that there

¶549is a reasonable probability that, but for counsel’s deficiency, the

¶550result of the trial would have been different.” Id. “It is not enough

¶551‘to show that the errors had some conceivable effect on the outcome

¶552of the proceeding.’” Harrington v. Richter, 562 U. S. 86, 104 (IV) (131

¶553SCt 770, 178 LE2d 624) (2011) (quoting Strickland, 466 U. S. at 693

¶554(III) (B)). Rather, Neuman must establish a “reasonable probability”

¶555of a different result, which means “a probability sufficient to

¶556undermine confidence in the outcome.” Strickland, 466 U. S. at 694

¶557(III) (B). We need not address both components of this test if

¶558Neuman has not proved one of them. See Walker v. State, 301 Ga.

¶559482, 489 (4) (801 SE2d 804) (2017).

¶560 Strickland places a heavy burden on the defendant to

¶561 33 “affirmatively prove” prejudice. Pierce v. State, 286 Ga. 194, 198 (4)

¶562(686 SE2d 656) (2009). Even assuming that trial counsel’s failure to

¶563respond to the State’s objections constituted deficient performance,

¶564Neuman has not shown — or even argued — how the failure by trial

¶565counsel to respond to the objections individually or cumulatively

¶566prejudiced him. He has thus failed to demonstrate that there is a

¶567reasonable probability the trial would have had a different outcome

¶568had counsel provided responses to the State’s objections. Because

¶569Neuman has not satisfied his burden of demonstrating prejudice, his

¶570claim of ineffective assistance of counsel fails. 8

¶571 Judgment affirmed. All the Justices concur.

¶572 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).

¶573 34