Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Abdelnabi

Court of Criminal Appeals of Tennessee, Knoxville

June 26, 2018

STATE OF TENNESSEE
v.
NEHAD SOBHI ABDELNABI

          Session March 27, 2018

          Appeal from the Criminal Court for Knox County No. 100273A Steven Wayne Sword, Judge

         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. 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.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         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.

         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 video[1] 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.

          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 man[2] 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.

         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 "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. 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 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 Desouzaneti[3] 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 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 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 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 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 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 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.

          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 -
[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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.