Court of Criminal Appeals of Tennessee, Knoxville
Session March 27, 2018
from the Criminal Court for Knox County No. 100273A Steven
Wayne Sword, Judge
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
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
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
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams and J. Ross Dyer, JJ., joined.
L. HOLLOWAY, JR., JUDGE
Factual and Procedural History
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.
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.
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.
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
video fit his
wife and Mr. Ferwanah.
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.
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
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 man 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
continued kicking Mr. Ferwanah. Mr. Ferwanah stated that the
Defendant also had a gun and a knife on a table.
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.
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
"John Doe" after the offenses. However, he did not
know the current status of his civil case.
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.
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.
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.
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.
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.
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
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
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 me. I don't see any single thing that can --
tells me that it would be a possibility.
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.
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 Desouzaneti 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.
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 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.
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
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
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.
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.
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.
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
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 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
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." 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."
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.
trial court ordered the Defendant to serve a sentence of
twelve years in TDOC for count one, aggravated kidnapping.
Regarding count two, especially aggravated 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.
Defendant filed a timely motion for new trial, which the
trial court denied. The Defendant now timely appeals the
trial court's judgments.
to dismiss the indictment
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."
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).
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 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."
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.
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.
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 testimony and declared a mistrial. The trial
court stated that it did not believe that the prosecutor
intentionally solicited the statement from Mr. Akila.
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.
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
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
Motion for mistrial
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."
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).
Mr. Ferwanah's cross-examination, the following exchange
[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 -
[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
[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
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