Ali v. State
| Decision Date | 13 January 2017 |
| Docket Number | No. 1252,1252 |
| Parties | SAHAR BEGUM ALI v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Opinion by Arthur, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
After Sahar Begum Ali's psychologist terminated their therapeutic relationship, Ms. Ali repeatedly threatened and harassed her, sending her numerous text messages, hacking into her private email account, and copying a privileged communication between her and her attorney. The State charged Ms. Ali with 13 counts of illegal access to computers, one count of identity theft, one count of unauthorized possession of a computer code, and other offenses. A Baltimore County jury convicted Ms. Ali, and this Court affirmed the computer-related charges. Ali v. State, 199 Md. App. 204 (2011).
In a petition for post-conviction relief, Ms. Ali contended that she received ineffective assistance of counsel because her defense attorney did not object to what she characterized as expert testimony by a police detective. The circuit court denied her petition. We affirm.
Ms. Ali became a patient of Tina M. Jenkins, Ph.D., a licensed clinical psychologist, in March of 2008. Dr. Jenkins terminated the relationship in September of that year, but allowed it to resume on December 30, 2008, provided that the interactions were limited to one in-person session per week and up to two 15-minute phone calls per week.
Ms. Ali exceeded these limitations, sending text messages to Dr. Jenkins in-between sessions, calling her constantly, and emailing her frequently. At one point, Ms. Ali suggested to Dr. Jenkins that she and her father had contemplated suing her for professional malpractice.
After exchanging privileged emails with her attorney and consulting her professional association, Dr. Jenkins decided to terminate the relationship once again. In a letter dated February 20, 2009, Dr. Jenkins informed Ms. Ali of the termination, citing "recent threats and innuendos of litigation from you and your father." Dr. Jenkins told Ms. Ali that she would remain available on an "emergency basis" for one month while Ms. Ali located a new therapist.
On February 23, 2009, Dr. Jenkins met with Ms. Ali one last time to discuss the details of the termination. At that meeting, Dr. Jenkins gave Ms. Ali a copy of the February 20 letter.
Ms. Ali did not respond well to the termination. She sent at least 15 text messages to Dr. Jenkins over the next four days. In some messages, she threatened legal action. In others, she implored Dr. Jenkins to respond to her. One of the messages attached a photograph showing a hypodermic needle in Ms. Ali's arm, with the caption: "Is this what you want me to do?"
On or about March 6, 2009, Ms. Ali sent an email, attaching a Microsoft Word document, to the Hotmail email account that Dr. Jenkins used to communicate with her patients. The document contained a copy of a private email from Dr. Jenkins to her attorney, accompanied by Ms. Ali's commentary in red type. Ms. Ali offered no explanation of how she obtained this email other than to write that it "fell into [her] lap." At around the same time, Dr. Jenkins began to have trouble logging into her Hotmail email account and began to receive messages that her user ID and password wereincorrect. The doctor experienced no such problems with another email account that she did not use to communicate with patients.
Over the next two days, Ms. Ali sent another 26 text messages to Dr. Jenkins. She implored Dr. Jenkins to respond to her. She said she was "[l]osing it." One of the messages contained a photograph of Ms. Ali holding a gun to her head.
Because of Ms. Ali's "threatening and harassing" behavior, Dr. Jenkins sent her a final termination letter on March 7, 2009. That letter said Dr. Jenkins would obtain a peace order against Ms. Ali if her behavior continued. On March 12, 2009, Dr. Jenkins obtained the peace order, to which Ms. Ali consented.
In April 2009, Detective Delbusso, the contact person for internet crimes at the Howard County Police Department, executed a search of Ms. Ali's Baltimore County residence. He uncovered a hard copy of Dr. Jenkins's private email to her attorney, along with a series of handwritten notes listing Dr. Jenkins's home telephone number, her husband's name, the last four digits of Dr. Jenkins's social security number, and the names of several other patients whom she was treating.1
The State charged Ms. Ali with 13 counts of illegal access to computers, one count of identity theft, one count of unauthorized possession of a computer access code, one count of false application to purchase a regulated firearm, three counts of failure to comply with a peace order, one count of stalking, and one count of harassment.
At trial, Ms. Ali's defense counsel did not deny that she had accessed Dr. Jenkins's email account. Instead, to gain credibility with the jury, counsel adopted a strategy of admitting the obvious while attempting to establish that Ms. Ali's conduct was not "willful" or criminally culpable, but was a troubled young woman's cry for help to a therapist who had abandoned her.2 Although conduct is typically defined as "willful" if it merely is "deliberate and not the result of surprise, confusion or bona fide mistake" (Furda v. State, 194 Md. App. 1, 31 (2010) (citation and quotation marks omitted)), Ms. Ali's counsel persuaded the trial court to instruct the jury that willfulness involves a significantly higher level of culpability - knowingly engaging in conduct for which there is no reasonable excuse. Defense counsel anticipated that Ms. Ali would take the stand in her own defense, present herself as a sympathetic person who desperately needed therapy, and attempt to persuade the jury that she had not acted "willfully."
Detective Delbusso was one of the State's witnesses. He had subpoenaed certified records from internet service providers, which disclosed the Internet Protocol addresses ("IP address") associated with Ms. Ali's home, her place of employment, her father's home, Dr. Jenkins's home, and Dr. Jenkins's office. Citing his "training, knowledge and experience," the detective explained that an IP address is "a unique number that isassigned to your access for the Internet when you go on the Internet." He likened an IP address to "fingerprints."
The detective testified that every time Dr. Jenkins or someone else accessed Dr. Jenkins's email accounts, an "access history log" would disclose the IP address of the device or network that was used to access the account. The State introduced an exhibit that showed each of the IP addresses that, it said, were associated with Ms. Ali.
The detective compiled a spreadsheet that contained a summary of information from the "access history log" for Dr. Jenkins's email accounts. The spreadsheet showed when an IP address associated with Ms. Ali had accessed Dr. Jenkins's email accounts. The detective concluded that Ms. Ali had accessed Dr. Jenkins's accounts around 74 times between January 29, 2009, and March 14, 2009.
Although the State had not designated Detective Delbusso as an expert, trial counsel did not object to the detective's conclusion or to any of the bases for it, including his statement about the unique nature of each IP address.3
After the detective testified, and only minutes before Ms. Ali was supposed to take the stand, she informed her counsel that she was no longer going to testify. The jury convicted Ms. Ali of all charges.
On appeal, this Court reversed some of the convictions,4 but affirmed all of the convictions based on the computer-related charges. On those charges, we reasoned that the evidence "was straightforward and discrete[,] . . . requir[ing] nothing more than for the jury to compare the dates on which [Ms.] Ali accessed [Dr.] Jenkins's email account from her home IP address to the dates of the charged count." Ali v. State, 199 Md. App. at 256.
Ms. Ali filed a petition for post-conviction relief on grounds of ineffective assistance of counsel. In support of her petition, Ms. Ali cited numerous instances of deficient conduct, including counsel's failure to object to expert testimony from Detective Delbusso. After considering testimony from Ms. Ali and her trial counsel, the Circuit Court for Baltimore County denied Ms. Ali's request.
Ms. Ali filed requested leave to appeal on several grounds. This Court granted her leave to appeal on the issue of counsel's failure to object to Detective Delbusso'stestimony.
Ms. Ali presents a single question for our review: "Whether the post-conviction court erred in concluding that defense counsel did not provide constitutionally ineffective assistance by failing to object to testimony by a lay witness regarding internet protocol addresses and records related to these addresses?"
Because the post-conviction court's ultimate conclusion was correct, we affirm.
Whether Ms. Ali received ineffective assistance of counsel is "a mixed question of fact and law." State v. Purvey, 129 Md. App. 1, 10 (1999). "[W]e will defer to the [post-conviction] court's findings of historical fact, absent clear error." Cirincione v. State, 119 Md. App. 471, 485 (1998) (citation omitted). But we exercise our "own independent judgment as to the reasonableness of counsel's conduct and the prejudice, if any." State v. Jones, 138 Md. App. 178, 209 (2001), aff'd, 379 Md. 704 (2004).
The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment and Article 21 of the Maryland Declaration of Rights, guarantee a defendant the right to counsel in a criminal...
To continue reading
Request your trial