State of Tennessee v. Nehad Sobhi Abdelnabi

06/26/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
March 27, 2018 Session
STATE OF TENNESSEE v. NEHAD SOBHI ABDELNABI
Appeal from the Criminal Court for Knox County
No. 100273A Steven Wayne Sword, Judge
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No. E2017-00237-CCA-R3-CD
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The Knox County Grand Jury indicted the Defendant, Nehad Sobhi Abdelnabi, on two
counts of especially aggravated kidnapping, two counts of aggravated assault, and one
count of aggravated burglary. The Defendant’s first trial resulted in a mistrial. At the
Defendant’s second trial, the jury convicted him of aggravated kidnapping in count one,
especially aggravated kidnapping in count two, and aggravated assault in counts three
and four. The jury acquitted the Defendant of aggravated burglary in count five. The
trial court sentenced the Defendant to serve twelve years for count one, seventeen years
for count two, and six years for counts three and four, respectively. The trial court
merged the Defendant’s conviction in count one into count two and merged count four
into count three and ordered that he serve the sentences concurrently, for a total effective
sentence of seventeen years in the Tennessee Department of Correction (TDOC) at 100%
release eligibility. On appeal, the Defendant argues the following: (1) the trial court erred
in denying the Defendant’s motion to dismiss the indictment because the State violated
the rule against double jeopardy by intentionally eliciting objectionable testimony from a
State witness in the Defendant’s first trial; (2) the trial court erred by denying the
Defendant’s motion for mistrial when the victim told the Defendant to “[b]e a man” and
“[t]ake the stand” during the victim’s cross-examination; (3) the State committed
prosecutorial misconduct by allowing the victim’s objectionable testimony, which
violated the Defendant’s right to not testify; (4) the victim’s objectionable testimony and
“the subsequent denial of the motion for mistrial[] violated his constitutional right to a
fair trial”; (5) the trial court erred by limiting the Defendant’s cross-examination of the
co-defendant, Lowi Akila, which violated the Defendant’s right to confrontation; (6) the
trial court erred by excluding testimony regarding the victim’s alleged bias; (7) the trial
court erred under Tennessee Rule of Evidence 604 and Tennessee Supreme Court Rule
42 in denying the Defendant’s request to require witnesses to testify in the language that
the testimony was originally given in; (8) the trial court violated the Defendant’s right to
due process by allowing witnesses to testify in English about conversations that occurred
in Arabic; (9) the trial court erred by admitting the victim’s medical records; (10) the
State violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose that the
victim received compensation from the State of Tennessee; (11) the evidence was
insufficient for a rational juror to have found the Defendant guilty of aggravated
kidnapping, especially aggravated kidnapping, and aggravated assault beyond a
reasonable doubt; (12) the trial court erred in its application of enhancement factors to the
Defendant’s sentence; (13) the Defendant’s sentence contravenes the principles and
purposes of the Tennessee Sentencing Act; and (14) the Defendant is entitled to
cumulative error relief. After a thorough review of the facts and applicable case law, we
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and J. ROSS DYER, JJ., joined.
Robert L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for the appellant,
Nehad Sobhi Abdelnabi.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Charme Allen, District Attorney General; and Kevin Allen, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural History
This case arises from the kidnapping and assault of the victim, Naser Ferwanah,
by the Defendant and co-defendant, Lowi Fathi Akila, on February 1, 2012. On
September 18, 2012, the Knox County Grand Jury indicted the Defendant on two counts
of especially aggravated kidnapping, two counts of aggravated assault, and one count of
aggravated burglary. The Defendant’s case proceeded to trial in November 2015. The
trial court granted the Defendant’s motion for mistrial after Mr. Akila referred to a
previous incident where the Defendant allegedly threatened another man with a gun.
The State’s Proof
At the Defendant’s second trial, Michael Mays testified that he worked for the
Knox County Emergency Communications District as the keeper of the records. He
stated that someone called 911 on February 2, 2012, around 1:56 a.m. from a residence
on Halifax Road regarding an assault.
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Naser Ferwanah testified that he was born in Palestine and immigrated to the
United States in 1992. Mr. Ferwanah visited the Defendant in Knoxville in 1992 but did
not move to Knoxville until 2005. Mr. Ferwanah went to high school in Palestine with
the Defendant. Prior to moving to Knoxville, Mr. Ferwanah owned a business that was in
financial trouble, and the Defendant lent him $13,000 to help the business. Mr. Ferwanah
had visited with the Defendant and his family in the past, but he had never been alone
with the Defendant’s wife. Mr. Ferwanah also visited the Defendant at his business,
Electronics Tech, about once a month. In December 2011, the Defendant called Mr.
Ferwanah and asked if they could meet. Mr. Ferwanah agreed to meet the Defendant
after he recovered from an illness. On January 3, Mr. Ferwanah drove to Electronics
Tech to speak with the Defendant. The Defendant commented that Mr. Ferwanah looked
sick and asked to see Mr. Ferwanah’s skin. The Defendant said that he would talk with
Mr. Ferwanah later because Mr. Ferwanah was still feeling ill.
A few days later, the Defendant called Mr. Ferwanah and asked to stop by Mr.
Ferwanah’s house to speak with him. Mr. Ferwanah stated that the Defendant appeared
nervous, but his behavior was not otherwise unusual. Mr. Ferwanah invited the
Defendant to come into his house and sit down. The Defendant asked Mr. Ferwanah to
go get his Quran and his oldest son, who was at school. Mr. Ferwanah explained that, in
his community, individuals would swear on the Quran in the presence of their oldest son
to tell the truth. Mr. Ferwanah obtained his Quran, and the Defendant asked him if he
had a “relationship” with the Defendant’s wife. Mr. Ferwanah explained that the
Defendant was referring to an extramarital affair. Mr. Ferwanah swore on his Quran that
he was not having an affair with the Defendant’s wife. Mr. Ferwanah asked the
Defendant why he believed that Mr. Ferwanah was having an affair with his wife, and the
Defendant stated that the description of the individuals in a video1 fit his wife and Mr.
Ferwanah.
Later that day, Mr. Ferwanah picked his children up from school and took his
oldest son to Electronics Tech to again swear that he was not having an affair with the
Defendant’s wife. The Defendant told Mr. Ferwanah that he believed Mr. Ferwanah.
The Defendant mentioned a video that showed his wife having sex with another man
from the neck down. The Defendant explained that he had a friend who was a former
FBI agent who was analyzing the video for the Defendant to determine the identity of the
man. The Defendant asked Mr. Ferwanah to pull up his shirt so the Defendant could take
a photograph of Mr. Ferwanah’s chest to compare to the video. Mr. Ferwanah complied.
1
As explained later in this opinion, the Defendant believed that a pornographic video on the
internet depicted his wife and Mr. Ferwanah engaging in sexual intercourse.
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A few days after the Defendant took a photograph of Mr. Ferwanah’s chest, Mr.
Ferwanah called the Defendant and asked who told the Defendant about the video that
allegedly depicted the Defendant’s wife. The Defendant told Mr. Ferwanah not to worry
about it and invited Mr. Ferwanah to go to dinner with him and one of his employees,
Lowi Akila. Mr. Ferwanah knew Mr. Akila from high school in Palestine, but he was not
friends with Mr. Akila. Neither the Defendant nor Mr. Ferwanah brought up the video at
dinner. After they finished eating, the Defendant suggested that the three men meet for
dinner every week. On January 31, 2012, the Defendant asked to come over to Mr.
Ferwanah’s residence. When the Defendant arrived, he asked to see Mr. Ferwanah’s
bedroom because he was remodeling his own residence. The Defendant also asked to see
Mr. Ferwanah’s attic. While Mr. Ferwanah was in his attic, he accidentally stepped
through the drywall; the Defendant agreed to send someone to Mr. Ferwanah’s residence
the next day to repair the drywall. The Defendant stopped by Mr. Ferwanah’s house the
next day, February 1, to check on the drywall repair. Mr. Ferwanah stated that the
Defendant appeared nervous. The Defendant asked Mr. Ferwanah to have dinner with
him after the repair was complete.
Mr. Ferwanah drove to Electronics Tech that evening between 6:30 and 7:00 p.m.
and stayed in his vehicle while he waited for the Defendant and Mr. Akila to come out of
the business. However, the Defendant waved at Mr. Ferwanah to come into the store.
The Defendant stated that he wanted to show Mr. Ferwanah how someone can get untied
if they are tied up. Inside Electronics Tech, the Defendant asked Mr. Ferwanah and Mr.
Akila to sit in wooden chairs in the office area. The Defendant locked the door, tied Mr.
Akila’s hands to the chair arms, and put duct tape around Mr. Akila’s chest. The
Defendant then tied Mr. Ferwanah’s hand to the chair arms and taped Mr. Ferwanah’s
chest and legs to the chair. The Defendant untied Mr. Akila and said, “Let’s go.” A
masked man2 came into the room from the garage door. The masked man and the
Defendant lifted Mr. Ferwanah’s chair, walked to the garage, and threw Mr. Ferwanah
onto the concrete floor. Mr. Akila was behind Mr. Ferwanah, so Mr. Ferwanah was
unsure if Mr. Akila also helped carry the chair. Mr. Ferwanah’s chair broke, but his
hands and legs were still tied to the chair pieces. The masked man tied Mr. Ferwanah’s
hands behind his back with a zip tie, and the Defendant began hitting Mr. Ferwanah with
a baseball bat and kicking him. The masked man hit Mr. Ferwanah with a “two-by-four.”
The Defendant informed Mr. Ferwanah that he had “guys waiting outside” that were
going to take Mr. Ferwanah and throw him into the Tennessee River to drown. Mr.
Ferwanah was screaming and asking the Defendant to let him go. The Defendant told
Mr. Ferwanah that he would let Mr. Ferwanah go if Mr. Ferwanah gave him the tapes.
Mr. Ferwanah told the Defendant that he did not have any tapes, and the Defendant
2
Mr. Ferwanah testified that the Defendant called this man “Sam.”
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continued kicking Mr. Ferwanah. Mr. Ferwanah stated that the Defendant also had a gun
and a knife on a table.
Mr. Ferwanah testified that, during the assault, Mr. Akila held a camera. After the
Defendant assaulted Mr. Ferwanah, the Defendant and Mr. Akila went back into the
office area. Mr. Akila returned to the garage area and told Mr. Ferwanah that the
Defendant would let him go if he gave the Defendant the tapes. The Defendant then
returned to the garage and continued assaulting Mr. Ferwanah. Mr. Akila and the
Defendant continued alternating between assaulting Mr. Ferwanah and asking for the
tapes. At one point, the Defendant opened and closed the gun to show Mr. Ferwanah that
it was loaded and pointed it at Mr. Ferwanah’s head. The Defendant also wanted Mr.
Ferwanah to watch a video that allegedly showed the Defendant’s wife, but Mr.
Ferwanah refused to watch the video. When Mr. Ferwanah was unable to remain on his
knees, Mr. Akila untied him. The assault lasted between two and three hours. The
Defendant and Mr. Akila dragged Mr. Ferwanah to a table in the garage and asked Mr.
Ferwanah for his passwords to various accounts on the internet. The masked man
pointed the gun at Mr. Ferwanah’s head and told Mr. Ferwanah that he would kill Mr.
Ferwanah’s wife and children if Mr. Ferwanah told the police about the offenses.
The Defendant and Mr. Akila carried Mr. Ferwanah to a bathroom, washed the
blood off of Mr. Ferwanah, and put him in the passenger seat of his vehicle. The
Defendant got into the driver’s seat of Mr. Ferwanah’s vehicle and asked if Mr. Ferwanah
had health insurance. When Mr. Ferwanah stated that he had health insurance, the
Defendant offered to take Mr. Ferwanah to a hospital if Mr. Ferwanah came up with an
explanation for his injuries. However, Mr. Ferwanah asked the Defendant to drive him to
his residence instead. When Mr. Ferwanah and the Defendant arrived at Mr. Ferwanah’s
residence, the Defendant helped Mr. Ferwanah inside, gave him a bath, changed his
clothes, and put him into bed. The Defendant told Mr. Ferwanah’s wife that Mr.
Ferwanah had been in an accident. After the Defendant left, Mr. Ferwanah told his wife
that the Defendant had assaulted him and was going to kill his family. Mr. Ferwanah fell
asleep or was unconscious for several hours after the Defendant left. His wife woke him
up, and he called 911. An ambulance took Mr. Ferwanah to Parkwest Hospital, and he
was later transferred to the trauma center at the University of Tennessee Medical Center.
Mr. Ferwanah sustained fractures in his left ankle, right wrist, and left wrist and bruising
and lacerations on various places on his body. He also sustained an injury to his head.
Mr. Ferwanah testified that his pain level after the offenses was ten out of ten, and his
pain did not lessen until he was given morphine at the hospital. He stated that he could
not return to work for four and a half months. Mr. Ferwanah still had pain in his right
shoulder, and he occasionally “mixed up” words due to his head injury. Mr. Ferwanah
testified that he filed a civil suit against the Defendant, Electronics Tech, Mr. Akila, and
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“John Doe” after the offenses. However, he did not know the current status of his civil
case.
On cross-examination, Mr. Ferwanah explained that he believed the Defendant
had jokingly tied him up until the Defendant and the masked man threw Mr. Ferwanah
onto the concrete floor of the garage while tied to the chair. Mr. Ferwanah agreed that,
when he was discharged from the University of Tennessee trauma center, he received a
prescription for Tylenol 3 and Percocet. Mr. Ferwanah also agreed that he requested
$15,500,000 in damages in his civil suit. He explained that he informed his attorneys of
the details of the offenses and that the attorneys decided on the amount to request in
damages. Mr. Ferwanah was aware that Mr. Akila was originally charged with a Class A
felony but pled guilty to accessory after the fact, a Class E felony, in exchange for a
sentence of two years.
Fatma Sekik testified that she had been married to the Defendant for twenty years.
She explained that she and the Defendant were obtaining a divorce. Ms. Sekik stated
that, approximately six weeks prior to the current offenses, the Defendant accused her of
having an affair. The Defendant showed her a video of two individuals having sex and
claimed that the woman in the video was her. Ms. Sekik denied that she was in the video.
The Defendant repeated his accusation for several days. The Defendant told Ms. Sekik
that he was going to have an expert enhance the video so that he could determine whether
she was in the video. Ms. Sekik identified Mr. Ferwanah as her husband’s friend and
stated that she had never been alone with or had an affair with Mr. Ferwanah.
Officer Russell Whitfield testified that he worked in the forensic unit of the
Knoxville Police Department (“KPD”). On February 2, 2012, Officer Whitfield
responded to a report of an assault at Electronics Tech. He met with the officers who
were already at the scene and took photographs of the building. Officer Whitfield
noticed that the garage area of the building was very clean, and he could smell cleaner.
Beth Goodman testified that she formerly worked as an evidence technician with
the KPD. In February 2012, Ms. Goodman assisted in investigating Mr. Ferwanah’s
kidnapping and assault. She documented, photographed, and recovered items from a
dumpster at an apartment complex in west Knoxville. Those items included a blue
blanket, a large plastic sheet, and pieces of a broken chair.
Darren James Luna testified that he formerly worked at Electronics Tech for
approximately eight years. Mr. Luna described February 1, 2012, as a normal work day
at Electronics Tech. He explained that he mainly worked in the garage area of the
business and that he left between 6:00 and 6:30 p.m. Mr. Luna stated that, on February 2,
2012, the Defendant did not come to Electronics Tech, which was “somewhat” unusual.
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Mr. Luna noticed “the strong smell of bleach” when he walked into the building. He also
observed that “the floor was really clean” like it had just been mopped. Mr. Luna saw a
bucket with bloody blankets and noticed that his tools had blood on them. He also saw “a
bat or stick or something with some blood on it.” Mr. Luna cleaned the blood off of his
tools and explained that it “was unusual, but it wasn’t unusual” to see blood in the garage
area.
On cross-examination, Mr. Luna stated that, when he left Electronics Tech on
February 1, the Defendant and Mr. Akila were at the business. Mr. Luna saw Mr.
Ferwanah at Electronics Tech “every once in a while.” He stated that the elevator that
went from the office area to the garage area was large enough to fit a chair. He explained
that the garage door was opened by a button on the wall of the garage and a remote that
typically stayed inside the garage.
Lowi Fathi Akila testified that he was charged as a co-defendant in the indictment
in the Defendant’s case. He stated that, in exchange for testifying truthfully in the
Defendant’s case, he would plead guilty and that his conviction would be diverted after
the service of two years’ probation. Mr. Akila explained that he was distantly related to
the Defendant and that he grew up with the Defendant and Mr. Ferwanah in Palestine.
Mr. Akila immigrated to the United States in 1984 and lived in Knoxville. He explained
that, in 2011, a female dancer and singer had an affair with a businessman in Egypt; this
affair was discussed in the news in the Middle East. Mr. Akila found a video of the
dancer and the businessman on a website and showed it to the Defendant. In February
2012, Mr. Akila worked at Electronics Tech with the Defendant and Wheels Auto Sales.
Mr. Akila occasionally saw Mr. Ferwanah at Electronics Tech. Approximately three or
four months prior to the offenses, the Defendant wanted to show Mr. Akila a video that
he had found on the internet that he believed showed his wife cheating on him. The
Defendant showed Mr. Akila the video and continued to discuss the video with Mr. Akila
“almost every day.” Mr. Akila stated the following about his interaction with the
Defendant about the video:
He just simply sa[id], [“]I found out she’s cheating [on] me and I
have the proof and I want to show you.[”] And I told him that I can’t
believe that and there is no way. I know your wife. And he said, well, let
me show you.
So he played the videotape. And I simply left. And I said, you must
be kidding me. By looking at this video, you can’t even see the woman’s
face. And you accusing him -- or the guy’s face and you saying that’s your
wife and Mr. Ferwanah. That is ridiculous. It does not make any sense to
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me. I don’t see any single thing that can -- tells me that it would be a
possibility.
Mr. Akila stated that the Defendant “kept insinuating he[] [had] other help, other
information to support his theory” that his wife was having an affair with Mr. Ferwanah.
The Defendant told Mr. Akila that he had hired two former FBI agents who believed that
the video depicted Mr. Ferwanah based on Mr. Ferwanah’s voice and photographs. Mr.
Akila saw the former FBI agents at Electronics Tech speaking with the Defendant. Mr.
Akila also testified that the Defendant made an audio recording of himself and his wife to
compare with the video that he found on the internet. Mr. Akila felt “very embarrassed
and very ashamed” about the Defendant’s actions. He described the Defendant as
“always extremely nervous” and “always extremely on edge.” When Mr. Akila
expressed his belief that the woman in the video was not the Defendant’s wife, the
Defendant “look[ed] at [Mr. Akila] with his eyes blaring [and asked], [‘][H]ow do you
know? You have never seen her body, or have you?[’]” Mr. Akila told the Defendant
that Mr. Ferwanah and the Defendant’s wife were not the type of people who would have
an affair. The Defendant later showed Mr. Akila a photograph of Mr. Ferwanah’s chest
that the Defendant compared to the internet video. The Defendant also asked Mr. Akila
to regularly join him and Mr. Ferwanah for dinner.
On the day of the offenses, Mr. Akila worked at Wheels Auto Sales. The
Defendant told Mr. Akila that he needed to come to Electronics Tech after he finished
working at Wheels Auto Sales because the Defendant wanted to speak with Mr.
Ferwanah about the video. The Defendant believed that Mr. Ferwanah would confess to
the affair after the Defendant presented evidence of the affair to him. Mr. Akila informed
the Defendant that he did not want to be involved, but the Defendant told Mr. Akila that
he just wanted to talk with Mr. Ferwanah and that he wanted Mr. Akila to be a witness.
Mr. Akila arrived at Electronics Tech around 5:50 p.m., collected his paycheck from the
Defendant, drove to his bank, and deposited the check. When Mr. Akila returned to
Electronics Tech, the other employees had left. Mr. Akila explained that the Defendant
and Michael Corleon Desouzaneti3 were at Electronics Tech, although Mr. Akila was
initially unaware of Mr. Desouzaneti’s presence in the business. The Defendant informed
Mr. Akila that, when Mr. Ferwanah arrived, he wanted to speak with Mr. Ferwanah about
the allegations and then the three men would go to dinner. Mr. Ferwanah pulled into the
parking lot and called Mr. Akila, who told Mr. Ferwanah to come inside the building.
When Mr. Ferwanah entered, the Defendant said he wanted to show Mr. Akila and
Mr. Ferwanah something interesting. Mr. Akila and Mr. Ferwanah sat in chairs, and the
Defendant put duct tape around Mr. Akila. Mr. Akila explained that the Defendant did
3
Mr. Akila identified Mr. Desouzaneti as the third person involved in the offenses.
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not mention restraining him with duct tape prior to Mr. Ferwanah’s arrival. After taping
Mr. Akila, the Defendant also restrained Mr. Ferwanah with duct tape. The Defendant
cut Mr. Akila’s tape and “screamed” for Mr. Desouzaneti to “come over here.” Mr.
Desouzaneti came out of the office, and the Defendant and Mr. Desouzaneti carried Mr.
Ferwanah into the garage. Mr. Ferwanah screamed for Mr. Akila, who was scared. Mr.
Akila saw the Defendant and Mr. Desouzaneti throw Mr. Ferwanah onto the garage floor.
Mr. Desouzaneti tied Mr. Ferwanah’s hands and legs with zip ties, and the Defendant and
Mr. Desouzaneti began hitting Mr. Ferwanah. Mr. Akila stated that the Defendant was
hitting Mr. Ferwanah with a “baseball stick,” and Mr. Desouzaneti was hitting Mr.
Ferwanah with “a metal device for hitting people.” Mr. Desouzaneti also had a gun in his
belt, and he was kicking Mr. Ferwanah. The Defendant and Mr. Desouzaneti assaulted
Mr. Ferwanah “[o]ff and on for . . . an hour and a half, two hours.” The Defendant told
Mr. Ferwanah that his wife had admitted to having an affair with Mr. Ferwanah and that
the Defendant had already taken care of her. Mr. Akila told Mr. Ferwanah that he should
confess if he knew anything, and Mr. Akila would get the Defendant to stop the assault.
The Defendant also asked Mr. Ferwanah where he was hiding the original video
recordings. The Defendant took Mr. Ferwanah’s cell phone so that he could inspect Mr.
Ferwanah’s emails. The Defendant told Mr. Akila to go to the office and retrieve the
Defendant’s gun. When Mr. Akila brought the gun to the garage, the Defendant pointed
it at Mr. Ferwanah’s head. The Defendant told Mr. Ferwanah that, if Mr. Ferwanah did
not tell the Defendant where the video recording was, the Defendant would shoot Mr.
Ferwanah in the head and throw Mr. Ferwanah’s body in the lake.
Mr. Akila stated that Mr. Ferwanah was bleeding from his head, legs, eyes, and
mouth. Mr. Akila helped the Defendant clean up the garage area for business the next
day. The Defendant told Mr. Akila to take the plastic tarp and towels that were on the
garage floor and the broken chair that Mr. Ferwanah had sat in and put the items in the
dumpster of a nearby apartment complex. Mr. Akila saw the Defendant pour bleach on
the garage floor to clean it. Mr. Akila told the Defendant that Mr. Ferwanah needed to go
to a hospital. As Mr. Akila helped Mr. Ferwanah get into a vehicle, he heard Mr.
Ferwanah tell the Defendant that he did not want to go to the hospital because the
hospital employees would ask Mr. Ferwanah how he became injured. The Defendant
told Mr. Ferwanah that he was “man enough” to admit that he caused Mr. Ferwanah’s
injuries. Mr. Akila left Electronics Tech shortly after the Defendant left to take Mr.
Ferwanah to the hospital.
On cross-examination, Mr. Akila stated that the Defendant asked him to
photograph the assault on Mr. Ferwanah, but Mr. Akila did not turn the camera on. Mr.
Akila agreed that he was currently on bond for his participation in the current offenses
and that he was charged with especially aggravated kidnapping. Mr. Akila explained that
he previously borrowed money from the Defendant, and he repaid the Defendant by
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working for him. Mr. Akila stated that, before the Defendant cleaned the garage, the
Defendant carried Mr. Ferwanah to a bathroom in the garage and washed the blood off of
him. When the Defendant left with Mr. Ferwanah, Mr. Akila believed that they were
going to a hospital. However, the Defendant later called Mr. Akila and asked Mr. Akila
to pick him up from Mr. Ferwanah’s residence.
The Defendant’s Proof
Joy Gensheimer testified that she had known the Defendant for approximately
seven and one-half years. She held a good opinion of the Defendant’s character. Dr.
Adel Hussein testified that he had known the Defendant for more than twenty years. In
his opinion, the Defendant had a good reputation. Tiki Dixon testified that he had known
the Defendant for approximately sixteen years and that the Defendant had a reputation for
having good character. Ramadan Damiri testified that he had known the Defendant for
over twenty years and that the Defendant had a good reputation in the Islamic community
of Knoxville.
The jury convicted the Defendant of aggravated kidnapping in count one,
especially aggravated kidnapping in count two, aggravated assault in count three, and
aggravated assault in count four. The jury acquitted the Defendant of aggravated
burglary in count five.
Sentencing Hearing
At the Defendant’s sentencing hearing, the trial court noted that it had read the
presentence report, which the trial court admitted as an exhibit at the State’s request. Mr.
Ferwanah gave a victim impact statement. He stated that he sustained a broken ankle,
two broken wrists, bleeding in his head, and bruising from the Defendant’s offenses. Mr.
Ferwanah took unpaid leave from his job for five months to recover from the injuries he
received during the Defendant’s assault.
Ms. Gensheimer testified by reading a letter that she had previously written. She
stated that the Defendant was “a very good citizen” and “a very hard-working man[.]”
She described the Defendant as “an outstanding father.” Ms. Gensheimer testified that
the Defendant helped others financially when they were in need. Dr. Hussein testified
that he had known the Defendant for more than twenty years. Dr. Hussein described the
Defendant as a very helpful person who had good character. He stated that the Defendant
was “very attached to his family.” Mr. Damiri testified that he had known the Defendant
for twenty years as a member of the Islamic community in Knoxville. He stated that the
Defendant was “a very good person.” Sharin Abdelnabi, the Defendant’s oldest
daughter, testified that the Defendant was her best friend and that life without him was
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impossible. Nesma Abdelnabi, the Defendant’s younger daughter, testified that she and
her siblings looked up the Defendant. The Defendant made an allocution and stated that
he was “extremely sorry[.]”
The trial court found that the Defendant was a Range I standard offender. The
trial court found that the Defendant was not eligible for a probated sentence on counts
one and two. The trial court found that the Defendant was a leader in the commission of
the offense that involved one or more actors. The trial court stated that “[t]he facts
clearly show that [the Defendant] organized this attack on Mr. Ferwanah and that
everyone was following his directions. He not only set it up, but he was calling the shots
throughout the entire thing, including the end of it[.]” The trial court gave this factor “a
significant deal of weight[.]” The trial court also found that the Defendant treated or
allowed Mr. Ferwanah to be treated with exceptional cruelty during the commission of
the offenses. The trial court noted that Mr. Ferwanah felt terrified and helpless during the
offenses and believed that he was going to die. The trial court stated that Mr. Ferwanah’s
kidnapping was “one of the worst” that the trial court had seen. However, the trial court
did not give this enhancement factor much weight because treating the victim with
exceptional cruelty was “subsumed in the elements of especially aggravated kidnapping
and aggravated assault.”4 The trial court found that the Defendant possessed or employed
a firearm or other deadly weapon during the commission of the offenses. The trial court
applied this enhancement factor to counts two and three only and gave the factor “some
weight.”
Regarding mitigating factors, the trial court noted that the Defendant had no prior
convictions. The trial court gave this factor “a good deal of weight[.]” The trial court
found that the factor in Tennessee Code Annotated section 39-13-305(b)(2) and -
304(b)(2), that “[i]f the offender voluntarily releases the victim alive or voluntarily
provides information leading to the victim’s safe release, such actions shall be considered
by the court as a mitigating factor at the time of sentencing[,]” applied because the
Defendant took Mr. Ferwanah home and cleaned him up. However, the trial court found
that the statutory mitigating factor was “tempered” by the fact that the Defendant “was
trying to cover his tracks a little bit[.]” The trial court also found that the Defendant was
a good father and had “employed other individuals” as “a long-time businessman[.]” The
trial court noted that the Defendant had been generous and helpful towards others. The
trial court believed that the Defendant’s apology for his offenses was sincere.
The trial court ordered the Defendant to serve a sentence of twelve years in TDOC
for count one, aggravated kidnapping. Regarding count two, especially aggravated
4
As explained later in this opinion, the trial court was incorrect in its statement that “exceptional
cruelty” was an element of especially aggravated kidnapping or aggravated assault.
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kidnapping, the trial court ordered the Defendant to serve a sentence of seventeen years
in TDOC. The trial court ordered the Defendant to serve sentences of six years for
counts three and four. The trial court ordered all the Defendant’s sentences to be
concurrently aligned. The trial court merged count one into count two and count four
into count three. Thus, the Defendant received a total effective sentence of seventeen
years at 100% release eligibility.
The Defendant filed a timely motion for new trial, which the trial court denied.
The Defendant now timely appeals the trial court’s judgments.
II. Analysis
Motion to dismiss the indictment
The Defendant argues that his second trial violates the prohibition against double
jeopardy. He contends that the trial court erred by “allow[ing] the State, with all its
resources and power, to make repeated attempts to convict [the Defendant] for the alleged
offenses, subjecting him to embarrassment, expense and ordeal[,] and compelling him to
live in a continuing state of anxiety and insecurity before his second trial.” The State
asserts that the trial court properly denied the Defendant’s motion to dismiss the
indictment because the State did not intentionally elicit Mr. Akila’s statement in the first
trial, and the Defendant “has not shown that the State was trying to provoke [the
Defendant] into seeking a mistrial, which is necessary for double jeopardy to bar retrial
here.”
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, states,
“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat
no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn.
Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against
a second prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).
In State v. Tucker, 728 S.W.2d 27, 31 (Tenn. 1986), our supreme court adopted the
standard set out in Oregon v. Kennedy, 456 U.S. 667 (1982), for determining when
prosecutorial misconduct will bar a retrial. In Tucker, our supreme court held that “[o]nly
when it is shown that the prosecutor is ‘goading’ the defense into moving for a mistrial
will double jeopardy bar a retrial.” 728 S.W.2d at 31. The Tennessee Supreme Court
stated that, “when the case is collapsing around the prosecutor because the witnesses are
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weaker than expected, adverse rulings have kept out important evidence, or key witnesses
cannot be found or did not appear, the trial judge can infer the prosecutor’s intent and
reach the conclusion that a mistrial was actually desired.” Id.
In State v. Clint Elmore, No. 03C01-9403-CR-00119, 1995 WL 84447, at *1
(Tenn. Crim. App. Feb. 28, 1995), perm. app. denied (Tenn. July 10, 1995), the
defendant was charged with aggravated rape of a ten-year-old victim. The trial court
granted the defendant’s motion in limine to limit the victim’s testimony to exclude
references to any other victims. Id. When the victim testified at trial, he mentioned his
sister. Id. The trial court granted the defendant’s motion for mistrial but “specifically
found that there was no prosecutorial misconduct.” Id. On appeal, the defendant argued
that a retrial would violate double jeopardy because the State’s actions were intended to
goad the defendant into seeking a mistrial. Id. This court concluded that, prior to the
victim’s testimony, the State explained to the victim the limitations on his testimony. Id.
at *2. This court stated that “[i]t [wa]s clear that the questions which prompted the
controversial responses were not designed to insinuate that the [defendant] had molested
other children, but rather were asked in order to show the sequence of events surrounding
the abuse and its effect on the victim.” Id. (emphasis in original). Thus, this court
concluded that the State’s question was not intended to provoke the defendant to request
a mistrial and affirmed the trial court’s denial of the defendant’s motion to dismiss. Id. at
*2-3.
“The defendant bears the burden of showing that the evidence preponderates
against the trial court’s [factual] findings” regarding the prosecutor’s intent to “goad” the
defendant into moving for a mistrial. State v. Huskey, 66 S.W.3d 905, 917 (Tenn. Crim.
App. 2001).
At the Defendant’s first trial, Mr. Akila stated that the Defendant “also doubted his
wife at a previous occasion with another friend of his, and [the Defendant] pulled a gun
on [his friend].” The Defendant objected, and the trial court held a jury-out hearing on
the Defendant’s motion for a mistrial. The State argued that Mr. Akila’s statement was
non-responsive to the State’s question: “Mr. Akila, were you aware of the [D]efendant
taking any action because of his suspicions?” The prosecutor additionally noted that it
had spoken with Mr. Akila about the testimony prior to trial and did not anticipate
bringing out the testimony during direct examination. The State alternatively argued that
it was not required to give the Defendant notice of its intent to introduce evidence under
Tennessee Rule of Evidence 404(b) and that the statement was relevant to the
Defendant’s motive and intent to commit the current offenses. The trial court noted that
Mr. Akila’s statement discussed an event that was “almost identical” to the current
offenses. Thus, the trial court held that a reasonable juror could not disregard the
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testimony and declared a mistrial. The trial court stated that it did not believe that the
prosecutor intentionally solicited the statement from Mr. Akila.
The Defendant filed a motion to dismiss the indictment, arguing that a second trial
on the charges would violate double jeopardy and his right to due process. The
Defendant asserted that, at his first trial, the State elicited improper testimony from Mr.
Akila, which resulted in the mistrial. In a written order, the trial court denied the
Defendant’s motion to dismiss the indictment. The trial court found that the State did not
elicit Mr. Akila’s statement in the first trial and that the State was not attempting to goad
the Defendant into requesting a mistrial. Thus, the trial court found that “manifest
necessity did exist to declare a mistrial and that retrial does not violate due process or
double jeopardy.” The Defendant then filed a motion to stay the trial proceedings and
filed an application for permission to appeal to the Tennessee Court of Criminal Appeals
under Tennessee Rule of Appellate Procedure 9. The trial court denied the Defendant’s
Rule 9 application for permission to appeal and his motion to stay the proceedings. The
Defendant then filed an extraordinary appeal under Tennessee Rule of Appellate
Procedure 10 with the Tennessee Court of Criminal Appeals. This court stayed the trial
proceedings, see Tenn. R. App. P. 10(a), but later denied the Defendant’s Rule 10
extraordinary appeal. This court concluded that, the trial court had not departed from the
accepted and usual course of judicial proceedings in its denial of the Defendant’s motion
to dismiss the indictment. The Defendant then proceeded to his second trial.
Prior to Mr. Akila’s testimony at the Defendant’s second trial, the Defendant
renewed his motion to dismiss the indictment on double jeopardy grounds and asserted
that Mr. Akila intentionally mentioned the prior incident in his first trial. The trial court
stated that “[t]he State did not ask anything to try to elicit that response from the
witness.” The trial court again denied the Defendant’s motion to dismiss the indictment.
The trial court also instructed Mr. Akila, outside of the jury’s presence, to refrain from
mentioning any prior incidents with the Defendant.
Similar to this court’s conclusion in Clint Elmore, we conclude that the State did
not intend to goad the Defendant into requesting a mistrial by asking Mr. Akila the
following question: “Mr. Akila, were you aware of the [D]efendant taking any action
because of his suspicions?” At the Defendant’s first trial, the State noted that it had
spoken with Mr. Akila prior to his testimony and did not intend on eliciting the
objectionable testimony. The Defendant has not presented any proof that the State
intentionally asked Mr. Akila whether he knew if the Defendant had acted on his
suspicions that his wife was having an affair for the purpose of goading the Defendant
into requesting a mistrial. The trial court did not err in denying the Defendant’s motion
to dismiss the indictment, and the State was not barred from retrying the Defendant by
double jeopardy.
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Motion for mistrial
Next, the Defendant asserts that the trial court erred in denying his motion for
mistrial because Mr. Ferwanah testified that the Defendant should take the stand. He
argues that a mistrial was necessary because the jury heard Mr. Ferwanah’s statement,
and “no reasonable trier of fact could reach an impartial verdict after such a dramatic
statement of potential guilt.” The State contends that the trial court properly denied the
motion for mistrial because the State did not elicit the comment, and “the trial court
repeatedly instructed the jury that [the Defendant] was not required to testify, including
right after the outburst, ensuring that the jury understood [the Defendant]’s right to
remain silent.”
The decision of whether to grant a mistrial is within the sound discretion of the
trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996).
Normally, a mistrial should be declared only in the event that a manifest necessity
requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991).
“In other words, a mistrial is an appropriate remedy when a trial cannot continue, or a
miscarriage of justice would result if it did.” State v. Land, 34 S.W.3d 516, 527 (Tenn.
Crim. App. 2000). The burden to show the necessity for a mistrial falls upon the party
seeking the mistrial. Id. This court will not disturb the trial court’s decision unless there
is an abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). In
evaluating whether the trial court abused its discretion, we may consider: “(1) whether
the State elicited the testimony, (2) whether the trial court gave a curative instruction, and
(3) the relative strength or weakness of the State’s proof.” State v. Welcome, 280 S.W.3d
215, 222 (Tenn. Crim. App. 2007).
During Mr. Ferwanah’s cross-examination, the following exchange occurred:
[TRIAL COUNSEL:] And what you’re concerned with is the
beating, not anything else; is that true, sir?
[MR. FERWANAH:] For everything he did to me, for the look
when I look in my kids’ eyes the next day, because when he took me home,
my kids walk up there -- they were in bed, they walk up, they looked at me,
they saw me how I looked, what he did to me. The next day and the next
day when they all come in the middle of the night, my children, I look at
them and I cry.
[TRIAL COUNSEL:] Well -
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[MR. FERWANAH:] We had to take them to therapy, the whole
family, so they can (inaudible) what he did to them.
[TRIAL COUNSEL:] And my question, sir, was, that you were
concerned with the beating; is that correct?
[MR. FERWANAH:] What do you mean, I was concerned --
[THE STATE]: Asked and answered.
THE [TRIAL] COURT: I’m not -- can you rephrase? I think you’re
asking is there something other than the beating.
[TRIAL COUNSEL]: Okay.
[TRIAL COUNSEL:] So that when Mr. Akila and, what you say,
[the Defendant] did about carrying you down the hallway, not -- you’re not
concerned about that, about what Mr. Akila and what you say [the
Defendant] did about throwing you into the garage? You’re not concerned
about that; is that correct?
[MR. FERWANAH:] I’m concerned about all that, all that
happened, all what he did.
[TRIAL COUNSEL:] But Mr.
[MR. FERWANAH:] He did all that. How can that man sit here
and say he didn’t do [sic]? Take the stand. Be a man and acknowledge
what you did.
THE [TRIAL] COURT: You need to wait.
[TRIAL COUNSEL:] Your Honor, may we approach?
[MR. FERWANAH:] I’m sorry. I’m sorry, Your Honor.
THE [TRIAL] COURT: That’s all right. We’re just going to take a
recess so we can calm down. Please don’t discuss this case among
yourselves. You may leave your notebooks in your chairs. I’ll see you in a
few minutes.
- 16 -
....
THE [TRIAL] COURT: All right, folks. You can have a seat. [trial
counsel].
[TRIAL COUNSEL:] Your Honor, we are, again, in a position that
we would move for a mistrial because of the insistence by Mr. Ferwanah
that, quote, [the Defendant] be a man and take the stand and admit what he
did. Your Honor, that is an improper comment on my client’s right to
remain silent, be it by the State or a State’s witness, it is still an improper
comment. Whatever the emotional concerns were or not, this is a totally
improper comment. We cannot get past it by the jury being told that, well,
[the Defendant] has a right to remain silent, when you got somebody in the
emotional state that Mr. Ferwanah has and being non-responsive to the
question, talking about [the Defendant] taking the stand and being a man
and admitting what he did.
THE [TRIAL] COURT: All right. I’m going to deny your Motion
for Mistrial. We did spend a lot of time on this during voir dire and even
excused one potential juror because he said that . . . would be stuck in his
mind, that he’d be wondering what the person would say.
And so, Mr. Ferwanah, you can’t comment on him not testifying. I
understand. You’re very emotional. It’s a very stressful situation.
I’m going to instruct the jury to disregard that. I instructed them
already. They’ve heard this instruction before. I’ve read it to them during
jury selection and I’m going to read it to them again at the end, but I’ll tell
them to disregard Mr. Ferwanah’s statement.
I certainly think that the jury understands the law. The fact that Mr.
Ferwanah said that is really no different than us commenting on it during
voir dire, that, certainly -- Mr. Ferwanah’s opinion is, is that he should get
up and testify. The jury knows he doesn’t have to do that. And they have
been instructed already and will be instructed again that they are not to
place any significance on the fact that if [the Defendant] chooses not to
testify or to put on any evidence, and I’ll tell them to disregard that
statement. I think everybody understands that was a heat-of-the-moment
statement made out of frustration by Mr. Ferwanah, so . . .
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I’m going to deny your Motion for Mistrial. I don’t think there’s
manifest necessity for it. I think the jury can follow my instructions on
that.
While the jury was still out of the courtroom, the Defendant requested that the trial
court also give “the no prejudice or sympathy instruction.” The trial court stated the
following:
THE [TRIAL] COURT: I don’t think I need to -- to add that in. I
mean, you were yelling earlier. . . . I don’t know if you know it, but you
get really aggressive and your voice gets raised and I didn’t ask you to calm
down. I think . . . the jury understands it’s a stressful situation. You’re
trying to represent your client as zealously as possibly. And I think Mr.
Ferwanah finally just got pushed over the edge and -- I don’t think your
questions were inappropriate. You weren’t yelling when you asked that
one. It’s just earlier, I think . . . your tone of voice kind of built up a very
adversarial situation, so . . .
I’m just going to ask that everybody calm down. We’re going to
take a recess. We’ll collect our . . . thoughts. I don’t think I need to give
any additional instructions other than disregard the statement about
testifying.
After the jury returned to the courtroom, the trial court instructed the jury to
“disregard and strike from the record of your proceedings the statement of Mr. Ferwanah
challenging the defendant to testify.” The trial court also instructed the jury that it could
not consider the fact that the Defendant testified or did not testify at trial.
Here, we conclude that the trial court did not err in denying the Defendant’s
motion for mistrial. The State did not elicit Mr. Ferwanah’s statement. During the
Defendant’s cross-examination of Mr. Ferwanah, trial counsel conducted a line of
questioning regarding what concerned Mr. Ferwanah most about the offenses. Mr.
Ferwanah apparently became emotional, and his outburst challenging the Defendant to
take the stand was non-responsive to trial counsel’s question. Additionally, the trial court
instructed the jury to disregard Mr. Ferwanah’s statement, and we must presume that the
jury followed the trial court’s instruction. State v. Reid, 91 S.W.3d 247, 279 (Tenn.
2002) (citing State v. Stout, 46 S.W.3d 689, 715 (Tenn. 2001); State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998)). Lastly, we conclude that the State’s proof in this case
was strong. Both the Defendant’s accomplice, Mr. Akila, and the victim, Mr. Ferwanah,
testified that the Defendant tricked Mr. Ferwanah into being tied up, and with the
assistance of Mr. Desouzaneti, took Mr. Ferwanah into the garage and beat him severely.
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Thus, the trial court properly determined that there was no manifest necessity for a
mistrial.
Further, the Defendant argues that “Mr. Ferwanah’s challenge[] and the
subsequent denial of the motion for mistrial[] violated his constitutional right to a fair
trial.” The Defendant cites to the Fourteenth Amendment of the United States
Constitution, and Article I, section eight of the Tennessee Constitution, and argues that
the trial court’s instruction was insufficient to resolve the error committed when Mr.
Ferwanah told the Defendant to “[b]e a man” and “[t]ake the stand[.]” The State notes
that the trial court instructed the jury several times to disregard Mr. Ferwanah’s
statements, and “the trial court reasonably concluded that multiple curative instructions
were sufficient to mitigate [Mr.] Ferwanah’s outburst.”
The United States Constitution and the Tennessee state constitution guarantee
criminal defendants the right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. I,
§ 6 (providing “that the right of trial by jury shall remain inviolate”). We have already
concluded that Mr. Ferwanah’s outburst did not create the manifest necessity for a
mistrial. We agree with the State that the trial court’s prompt action of sending the jurors
out, holding a jury-out sidebar, and instructing the jury upon its return ensured that the
Defendant’s right to a fair trial was not violated. The Defendant is not entitled to relief
on this ground.
Improper prosecutorial comment on the right not to testify
The Defendant further argues that Mr. Ferwanah’s statement violated his right to
remain silent and constituted prosecutorial misconduct because Mr. Ferwanah was a
witness of the State. The State asserts that Mr. Ferwanah’s outburst was not elicited by
the State and notes that the trial court instructed the jury several times regarding the
Defendant’s right to testify or not testify.
Both the United States Constitution and the Tennessee Constitution “guarantee
criminal defendants the right to remain silent and the right not to testify at trial.” State v.
Jackson, 444 S.W.3d 554, 585 (Tenn. 2014). The Tennessee Supreme Court has
previously cautioned that “[t]he subject of a defendant’s right not to testify should be
considered off limits to any conscientious prosecutor.” Id. at 586 (quoting State v. Hale,
672 S.W.2d 201, 203 (Tenn. 1984)) (internal quotation marks omitted). In addition to
direct comments on a defendant’s decision not to testify, “indirect references on the
failure to testify also can violate the Fifth Amendment privilege.” Id. at 587 (quoting
Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000)) (internal quotation marks omitted).
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In Jackson, our supreme court overturned a second-degree murder conviction
where the prosecutor, during closing rebuttal argument, “walked across the court room,
stood in front of [the d]efendant, gestured toward her, and demanded in a loud voice,
‘Just tell us where you were! That’s all we are asking, Noura!’” Id. at 585, 602. In its
ruling, the court adopted a two-part test for determining whether a prosecutor’s remark
amounts to an improper comment on a defendant’s constitutional right to remain silent
and not testify. Id. at 587-88. The two-part test analyzes: “(1) whether the prosecutor’s
manifest intent was to comment on the defendant’s right not to testify; or (2) whether the
prosecutor’s remark was of such a character that the jury would necessarily have taken it
to be a comment on the defendant’s failure to testify.” Id. at 588. This court reviews a
defendant’s claim of impermissible prosecutorial comment on the right not to testify de
novo. Id.
In the case at hand, we conclude that the State did not improperly comment on the
Defendant’s right to testify or remain silent. Most notably, Mr. Ferwanah challenged the
Defendant to testify during the defense’s cross-examination. While Mr. Ferwanah
testified for the State, it is clear that the State had no role in eliciting Mr. Ferwanah’s
statement. Thus, we conclude that the State had no manifest intent to comment on the
Defendant’s right to testify. The Defendant is not entitled to relief on this ground.
Cross-examination of Mr. Akila
Prior to Mr. Akila’s testimony at the Defendant’s second trial, the trial court
addressed the issue of Mr. Akila’s testimony regarding his plea agreement during a jury-
out hearing. The trial court stated the following:
When a co-defendant is charged with the exact same thing, the
statute that prohibits you [from] talking about sentencing applies to co-
defendants. It’s a tricky road you got . . . to follow. And I think you . . .
managed it well with Mr. Ferwanah, about his understanding. But when
you come time to question Mr. Akila, you can’t talk to him about any
specific length of time that he’s . . . looking at. You can talk about, you
know, you’re eligible for probation, you’re eligible for diversion. You can
ask him that, but you can’t talk about specific lengths of prison sentences.
During Mr. Akila’s cross-examination, the following exchange occurred:
[TRIAL COUNSEL]: Your Honor, may we approach?
THE [TRIAL] COURT: Yes, sir.
- 20 -
(Bench conference:)
[TRIAL COUNSEL]: I don’t want to violate Your Honor’s rule. I
need to know the questions that I can ask him about the penalty that he was
facing.
THE [TRIAL] COURT: The substance of it is, is that your
understanding is that you’re getting a significantly reduced sentence than
what you were facing, your original charge. Does that make sense?
[TRIAL COUNSEL]: And that’s the limitation that I can --
THE [TRIAL] COURT: I think you’ve already asked. I mean,
that’s the substance of what you can get to.
[TRIAL COUNSEL]: Okay.
THE [TRIAL] COURT: Nothing about time percentages.
(Open court:)
[TRIAL COUNSEL:] Mr. Akila, you understand that by your
coming to court today and testifying in front of this jury, that you are to
receive a significantly reduced punishment for what you were charged
with?
[MR. AKILA:] I do know I was offered two years’ probation and
judicial diversion if the Judge accepts that, in return.
[TRIAL COUNSEL:] My question is, you understand that that is a
significant reduction from the offenses that you are currently charged with?
[MR. AKILA:] I don’t know what’s the scale of the significant is.
[TRIAL COUNSEL]: Your Honor, I understand I can’t ask another
question; that correct?
THE [TRIAL] COURT: Will you approach?
(Bench conference:)
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THE [TRIAL] COURT: Follow-up question is, you do understand
that you were facing a larger sentence than what you’re getting now? If he
doesn’t, then we send the jury out and we’ll talk about it. So ask him that
and see what he says.
[TRIAL COUNSEL]: I’ll ask him that way.
(Open court:)
[TRIAL COUNSEL:] You understand that your agreement allows
you to receive a much reduced sentence from the harsher punishment that
you were facing?
[MR. AKILA:] Correct.
Harmless Error Review
The Defendant asserts that the trial court erred in limiting his cross-examination of
Mr. Akila regarding his plea agreement with the State because “Tennessee courts have
not interpreted Tenn[essee] Code Ann[otated] [section] 40-35-201(b) as an absolute bar
to the cross-examination of witnesses, or other presentation of proof and argument, that
may inadvertently comment upon sentences.” The State contends that the trial court’s
limitation was within its discretion because further discussion of Mr. Akila’s plea
agreement would have revealed the Defendant’s sentence exposure to the jury, which
would have violated section 40-35-201(b). The State also argues that “when a defendant
offers testimony that a co-defendant is receiving a favorable sentence in return for
testifying, a co-defendant’s possible sentence without a plea is only marginally relevant
to his bias.”
“The propriety, scope, manner and control of the cross-examination of witnesses,
however, rests within the sound discretion of the trial court.” State v. Dishman, 915
S.W.2d 458, 463 (Tenn. Crim. App. 1995) (citing Coffee v. State, 216 S.W.2d 702, 703
(Tenn. 1948); Davis v. State, 212 S.W.2d 374, 375 (Tenn. 1948)). Absent a clear abuse
of discretion that results in manifest prejudice to the defendant, this court will not
interfere with the trial court’s exercise of its discretion on matters pertaining to the
examination of witnesses. State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App.
1984) (citing Monts v. State, 379 S.W.2d 34 (Tenn. 1964)). The trial court has authority
to “exercise appropriate control over the presentation of evidence and conduct of the trial
when necessary to avoid abuse by counsel.” Tenn. R. Evid. 611(a).
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In State v. Bolden, the Tennessee Supreme Court held that the following
safeguards should “be followed before admitting testimony procured through plea
bargain agreements[:]”
(1) full disclosure of the terms of the agreements struck with the witnesses;
(2) the opportunity for full cross-examination of those witnesses concerning
the agreements and the effect of those agreements on the testimony of the
witnesses; and (3) instructions cautioning the jury to carefully evaluate the
weight and credibility of the testimony of such witnesses who have been
induced by agreements with the State to testify against the defendant.
979 S.W.2d 587, 590 (Tenn. 1998) (internal citations omitted). In State v. Paul Spears,
this court stated that “[t]he essence of Bolden is that the defense must be given wide
latitude in cross-examination of a plea-bargaining accomplice regarding the terms of the
plea agreement, actions or promises of the prosecution, and any other facts bearing on
the truthfulness or credibility of the accomplice.” No. E1999-00383-CCA-R3-CD, 2000
WL 760758, at *4 (Tenn. Crim. App. June 13, 2000) (emphasis in original), perm. app.
denied (Tenn. Dec. 27, 2000).
Tennessee Code Annotated section 40-35-201(b) states that “[i]n all contested
criminal cases, . . . the judge shall not instruct the jury, nor shall the attorneys be
permitted to comment at any time to the jury, on possible penalties for the offense
charged nor all lesser included offenses.” Tenn. Code Ann. § 40-35-201(b).
In State v. Jereco Tynes, No. W2010-02511-CCA-R3-CD, 2013 WL 1043202, at
*13 (Tenn. Crim. App. Mar. 13, 2013), perm. app. denied (Tenn. June 11, 2013), the
defendant argued on appeal that the trial court committed plain error and violated his
right to confrontation by “not permitting him to cross-examine [the co-defendants] to
establish that, prior to their guilty pleas to second degree murder, they each faced the
possibility of life in prison on the original charge of first degree felony murder.” This
court conducted a plain error review of the issue and held that, “under the facts and
circumstances of this case, the trial court did not abuse its discretion in prohibiting the
defense from cross[-]examining [the co-defendants] about their total sentence exposure
prior to pleading guilty.” Id. at *14. This court noted that because the co-defendants
were charged with first degree felony murder, the defendant’s “eliciting the penalties they
faced on that charge simultaneously would have informed the jury about the penalties the
[d]efendant also faced.” Id. This court also concluded that “the trial court allowed
sufficient cross-examination to inform the jury that [the co-defendants] pled guilty to a
lesser offense than first degree murder and, accordingly, received a lower sentence”
which “allowed the jury to discount [the co-defendant]’s testimony as it deemed
appropriate.” Id. at *15. Further, this court concluded that a trial court does not abuse its
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discretion by “preventing a defendant from examining a witness about the exact range of
potential sentences [the witness] faced because such information is not necessary to
uncover any bias and would add only marginally to the jury’s understanding of [the
witness’] credibility.” Id. (quoting State v. Alejandro Chevo Guana, No. W2008-01304-
CCA-R3-CD, 2010 WL 2593631, at *8 (Tenn. Crim. App. June 29, 2010), perm. app.
denied (Tenn. Nov. 18, 2010)) (internal quotation marks omitted) (alterations in original).
In State v. Lamar Parrish Carter, No. M2012-01734-CCA-R9-CD, 2013 WL
4680401, at *2 (Tenn. Crim. App. Aug. 29, 2013), perm. app. granted (Tenn. Jan. 15,
2014), app. dismissed (Tenn. Jan. 27, 2017), the trial court declared a mistrial after trial
counsel asked the co-defendant about his sentencing exposure for the offenses. On
appeal, the defendant argued that there was no manifest necessity for a mistrial and that
the trial court erred in limiting his cross-examination of a witness. Id. at *3. This court
held that the trial court acted within its discretion to declare a mistrial when trial counsel
“exposed the jury to statutorily prohibited information.” Id.
We conclude that the trial court did not abuse its discretion by limiting the
Defendant’s cross-examination of Mr. Akila regarding Mr. Akila’s sentencing exposure.
Here, the Defendant and Mr. Akila were charged for the same offenses against Mr.
Ferwanah. Mr. Akila negotiated a plea agreement with the State to testify truthfully in
the Defendant’s trial in exchange for a plea to the lesser-included offense of accessory
after the fact and a sentence of two years’ probation. On cross-examination, Mr. Akila
agreed that his plea-bargained sentence was less than his original sentencing exposure.
The Defendant made the jury aware of Mr. Akila’s potential bias through his cross-
examination of Mr. Akila regarding his plea negotiations with the State. Any further
delving into Mr. Akila’s original sentencing exposure would have likely violated
Tennessee Code Annotated section 40-35-201(b) by exposing the jury to the possible
sentences for the Defendant’s charged offenses. Further, more information about Mr.
Akila’s sentencing exposure would have had minimal probative value because the jury
was already aware that Mr. Akila received a much reduced sentence in exchange for
truthful testimony. Thus, we conclude the trial court properly limited the Defendant’s
cross-examination of Mr. Akila regarding his sentencing exposure. See Jereco Tynes,
2013 WL 1043202 at *14-15; but see State v. Kenneth Kissamore, No. M2010-01565-
CCA-R3-CD, 2011 WL 2474061, at *3-4 (Tenn. Crim. App. June 21, 2011) (“[S]ection
40-35-201(b) does not by its terms prohibit a comment on the actual sentence received by
one other than the criminal defendant himself.”), perm. app. denied (Tenn. Oct. 19,
2011). The Defendant is not entitled to relief on this ground.
- 24 -
Confrontation Clause
The Defendant also argues that “[t]he limitations on [the Defendant]’s cross-
examination deprived him of his constitutional right to effectively confront the witnesses
against him, specifically a co-defendant who had gained more than fifteen (15) years of
freedom and a clean criminal record by testifying for the State against [the Defendant].”
In a criminal trial, the defendant has a right “to be confronted with the witnesses
against him.” U.S. Const. amend. VI. Similarly, the Tennessee Constitution provides
“[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the witnesses
face to face.” Tenn. Const. art. I, § 9. Our supreme court has described the Tennessee
Constitution as imposing “a higher right than that found in the federal constitution.”
State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992). However, “when deciding claims
based on the right to confrontation provided in article I, section 9, we have expressly
adopted and applied the same analysis used to evaluate claims based on the Confrontation
Clause of the Sixth Amendment.” State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014).
A defendant’s right to cross-examine witnesses does not preclude a trial court
from imposing limits upon the cross-examination of witnesses, taking into account such
factors as “harassment, prejudice, issue confusion, witness safety, or merely repetitive or
marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim.
App. 1994). A defendant’s right to cross-examine witnesses also “does not mean that a
defendant has a right to present irrelevant evidence.” State v. Sheline, 955 S.W.2d 42, 47
(Tenn. 1997).
The United States Supreme Court has stated that even “a constitutionally improper
denial of a defendant’s opportunity” to confront a witness against him, “like other
Confrontation Clause errors, is subject to [a] . . . harmless error analysis.” Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986). The Supreme Court set out the following test:
The correct inquiry is whether, assuming that the damaging potential of the
cross-examination were fully realized, a reviewing court might nonetheless
say that the error was harmless beyond a reasonable doubt. Whether such
an error is harmless in a particular case depends upon a host of factors, all
readily accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the [defendant]’s case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course,
the overall strength of the [defendant]’s case.
- 25 -
Id. (internal citations omitted).
Here, we conclude that the trial court’s limitation on the Defendant’s cross-
examination of Mr. Akila did not violate the Defendant’s constitutional right to confront
witnesses. We believe that Mr. Akila’s testimony that he was originally charged with
felonies was not salient to the Defendant’s case and that this testimony would have been
cumulative. The trial court allowed the Defendant to elicit testimony from Mr. Akila that
showed that he received a favorable plea offer from the State; this showed the jury that
Mr. Akila could have had a bias in favor of the State. Trial counsel asked Mr. Akila
several times whether he was aware that he received a significantly reduced sentence
through the State’s plea offer, and Mr. Akila agreed that he received a reduced sentence.
Information about the exact charges that Mr. Akila originally faced and his original
sentencing exposure would not likely have affected Mr. Akila’s credibility in the jury’s
eyes. Additionally, we note that the State had a strong case against the Defendant. The
victim, Mr. Ferwanah, and the co-defendant, Mr. Akila, both testified that the Defendant
restrained Mr. Akila, and with the help of another, removed Mr. Ferwanah to the garage,
assaulted him and threatened to kill him. Thus, we conclude that the trial court did not
infringe on the Defendant’s right to confront Mr. Akila by limiting the scope of cross-
examination. The Defendant is not entitled to relief.
Admissibility of Mr. Damiri’s testimony
The Defendant argues that the trial court erred by excluding testimony from Mr.
Damiri regarding a monetary agreement among the Defendant, Mr. Ferwanah, and their
representatives. The Defendant also asserts that the trial court erred in excluding Mr.
Damiri’s testimony that Mr. Ferwanah cursed at some of the Defendant’s witnesses,
including Mr. Damiri, outside of the courtroom. The Defendant contends that the
testimony was relevant to show Mr. Ferwanah’s bias against the Defendant and that the
limitation more probably than not affected the verdict. The State argues that the trial
court properly excluded the testimony because it made “no fact at issue more or less
probable, and the trial court reasonably found it immaterial.”
Generally, “questions concerning the admissibility of evidence rest within the
sound discretion of the trial court, and this [c]ourt will not interfere in the absence of
abuse appearing on the face of the record.” State v. Plyant, 263 S.W.3d 854, 870 (Tenn.
2008). A trial court abuses its discretion when it “applies an incorrect legal standard or
reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Id. (citing State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).
In order for evidence to be admissible, it must be relevant. Tenn. R. Evid. 402.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
- 26 -
consequence to the determination of the action more probable or less probable than it
would without the evidence.” Tenn. R. Evid. 401. However, even if evidence is relevant,
it “may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury . . . .” Tenn. R. Evid.
403. “A witness may be cross-examined on any matter relevant to any issue in the case,
including credibility[.]” Tenn. R. Evid. 611(b). “A party may offer evidence by cross-
examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced
against a party or another witness.” Tenn. R. Evid. 616.
During a jury-out hearing, the Defendant proffered Ramadan Damiri’s testimony
to the trial court. Mr. Damiri stated that he was a member of the Islamic community in
Nashville and had known the Defendant for twenty years. In April 2012, Mr. Damiri
visited Mr. Ferwanah at Mr. Ferwanah’s residence. Mr. Ferwanah’s uncle and father-in-
law were also visiting. Mr. Damiri discussed the possibility of “resolv[ing] the problem
peacefully” with the men. Mr. Damiri later met with a man named Mohammed5 and Mr.
Ferwanah’s father-in-law at a restaurant to discuss the offenses. Because Mr. Ferwanah’s
father-in-law agreed to meet with Mr. Damiri while Mr. Ferwanah was present, Mr.
Damiri understood that Mr. Ferwanah’s father-in-law represented Mr. Ferwanah’s
interests in the discussions. At the restaurant, Mr. Damiri, Mohammed, and Mr.
Ferwanah’s father-in-law discussed how Mr. Ferwanah should be compensated “to
alleviate suffering by giving some monetary amount and paying some of his medical
bills, basically.” The men met at least three times to discuss compensation. At the final
meeting, Mr. Ferwanah’s father-in-law informed Mr. Damiri and Mohammed that “he
would settle the issue” for $3,500,000. The father-in-law informed Mr. Damiri and
Mohammed that he would accept $2,500,000 in cash and the remaining $1,000,000 in
payments. He also set a deadline of forty-eight hours for delivery of the cash payment.
Mr. Damiri stated that Mr. Ferwanah had not filed his civil lawsuit against the Defendant,
Electronics Tech, and Mr. Akila when these discussions took place.
The trial court denied the Defendant’s motion to admit Mr. Damiri’s testimony
and stated the following:
All right. Well, here’s what I think. I -- when you’re trying to show
bias of a witness, or particularly a victim, certainly, any monetary concerns
are always fertile ground for that. I think the defense has started from
opening statement, all the way through their cross-examination of Mr.
Ferwanah, that that’s an issue. And so I think they’ve raised the issue. I
think the proof has made it an issue. And so the defense should be able to
5
The record is unclear regarding Mohammed’s relationship to the Defendant or Mr. Ferwanah.
- 27 -
establish that, if they can. And they’ve asked Mr. Ferwanah about the civil
lawsuit, which he’s admitted to and talked about the amount of money here.
What is concerning to me about this -- and the reason I asked the
State if they’re objecting to it is because it sounds to me like the Muslim
community believes this happened. And they’re coming in to try to settle
this peacefully between the parties instead of coming into courts.
....
I heard no proof that Mr. Ferwanah instigated this. It sounded to me
like this witness, being part of the Islamic community, took the steps to try
to reach a peaceful settlement here. Although, it could be argued that Mr.
Ferwanah’s father-in-law was acting as his agent, we haven’t heard that
from the father-in-law. There’s some -- something’s being made here, the
father-in-law very well may have been acting on his own. What we don’t
have is any statement[] from Mr. Ferwanah himself about demanding the
2.5 or 3.5 million dollars, 2.5 in cash.
The proof that’s been presented to me seems more like the cultural
community, following their cultural norm, to try to reach a peaceful
settlement without going to court. That, to me, does not play at all into the
bias -- the alleged bias of Mr. Ferwanah or seeking money in this.
Obviously, there hasn’t been any settlement or we would have heard about
it.
So I think that the testimony of [Mr. Damari] . . . I don’t think that
goes to show that Mr. Ferwanah was seeking money in this. And so I’m
going to deny your request to introduce the testimony . . . that Mr. Damari
just presented.
Later, Mr. Damiri made another proffer regarding his opinion of the Defendant’s
character and reputation. Mr. Damiri also stated that, while he was outside the courtroom
during a recess, Mr. Ferwanah cursed at Mr. Damiri and Mr. Ramadan while returning to
the courtroom. The trial court ruled that this testimony was inadmissible because it did
not show bias and was not related to a material issue.
We conclude that the trial court did not err in excluding Mr. Damiri’s testimony
regarding the monetary negotiations between the Defendant and Mr. Ferwanah or the
testimony regarding Mr. Ferwanah cursing at Mr. Damiri and Mr. Ramadan. We agree
with the trial court that Mr. Damiri’s proffered testimony was not relevant to any material
- 28 -
issues at trial. While the Defendant had raised the issue of Mr. Ferwanah’s bias against
him through proof of Mr. Ferwanah’s civil suit, the proffered testimony did not tend to
make Mr. Ferwanah’s bias any more probable. The testimony was speculative, unclear,
and did not sufficiently establish that Mr. Ferwanah’s father-in-law was acting as Mr.
Ferwanah’s agent or acting as a leader in the Muslim community. Additionally, it is
unclear whether Mr. Damiri and Mohammed accepted Mr. Ferwanah’s offer on behalf of
the Defendant. Because Mr. Damiri’s proffered testimony was unclear and speculative,
the trial court did not abuse its discretion by excluding the testimony. The Defendant is
not entitled to relief on this ground.
Denial of court-appointed certified interpreter
The Defendant asserts that the trial court erred by allowing Mr. Ferwanah and Mr.
Akila to “testify in English regarding conversations that took place in Arabic without the
requirement or benefit of a certified or court-appointed translator, . . . rendering the
unofficial translations of the unqualified lay witnesses as unreliable, prejudicial, and
inadmissible, violating constitutional due process and the Tennessee Rules of Evidence.”
The State contends that the trial court did not “appoint” Mr. Ferwanah and Mr. Akila to
be interpreters and that the trial court properly allowed Mr. Ferwanah and Mr. Akila to
testify in English about conversations that were originally spoken in Arabic. The State
additionally argues that the Defendant failed to prove he was prejudiced by the trial
court’s decision because the Defendant did not “identify[] what conversations could be
problematic or how [Mr.] Ferwanah and [Mr.] Akila might have misinterpreted what was
said.”
Tennessee Rule of Criminal Procedure 28 states that the trial court “may appoint
an interpreter pursuant to section 3 of Tennessee Supreme Court Rule 42.” Tenn. R.
Crim. P. 28. Tennessee Supreme Court Rule 42, section 3 states the following:
(a) Appointing an interpreter is a matter of judicial discretion. It is
the responsibility of the court to determine whether a participant in a legal
proceeding has a limited ability to understand and communicate in English.
If the court determines that a participant has such limited ability, the court
should appoint an interpreter pursuant to this rule.
(b) Recognition of the need for an interpreter may arise from a
request by a party or counsel, the court’s own voir dire of a party or
witness, or disclosures made to the court by parties, counsel, court
employees or other persons familiar with the ability of the person to
understand and communicate in English.
- 29 -
Tenn. Sup. Ct. R. 42: § 3(a)-(b). Tennessee Rule of Evidence 604 states that “[a]n
interpreter is subject to the provisions of these rules and applicable statutes relating to
qualifications as an expert and the administration of an oath or affirmation to make a true
interpretation.” Tenn. R. Evid. 604. “Appointment of an interpreter of a witness’s
testimony in a criminal case is a matter for the trial court’s discretion subject to reversal
only for abuse of that discretion.” State v. Van Tran, 864 S.W.2d 465, 475 (Tenn. 1993).
A party contending that a translation of testimony is inaccurate must prove prejudice. Id.
at 476.
On May 12, 2014, Judge Mary Beth Leibowitz6 granted the Defendant’s motion
for a continuance “due to need for the State to supply interpreter in [A]rabic language to
translate [the] threat made to victim in [A]rabic language . . . .”
On September 23, 2014, the trial court filed an order that addressed the
Defendant’s motion to order witnesses to testify about prior statements in the language in
which the statements were originally spoken. The trial court noted that this was a matter
of first impression. The trial court stated the following:
The court finds merit in the arguments for both sides. All parties
involved speak both English and Arabic. The statements in question were
made in Arabic. What the hearer of those statements understood the
meaning of those statements to be is highly relevant. It makes sense that
the hearer testify in English as to what he or she understood the words to
mean. On the other hand, the actual meaning, if different than the
testimony of the hearer, would be relevant during cross-examination or as
impeachment.
Therefore, the court rules that the witness may testify in English as
to what was said in Arabic. However, he may be required during cross-
examination to testify as to the actual Arabic words that were spoken. The
Defendant may have a certified interpreter present during this testimony.
The Defendant may present proof by the interpreter during the Defendant’s
case if he wishes to do so in order to impeach the hearer.
In this case, we conclude that the trial court did not err in declining to appoint a
certified translator or by not requiring Mr. Ferwanah and Mr. Akila to testify in Arabic
about statements made during the commission of the offenses. There is no evidence that
any “participant in [this] legal proceeding ha[d] a limited ability to understand and
6
Judge Leibowitz retired between the May 12, 2014 hearing and the September 23, 2014 hearing
on this issue.
- 30 -
communicate in English.” See Tenn. Sup. Ct. R. 42, § 3(a). We note that the trial court
permitted the Defendant to have a certified interpreter present during witness testimony
to impeach the witness as to any Arabic translation. However, the Defendant did not take
advantage of this portion of the trial court’s order. The Defendant also did not make a
proffer to the trial court to set out any inaccuracies in Mr. Akila or Mr. Ferwanah’s
testimony as to their testimony in English of conversations in Arabic. Thus, the
Defendant cannot establish that he was prejudiced by the trial court’s denial of an
interpreter. See Van Tran, 864 S.W.2d at 476. He is not entitled to relief on this ground.
Additionally, the Defendant argues that:
[b]ecause the trial [court] canceled the previously arranged interpreters’
services, allowed the witnesses to translate the statements without giving
the original quote or cultural contact, and refused to compel the state to
provide written, Arabic statements[,] [the Defendant] was faced with the
choice to waive his right against self-incrimination or to not put on proof to
refute potentially biased, inaccurate testimony.
However, the record reflects that neither Judge Leibowitz nor the trial court ordered the
appointment of an interpreter. As set out above, the trial court’s order specifically
allowed the Defendant to “have a certified interpreter present during this testimony” and
to “present proof by the interpreter during the Defendant’s case if he wishes to do so in
order to impeach [Mr. Ferwanah’s or Mr. Akila’s testimony].” The Defendant did not
retain a certified interpreter to observe testimony. He also did not object to any improper
translations during Mr. Ferwanah’s or Mr. Akila’s testimony. Rule 36(a) of the
Tennessee Rules of Appellate Procedure states that “[n]othing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.” “The failure to make a contemporaneous objection constituted waiver of the
issue on appeal.” State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). We
conclude that this issue is waived due to the Defendant’s failure to cite to applicable
authorities in support of his argument as well as his failure to take action. In any event,
we conclude that the Defendant’s right against self-incrimination was not implicated by
the trial court’s actions because the Defendant had the ability to present his own
interpreter as an expert witness. The Defendant is not entitled to relief on this ground.
Admission of the victim’s medical records
The Defendant argues that Mr. Ferwanah’s medical records are testimonial
statements that “were recorded not for the limited purpose of medical treatment, but for
the later prosecution of [the Defendant].” He points out that “Mr. Ferwanah was taken to
- 31 -
the hospital after any emergency had ended, being transported after calling 911 and while
law enforcement officers were present” and that “[h]is examination included both an
interview and photographs taken by law enforcement.” The Defendant asserts that
admitting these records without the testimony of an expert witness “allow[ed] the jury to
speculate about what happened without explanation or cross-examination, [which]
violat[ed] [the Defendant]’s right to confront witnesses against him and prejudiced him
severely.” The State contends that the trial court properly admitted the medical records
because they “were prepared as part of the hospital’s treatment of [Mr.] Ferwanah’s
injuries, rather than as an attempt to accuse [the Defendant] of a crime.”
As noted above, “questions concerning the admissibility of evidence rest within
the sound discretion of the trial court, and this [c]ourt will not interfere in the absence of
abuse appearing on the face of the record.” State v. Plyant, 263 S.W.3d 854, 870 (Tenn.
2008). A trial court abuses its discretion when it “applies an incorrect legal standard or
reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party
complaining.’” Id. (citing State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).
In State v. Cannon, our supreme court stated the following:
[U]nder both the United States and the Tennessee Constitutions, the
appropriate analysis for determining whether an out-of-court statement may
be admitted into evidence without violating an accused’s right of
confrontation is as follows. A court must first determine whether the
statement is testimonial or nontestimonial. Statements are testimonial if the
primary purpose of the statement is to establish or to prove past events
potentially relevant to later criminal prosecutions. A testimonial statement
is inadmissible unless the State can establish that: “‘(1) the declarant is
unavailable and (2) the accused had a prior opportunity to cross-examine
the declarant.’” If the statement is nontestimonial, the Confrontation
Clause does not apply, and the statement must be analyzed under the
“traditional limitations upon hearsay evidence.”
254 S.W.3d 287, 303 (Tenn. 2008) (internal citations omitted).
In Dotson, the Tennessee Supreme Court adopted the District of Columbia Court
of Appeals’ reading of Williams v. Illinois, 567 U.S. 50 (2012) and held that “an out-of-
court statement is testimonial under that precedent if its primary purpose is evidentiary
and it is either a targeted accusation or sufficiently formal in character.” Dotson, 450
S.W.3d at 69 (quoting Young v. United States, 63 A.3d 1033, 1043-44 (D.C. 2013)).
“Whether the admission of hearsay statements violated a defendant’s confrontation rights
is a question of law subject to de novo review.” State v. Davis, 466 S.W.3d 49, 68 (Tenn.
- 32 -
2015) (citing State v. Lewis, 235 S.W.3d 136, 141-42 (Tenn. 2007)). “‘The application of
the law to the facts found by the trial court is a question of law’ that is subject to de novo
review.” Lewis, 235 S.W.3d at 142 (quoting State v. Maclin, 183 S.W.3d 335, 343
(Tenn. 2006)).
Prior to trial, the Defendant made an oral motion in limine, arguing that the
introduction of the victim’s medical records would violate the Defendant’s right to
confront witnesses because the State had only notified the Defendant that it would call
Parkwest Hospital’s records keeper. The trial court reserved its ruling for later in the
trial.
After Mr. Ferwanah’s testimony, the State sought to admit his medical records into
evidence. The Defendant objected on the grounds of relevance because the two witnesses
through whom the State sought to admit the records were records keepers, rather than
medical personnel, but would also testify about Mr. Ferwanah’s condition. The
Defendant asserted that the introduction of the records through these witnesses would
allow the jury to speculate as to the meaning of the information in the medical records.
The Defendant also argued that the introduction of the medical records violated the
Defendant’s right to confront witnesses, violated the rule against hearsay, and that the
prejudice to the Defendant would outweigh any probative value.
The trial court concluded that the affidavits of the custodians of the medical
records authenticated the exhibits. The trial court held that the medical records were non-
testimonial and thus, the Defendant’s right to confront witnesses would not be violated by
their admission. The trial court further held that the medical records were business
records that were maintained in the hospital’s regular course of business. The trial court
concluded that the medical records were relevant to the issue of whether Mr. Ferwanah
sustained a serious bodily injury during the offenses. The trial court further concluded
that “that the probative value [wa]s high and the danger of unfair prejudice [wa]s low in
this particular matter.”
Nancy Dees testified that she worked as the custodian of records for Parkwest
Hospital. The State admitted the records from Mr. Ferwanah’s admission to Parkwest
Hospital through Ms. Dees. Cheryl Green testified that she worked as the custodian of
records for the University of Tennessee Medical Center. The State admitted the records
from Mr. Ferwanah’s admission to the University of Tennessee Medical Center through
Ms. Green.
As the State notes in its brief, it is unclear which statements in Mr. Ferwanah’s
medical records the Defendant asserts are testimonial statements. The Defendant
mentions that Mr. Ferwanah’s “examination included both an interview and photographs
- 33 -
taken by law enforcement.” Mr. Ferwanah testified that, while he was hospitalized, law
enforcement took photographs of his injuries.
In the case sub judice, we conclude that the trial court properly admitted Mr.
Ferwanah’s medical records. Mr. Ferwanah’s medical records from his admission to
Parkwest Hospital do not contain any interview with law enforcement or any
photographs. Thus, the Parkwest Hospital records are non-testimonial and were properly
admitted. Mr. Ferwanah’s medical records from his admission to the University of
Tennessee Hospital trauma center also do not contain any interview with law
enforcement or any photographs, and we conclude that the trial court also properly
admitted these records as non-testimonial. We agree with the trial court that the medical
records fell under the business records hearsay exception. See Cannon, 254 S.W.3d at
303 (stating that “to the extent medical records may be properly categorized as business
records, such records are properly categorized as nontestimonial”). The Defendant is not
entitled to relief on this ground.
Brady violation
The Defendant asserts that the State violated Brady v. Maryland, 373 U.S. 83, 87
(1963), by failing to disclose that Mr. Ferwanah had received compensation from the
State’s Criminal Injuries Compensation Fund (“the Fund”). The Defendant states the
following:
Because [the Defendant] could only have known about the award of
funds to Mr. Ferwanah by disclosure f[rom] the State, the State had notice
that a crucial element to [the Defendant]’s defense was the improper
financial motive of Mr. Ferwanah. Moreover, the State had knowledge that
this claim not only contradicted Mr. Ferwanah’s previous testimony but
that it also contradicted the testimony it intended to offer against [the
Defendant] at the retrial. Because the State failed to disclose the award of
funds, a preponderance of the evidence shows that [the Defendant] was
deprived of his constitutional right to a fair trial and his conviction must be
reversed.
The State responds that the Defendant “failed to show that this evidence was
within the prosecution’s exclusive control, as the law surrounding the Fund indicates that
it is not maintained by a prosecutorial entity” and that “the claim itself is cumulative to
[the Defendant]’s other efforts to impeach [Mr.] Ferwanah, so there was no reasonable
probability that it affected his verdict.” The State also notes that the Public Records Act,
Tennessee Code Annotated section 10-7-504(k), does not prohibit individuals from
discovering a claim, a claimant’s name, and the amount of the claim made to the Fund.
- 34 -
In Brady, the United States Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87. In order to establish a Brady violation,
four prerequisites must be met:
1. The defendant must have requested the information (unless the evidence
is obviously exculpatory, in which case the State is bound to release the
information whether requested or not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “[W]hen there has been a general
request or no request for Brady information, the undisclosed information is ‘material’ if it
‘creates a reasonable doubt that did not otherwise exist.’” Id. (quoting United States v.
Agurs, 427 U.S. 97, 112 (1976)). An omission of evidence must be evaluated in light of
the entire record. Agurs, 427 U.S. at 112.
The prosecution is not required to disclose information that the
accused already possesses or is able to obtain, . . . or information which is
not possessed by or under the control of the prosecution or another
governmental agency. Nor is the prosecution required to seek out
exculpatory evidence not already in its possession or in the possession of a
governmental agency. When exculpatory evidence is equally available to
the prosecution and the accused, the accused “must bear the responsibility
of [his] failure to seek its discovery.”
State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992) (internal citations
omitted) (some alterations in original). The defendant must prove, by a preponderance of
the evidence, that a Brady violation has occurred. Edgin, 902 S.W.2d at 389.
In order to establish a Brady violation, the evidence need not be admissible; it only
needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn.
Crim. App. 1993). Favorable evidence includes evidence that “provides some significant
aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story,
calls into question a material, although not indispens[a]ble, element of the prosecution’s
- 35 -
version of events, or challenges the credibility of a key prosecution witness.” Johnson v.
State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (internal quotation marks omitted). Evidence is
material under Brady “only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United
States v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is “a probability
sufficient to undermine the confidence in the outcome.” Id.
In the Defendant’s motion for new trial, he asserted the following, in pertinent
part:
The State erred by failing to disclose exculpatory evidence under Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). As
demonstrated by the Exhibit entered in the sentencing hearing in this case,7
Mr. Ferwanah was given $15,709.63 in compensation from the State of
Tennessee. Throughout this case, and during the cross-examination
through both trials, the defense raised the monetary motives of Mr.
Ferwanah’s testimony. Therefore, the information regarding the
compensation from the State of Tennessee is exculpatory Brady evidence
that the State should have—but did not—disclose before trial, violating [the
Defendant]’s constitutional rights to Due Process, Brady, 373 U.S. at 87, 83
S. Ct. at 1196-97 ([stating that] “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution”), as well as his constitutional
right to cross-examine effectively the witnesses against him.
At the Defendant’s motion for new trial hearing, trial counsel asked the trial court
to order the release of Mr. Ferwanah’s claim to the Fund. The trial court found that, even
if the State was in possession of Mr. Ferwanah’s claim prior to trial, the State did not
violate Brady by failing to disclose the document to the Defendant. On January 13, 2017,
the trial court released Mr. Ferwanah’s victim compensation fund claim to the Defendant.
The trial court’s order stated the following, in pertinent part:
Upon request of the [D]efendant, the State provided to the court the
State’s file regarding the victim compensation claim in the above titled
action. After review, the court now releases to the [D]efendant the attached
claim and reward. To be clear, the court is not finding that the materials are
7
The State moved Mr. Ferwanah’s victim impact statement into evidence at the Defendant’s
sentencing hearing. The statement mentions that Mr. Ferwanah applied to the Fund for financial
reimbursement of $15,709. 63.
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exculpatory or that the State has committed a Brady violation. Rather, the
documents are being released to assist the [D]efendant in his appellate
claim.
The documents included in Mr. Ferwanah’s claim show that he filed a claim for
medical bills and lost wages. In Section D of the claim, “Crime Information[,]” Mr.
Ferwanah listed the names and addresses of Mr. Akila and the Defendant. The form
states that the Fund is required by law to notify offenders of the victim’s claim. The
documents show that the Division of Claims Administration approved the following
payments in Mr. Ferwanah’s claim:
Payee Type of Claim Amount
Mr. Ferwanah Economic Support $15,002.27
University Health Systems Medical/Dental $ 635.79
Mr. Ferwanah Medical/Dental $ 311.52
Mr. Ferwanah Medical/Dental $ 264.22
Rural Metro of Midsouth LP Medical/Dental $ 106.52
Parkwest Medical Center Medical/Dental $ 207.76
Mr. Ferwanah Medical/Dental $ 131.62
Here, we agree with the trial court that Mr. Ferwanah’s claim to the Fund was not
material. It is not reasonably probable that, had the State disclosed Mr. Ferwanah’s claim
prior to trial, the results of the Defendant’s trial would have been different. See Bagley,
473 U.S. at 682. Cross-examining Mr. Ferwanah about this claim would have
emphasized how severely Mr. Ferwanah was injured by the Defendant’s actions.
Additionally, while the Defendant could have used the claim to further his theory that Mr.
Ferwanah was financially motivated to pursue action against the Defendant, the claim
would have been cumulative because the Defendant was able to cross-examine Mr.
Ferwanah about his civil suit against the Defendant. Additionally, we note that the
Defendant failed to include in the record any motion filed that requested that the State
disclose Brady material.8 Thus, because the evidence is not clearly exculpatory and the
Defendant did not request it, the State did not violate Brady by failing to disclose Mr.
Ferwanah’s claim to the Defendant. See Jonathan Tears v. State, No. M2012-01080-
CCA-R3-PC, 2013 WL 6405734, at *30-31 (Tenn. Crim. App. Dec. 6, 2013)
(determining that the victim’s claim to the Fund was not material), no perm. app. filed.
The Defendant is not entitled to relief on this ground.
8
The only mention of a discovery request in the record is the “Defendant’s oral motion for
specific discovery of 911 tape of call made at 9:30 p.m.” from a motion hearing. “It is the duty of the
party seeking review of the action of the trial court to prepare a record sufficient to enable the reviewing
court to determine if the discretion has been abused.” State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).
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Sufficiency of the evidence
Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
Count one - aggravated kidnapping with deadly weapon
The Defendant argues that “the White factors indicate that this event, if any crime,
was an [a]ggravated [a]ssault and not any kidnapping offense, as demonstrated by the fact
that the jury also convicted [the Defendant] of Aggravated Assault.” The Defendant
asserts that his convictions in counts one and two should be vacated “[b]ecause there was
no removal or confinement above that necessary for an [a]ggravated [a]ssault[.]” The
Defendant also argues that the State failed to establish that the Defendant used a deadly
weapon during the offenses. The State contends that the Defendant instructed Mr.
Desouzaneti to restrain Mr. Ferwanah with zip ties, making the Defendant criminally
responsible for the act. The State also notes that the Defendant tricked Mr. Ferwanah
into coming into Electronics Tech and sitting in a chair. The Defendant then restrained
Mr. Ferwanah and continued to confine Mr. Ferwanah.
As pertinent to the Defendant’s conviction in count one, “[a]ggravated kidnapping
is false imprisonment[] . . . committed . . . [w]hile the defendant is in possession of a
deadly weapon or threatens the use of a deadly weapon.” Tenn. Code Ann. § 39-13-
304(a)(5) (2012). The Tennessee Code Annotated defines “deadly weapon” as “[a]
firearm or anything manifestly designed, made or adapted for the purpose of inflicting
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death or serious bodily injury[,]” or “[a]nything that in the manner of its use or intended
use is capable of causing death or serious bodily injury[.]” Tenn. Code Ann. § 39-11-
106(a)(5)(A)-(B) (2012). “A person commits the offense of false imprisonment who
knowingly removes or confines another unlawfully so as to interfere substantially with
the other’s liberty.” Tenn. Code Ann. § 39-13-302(a) (2012).
In State v. White, our supreme court set out the following list of non-exclusive
factors to consider in determining whether the State proved that the defendant’s removal
or confinement of a victim “was to a greater degree than that necessary to commit the
offense of [aggravated assault:]” (1) “the nature and duration of the victim’s removal or
confinement by the defendant”; (2) “whether the removal or confinement occurred during
the commission of the separate offense”; (3) “whether the interference with the victim’s
liberty was inherent in the nature of the separate offense”; (4) “whether the removal or
confinement prevented the victim from summoning assistance, although the defendant
need not have succeeded in preventing the victim from doing so”; (5) “whether the
removal or confinement reduced the defendant’s risk of detection, although the defendant
need not have succeeded in this objective”; and (6) “whether the removal or confinement
created a significant danger or increased the victim’s risk of harm independent of that
posed by the separate offense.” 362 S.W.3d 559, 580-81 (Tenn. 2012).
Here, the record reflects that the trial court gave the White instruction to the jury
on counts one and two. When the evidence is viewed in the light most favorable to the
State, we conclude that there was sufficient evidence for a rational juror to have found the
Defendant guilty of aggravated kidnapping in count one. The Defendant’s actions of
tying Mr. Ferwanah to the chair and removing him to the basement were beyond that
which was necessary to effectuate the Defendant’s assault of Mr. Ferwanah. See State v.
Jeffrey W. Tittle, No. M2016-02006-CCA-R3-CD, 2017 WL 4773427, at *11 (Tenn.
Crim. App. Oct. 23, 2017) (concluding “that the attempted aggravated kidnapping
involved a separate attempted removal or confinement when the [d]efendant dragged the
victim down the driveway”), no perm. app. filed. Further, the Defendant’s restraint of
Mr. Ferwanah and removal to the garage prevented Mr. Ferwanah from summoning
assistance and reduced the Defendant’s risk of detection. See White, 362 S.W.3d at 580-
81. Mr. Ferwanah could not use his cellular phone or any phone in the building to call
for help or medical assistance because his hands were tied.9 Additionally, the
Defendant’s restraint and removal of Mr. Ferwanah increased Mr. Ferwanah’s risk of
harm independent of the risk of harm posed by the Defendant’s aggravated assault
because Mr. Ferwanah could not defend the Defendant’s assault while his hands were
9
We acknowledge that the proof evidenced at trial reflects that Mr. Desouzaneti tied Mr.
Ferwanah’s hands with zip ties. However, the jury could have found the Defendant guilty for this action
under a theory of criminal responsibility. The record reflects that the trial court instructed the jury on
criminal responsibility as to all four counts.
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tied. We conclude that the Defendant’s actions of restraining and removing Mr.
Ferwanah were not essentially incidental to the Defendant’s aggravated assault of Mr.
Ferwanah.
Regarding the Defendant’s argument that the State failed to prove that the
Defendant used a deadly weapon during the offenses, Mr. Ferwanah stated that the
Defendant had a gun and a knife on a table during the offenses. The Defendant opened
and closed the gun to show Mr. Ferwanah that it was loaded and pointed it at Mr.
Ferwanah’s head. Mr. Akila testified that the Defendant told Mr. Akila to go to the office
and retrieve the Defendant’s gun. When Mr. Akila brought the gun to the garage, the
Defendant pointed it at Mr. Ferwanah’s head. Further, Mr. Ferwanah testified that the
Defendant hit Mr. Ferwanah with a baseball bat and that the masked man hit Mr.
Ferwanah with a “two-by-four.” It was within the province of the jury’s role as factfinder
to credit Mr. Ferwanah’s and Mr. Akila’s testimony that the Defendant used a deadly
weapon during the aggravated kidnapping. The Defendant is not entitled to relief on this
ground.
Count two - especially aggravated kidnapping with serious bodily injury
Regarding count two, the Defendant argues that “there is no proof that Mr.
Ferwanah sustained a serious bodily injury because the State declined to put on any
testimony from any medical professionals.” As noted above, the Defendant also argues
that the State failed to establish that Mr. Ferwanah was removed or confined to a degree
beyond that necessary to accomplish aggravated assault.
As pertinent to the Defendant’s conviction in count two, “[e]specially aggravated
kidnapping is false imprisonment[] . . . [w]here the victim suffers serious bodily injury.”
Tenn. Code Ann. § 39-13-305(a)(4) (2012). The statutory definition of false
imprisonment is set out above. Serious bodily injury is a bodily injury that involves “[a]
substantial risk of death[,]” “[p]rotracted unconsciousness[,]” “[e]xtreme physical
pain[,]” “[p]rotracted or obvious disfigurement[,]” or “[p]rotracted loss or substantial
impairment of a function of a bodily member, organ or mental faculty[.]” Tenn. Code
Ann. § 39-11-106(a)(34)(A)-(E) (2012).
We have previously concluded that the Defendant’s actions of restraining and
removing Mr. Ferwanah were not essentially incidental to the Defendant’s aggravated
assault of Mr. Ferwanah. Regarding the Defendant’s argument on serious bodily injury,
the record reflects that Mr. Ferwanah sustained fractures in his left ankle and both wrists
and bruising and lacerations on various places on his body. He also sustained an injury to
his head. Mr. Ferwanah testified that his pain level after the offenses was ten out of ten,
and his pain did not lessen until he was given morphine at the hospital. He stated that he
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could not return to work for four and a half months. At the time of trial, Mr. Ferwanah
still had pain in his right shoulder, and he occasionally “mixed up” words due to his head
injury. This court has previously stated that “the subjective nature of pain is a question of
fact to be determined by the trier of fact[.]” State v. Eric A. Dedmon, No. M2005-00762-
CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App. Feb. 23, 2006), no perm. app.
filed. Here, it was within the province of the jury’s role as factfinder to credit Mr.
Ferwanah’s testimony that his pain level was ten out of ten. We conclude that Mr.
Ferwanah’s testimony was sufficient to establish that he sustained a serious bodily injury
during the kidnapping. See State v. Dewayne Jones, No. W2016-00074-CCA-R3-CD,
2017 WL 2998900, at *7 (Tenn. Crim. App. July 14, 2017) (concluding that the evidence
was sufficient to establish aggravated assault based on the victim’s testimony that his
pain level was ten out of ten), perm. app. denied (Tenn. Oct. 6, 2017). The Defendant is
not entitled to relief on this ground.
Count three - aggravated assault with serious bodily injury
As noted above, the Defendant argues that the State failed to present any proof
that Mr. Ferwanah sustained a serious bodily injury because no medical professionals
testified at trial.
As applicable to count three, a person commits aggravated assault who
“[i]ntentionally or knowingly commits an assault . . . and[] [c]auses serious bodily injury
to another[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(i) (2012). Serious bodily injury is
defined above. A defendant commits assault when he “[i]ntentionally, knowingly or
recklessly causes bodily injury to another[,]” “[i]ntentionally or knowingly causes
another to reasonably fear imminent bodily injury[,]” or “[i]ntentionally or knowingly
causes physical contact with another and a reasonable person would regard the contact as
extremely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a) (2012).
We have previously concluded that it was within the province of the jury’s role as
factfinder to credit Mr. Ferwanah’s testimony that his pain level after the offenses was
ten out of ten. We conclude that, when the evidence is viewed in the light most favorable
to the State, a rational juror could have found beyond a reasonable doubt that the
Defendant intentionally or knowingly caused Mr. Ferwanah to sustain a serious bodily
injury. The Defendant is not entitled to relief on this ground.
Count four - aggravated assault with a deadly weapon
As noted above, the Defendant argues that the State failed to establish that the
Defendant used a deadly weapon during the offenses.
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As relevant to count four, a person commits aggravated assault who
“[i]ntentionally or knowingly commits an assault . . . and[] uses or displays a deadly
weapon[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(ii) (2012). “Deadly weapon” and
assault are defined above. We have previously stated that it was within the province of
the jury’s role as factfinder to credit Mr. Ferwanah’s and Mr. Akila’s testimony that the
Defendant used a gun, a deadly weapon, during the offenses. We conclude that the
evidence introduced at trial was sufficient for a rational juror to have found that the
Defendant intentionally or knowingly caused Mr. Ferwanah to sustain and fear bodily
injury while using and displaying a deadly weapon.
Sentencing
The Defendant argues that the trial court erred in finding that the Defendant
possessed or employed a firearm or a deadly weapon during the offenses against Mr.
Ferwanah because the State charged the Defendant with two counts of aggravated assault
on alternative theories, one of which was that the assault was committed with a deadly
weapon. Thus, the Defendant contends that the enhancement factor was subsumed as an
element of the offense in count four. Additionally, the Defendant argues that the trial
court erred in finding that the Defendant treated, or allowed Mr. Ferwanah to be treated,
with exceptional cruelty during the commission of the offenses because the factor was
subsumed in the elements of especially aggravated kidnapping and aggravated
kidnapping. The State argues that “[t]he trial court . . . properly treated [the Defendant]’s
convictions as separate when determining which enhancement factors applied.”
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). “[A] trial
court’s misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from its sentencing determination.” Bise, 380 S.W.3d at
709. Moreover, under those circumstances, this court may not disturb the sentence even
if it had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2008).
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In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210(b)(1)-(7) (2016); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the
potential or lack of potential for rehabilitation or treatment of the defendant in
determining the sentence alternative or length of a term to be imposed. Tenn. Code Ann.
§ 40-35-103(5) (2016).
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2016); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2016), Sentencing Comm’n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c) (2016).
Although the trial court should also consider enhancement and mitigating factors,
such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2016); see also Bise,
380 S.W.3d at 698, 704; Carter, 254 S.W.3d at 346. We note that “a trial court’s
weighing of various mitigating and enhancement factors [is] left to the trial court’s sound
discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select
- 43 -
any sentence within the applicable range so long as the length of the sentence is
‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 343. A trial
court’s “misapplication of an enhancement or mitigating factor does not invalidate the
sentence imposed unless the trial court wholly departed from the 1989 Act, as amended
in 2005.” Bise, 380 S.W.3d at 706. “[Appellate courts are] bound by a trial court’s
decision as to the length of the sentence imposed so long as it is imposed in a manner
consistent with the purposes and principles set out in sections -102 and -103 of the
Sentencing Act.” Carter, 254 S.W.3d at 346. “By statute, an enhancement factor must
be appropriate for the offense and not an essential element of the offense.” State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002) (citing Tenn. Code Ann. § 40-35-114 (1997 &
Supp. 2001)).
The trial court found that the Defendant was a leader in the commission of an
offense that involved two or more actors because the Defendant organized the offenses
and directed Mr. Akila and Mr. Desouzaneti. See Tenn. Code Ann. § 40-35-114(2)
(2016). The trial court gave this factor “a significant deal of weight[.]” The trial court
also found that the Defendant treated or allowed Mr. Ferwanah to be treated with
exceptional cruelty during the commission of the offenses. See Tenn. Code Ann. § 40-
35-114(5) (2016). However, the trial court did not give this enhancement factor much
weight. The trial court found that the Defendant possessed or employed a firearm or
other deadly weapon during the commission of the offenses. See Tenn. Code Ann. § 40-
35-114(9) (2016). The trial court only applied this enhancement factor to counts two and
three and gave the factor “some weight.”
Here, the trial court ordered the Defendant to serve sentences within the proper
range for a Range I standard offender. The Defendant received a sentence of twelve
years for his conviction in count one, aggravated kidnapping, which is a Class B felony.
See Tenn. Code Ann. § 39-13-304(b)(1) (2012); § 40-35-112(a)(2) (2016) (a Range I
sentence for a Class B felony is eight to twelve years). The Defendant received a
sentence of seventeen years for his conviction of especially aggravated kidnapping, a
Class A felony, in count two. See Tenn. Code Ann. § 39-13-305(b)(1) (2012); § 40-35-
112(a)(1) (2016) (a Range I sentence for a Class A felony is fifteen to twenty-five years).
The Defendant received sentences of six years for each of his convictions of aggravated
assault, a Class C felony, in counts three and four. See Tenn. Code Ann. § 39-13-
102(e)(1) (2012); § 40-35-112(a)(3) (2016) (A Range I sentence for a Class C felony is
three to six years). Because the trial court gave the Defendant an in-range sentence, the
trial court’s decision is afforded a presumption of reasonableness, and we will not reverse
absent an abuse of discretion.
- 44 -
Exceptional cruelty enhancement factor
The exceptional cruelty enhancement factor is usually applied “in cases of abuse
or torture.” State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995) (citing
State v. Davis, 825 S.W.2d 109, 113 (Tenn. 1991); State v. Haynes, 720 S.W.2d 76, 86
(Tenn. Crim. App. 1986)). Our supreme court has stated that this enhancement factor
“denotes the infliction of pain or suffering for its own sake or from the gratification
derived therefrom, and not merely pain or suffering inflicted as the means of
accomplishing the crime charged” and “requires more than the physical infliction of
serious bodily injury upon a victim.” Reid, 91 S.W.3d at 311. In order for this factor to
properly apply, “the facts must demonstrate a culpability distinct from and greater than
that incident to the offense.” Id. (citing State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997)).
In Reid, our supreme court noted that exceptional cruelty was not an element of the
offense of especially aggravated robbery and that “proof of serious bodily injury, which
is an element of especially aggravated robbery, does not necessarily establish the
enhancement factor of ‘exceptional cruelty.’” Id.
Initially, we note that “exceptional cruelty” is not an element of aggravated
kidnapping, especially aggravated kidnapping, or aggravated assault. See Tenn. Code
Ann. § 39-13-304(a)(5) (2012); § 39-13-305(a)(4) (2012); § 39-13-102(a)(1) (2012). We
conclude that the trial court properly found that the Defendant treated or caused Mr.
Ferwanah to be treated with exceptional cruelty during the offenses. The trial court noted
that Mr. Ferwanah felt terrified and helpless during the offenses and believed that he was
going to die. The trial court stated that Mr. Ferwanah’s kidnapping was “one of the
worst” that the trial court had seen. The Defendant tricked Mr. Ferwanah into coming
into Electronics Tech, sitting down, and being tied up. The Defendant then beat and
threatened Mr. Ferwanah with various weapons while demanding that Mr. Ferwanah
confess to having an affair with the Defendant’s wife. The Defendant also inferred that
he had already killed the Defendant’s wife and would kill Mr. Ferwanah and dispose of
his body. We agree with the trial court that the circumstances of these offenses show that
the Defendant acted with exceptional cruelty. The Defendant is not entitled to relief on
this ground.
Firearm or deadly weapon enhancement factor
When a defendant is convicted on multiple counts of the same offense that are
based on alternative theories, the counts based on serious bodily injury may be enhanced
by the use or possession of a deadly weapon. See State v. Carter, 986 S.W.2d 596, 598
(Tenn. Crim. App. 1998) (“[T]he use of a deadly weapon is not an essential element of an
aggravated assault causing serious bodily injury and can be an enhancement factor.”).
We conclude that the trial court did not abuse its discretion in its application of the
- 45 -
firearm or deadly weapon enhancement factor to the Defendant’s sentence. Here, the
trial court specifically did not apply the firearm or deadly weapon enhancement factor to
count four, aggravated assault based on the use or possession of a deadly weapon. Thus,
the enhancement factor was not included as an element of the offense, and the trial court
properly applied this enhancement factor.
Purposes and principles of the Sentencing Act
Additionally, the Defendant contends that his sentence does not abide by the
principles and purposes of the Sentencing Act. As noted above, we afford the trial
court’s sentencing decision a presumption of reasonableness because the trial court
ordered sentences within the statutory range. We conclude that the trial court properly
considered the purposes and principles of the Sentencing Act. The evidence supports the
trial court’s decision to order the maximum sentence for the Defendant’s convictions of
aggravated kidnapping in count one and aggravated assault in counts three and four. The
Defendant tricked his friend, Mr. Ferwanah, into entering Electronics Tech, sitting in a
chair, and being restrained. The Defendant then spent several hours beating and
threatening Mr. Ferwanah with various weapons and directing Mr. Akila to film the
offenses. The Defendant also directed Mr. Desouzaneti’s involvement in the offenses.
The Defendant threatened to kill Mr. Ferwanah and dispose of his body if he did not
confess to having an affair with the Defendant’s wife. Mr. Ferwanah sustained bruising,
lacerations, and broken bones from the offenses. Mr. Ferwanah and his family also
sustained serious emotional injury from the offenses and received counseling. The trial
court ordered the Defendant to serve a sentence near the bottom of the range for his
conviction of especially aggravated kidnapping, a Class A felony, in count two and
ordered the Defendant’s sentences to be served concurrently with each other for a total
effective sentence of seventeen years in TDOC. We conclude the trial court did not
abuse its discretion in its sentencing of the Defendant. The Defendant is not entitled to
relief on this ground.
Cumulative Error
The cumulative error doctrine recognizes that there may be many errors
committed in trial proceedings, each of which constitutes mere harmless error in
isolation, but “have a cumulative effect on the proceedings so great as to require reversal
in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76
(Tenn. 2010). To warrant review under the cumulative error doctrine, there must have
been more than one actual error during the trial proceedings. Id. at 77. We have found
no errors in this case. Thus, the Defendant is not entitled to cumulative error relief.
- 46 -
III. Conclusion
Based on the aforementioned reasons, we affirm the judgments of the trial court.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
- 47 -