Ali v. State
| Decision Date | 01 June 2011 |
| Docket Number | 2010.,Sept. Term,No. 518,518 |
| Parties | Sahar Begum ALIv.STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Robert C. Bonsib (Megan E. Green, MarcusBonsib, LLC, on the brief), Greenbelt, MD, for Appellant.Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: EYLER, DEBORAH S., KEHOE, ARRIE W. DAVIS, (Retired, Specially Assigned), JJ.EYLER, DEBORAH S., J.
In the Circuit Court for Baltimore County, Sahar Begum Ali, the appellant, was convicted by a jury of thirteen 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, and one count of harassment. All but the false application charge arose out of Ali's conduct towards her therapist, Tina Marie Jenkins, Ph.D. Ali unsuccessfully moved for a new trial.
Ali was sentenced to consecutive three-year terms for two counts of illegal access to computers; 18 months consecutive for identity theft; three years consecutive for unauthorized possession of a computer access code; and three years consecutive for false application to purchase a regulated firearm, for a total of 13 years and six months. The court imposed concurrent sentences of 90 days for each count of failure to comply with a peace order and concurrent sentences of three years for ten of the remaining eleven counts of illegal access to computers.1 The court suspended all but one year of Ali's sentence; authorized home detention and work release; placed her on probation for three years; and ordered her to have no contact with Jenkins, her practice, or her family. Finally, Ali was ordered to remain in mental health counseling and treatment with a therapist.
Ali appeals her convictions and the denial of her motion for a new trial, presenting three questions for our review, which we have rephrased:
I. Did the trial court err in denying Ali's motion for judgment of acquittal and motion for anew trial on the charge of false application to purchase a regulated firearm?
II. Did the trial court erroneously allow testimony and admit other evidence that was protected by the psychotherapist-patient privilege?
III. Is Ali entitled to a new trial on all charges?
For the reasons to follow, we answer Question I in the affirmative and therefore shall reverse Ali's false application conviction. We answer Question II in the affirmative with respect to some of the testimony and other evidence that Ali complains about. As to Question III, we shall reverse Ali's conviction for harassment, and remand that charge to the circuit court for further proceedings. Otherwise, we shall affirm the convictions.
In March of 2008, Ali became a patient of Jenkins, a licensed clinical psychologist with a solo practice in Howard County. Six months later, in September of 2008, Jenkins terminated her treatment relationship with Ali. 2 At that time, Ali began seeing other mental healthcare providers.
Around December of 2008, Ali called and emailed Jenkins, seeking to resume treatment with her.3 Ali also had one face-to-face encounter with Jenkins at a local mall. Jenkins agreed to resume treating Ali. At their first session, on December 30, 2008, Jenkins established boundaries for the treatment relationship. She agreed to see Ali in one 50–minute face-to-face therapy session per week. She also agreed to a maximum of two telephone calls with Ali per week with a maximum duration of 15 minutes per call.
At their second session, after treatment resumed, Jenkins asked Ali to sign a “safety contract.” According to Jenkins, a safety contract is a “plan of safety that is particular to each [patient] to make sure they don't act on self-harm or suicidal thoughts.” Ali did so in a “safety contract” with Jenkins.
Shortly thereafter, Ali's conduct both inside and outside of therapy began raising concerns for Jenkins. At their third session, Ali brought “an up-close picture of a handgun and bullets.” She told Jenkins that she owned the gun for protection because she lived alone and anticipated working late hours in a nursing job for which she had recently applied. Jenkins was of the view that Ali intended to “get a shock response” by showing her the picture.
In subsequent sessions, Jenkins discussed the gun with Ali. Ali said she had sold it back to the dealership where she had purchased it. Jenkins sought to have Ali sign a “gun safety agreement” and provide proof that she no longer owned the gun, but Ali refused at that time.4
Ali began sending text messages to Jenkins's business cell phone between in-person therapy sessions; calling her in excess of the agreed number of phone calls; and emailing her frequently.5 In addition, Ali said something to Jenkins that suggested that Ali and her father were contemplating or had contemplated suing Jenkins for professional malpractice.
After consulting with colleagues, the Maryland Psychological Association, and Mark Muffoletto, her personal attorney, Jenkins decided she needed to terminate her professional relationship with Ali. In a letter to Ali dated February 20, 2009 (“Initial Termination Letter”), Jenkins wrote:
As a result of recent threats and innuendos of litigation from you and your father, I must terminate my therapy work with you. Continuing to work with you in this manner would constitute a violation of ethical responsibility in my treatment work with you. Thus, I will work with you to transition to another appropriate treatment provider over the next 30 days from the date of this letter.
In recent contact that you and I have had about ending our treatment work together I told you I would be available to meet with you this Monday February 23, 2009 at 4:30pm. You stated you did not want to attend, but then later changed your mind. At this time I expect that we will be meeting Monday as planned for a final termination session. Then I will continue to be available to you on an emergency basis for the next 30 days from the date of this letter.
Jenkins went on to reference in the letter the other treatment providers Ali was seeing at the time and to suggest other avenues for treatment that Ali could pursue. In closing, Jenkins reiterated that their final meeting would be on February 23, 2009, and that she would “remain available” to Ali “on an emergency basis until March 22, 2009.”
On February 23, 2009, Jenkins and Ali met for their last in-person therapy session (“Termination Session”). Jenkins gave Ali a copy of the Initial Termination Letter (which she previously had mailed to Ali). Ali spent most of the session “tear[ing the letter] into small pieces.”
Between February 24 and 27, 2009, Ali sent Jenkins at least 15 text messages. In some, she threatened legal action against Jenkins. In others, she implored Jenkins to respond or have some sort of contact with her. One of the messages included a photo attachment showing Ali's arm with a hypodermic needle injecting something into it. She captioned the photo: “Is this what you want me to do?” 6
On or about March 6, 2009, Jenkins received an email from Ali that stated: Attached to the email was a Microsoft Word document entitled “integrity.” When Jenkins read the attachment, she recognized it as an email she (Jenkins) had composed and sent to Muffoletto, on February 17, 2009 (“Muffoletto Email”). In the Muffoletto Email, Jenkins had told her lawyer of concerns she had about her ongoing treatment relationship with Ali. The Muffoletto Email that Ali had attached to her March 6, 2009 email to Jenkins had been altered. Using a red font, Ali had inserted her own comments into the text of the Muffoletto Email (“Modified Muffoletto Email”).7
Jenkins had sent the Muffoletto Email to her lawyer from a Hotmail account she used for her business emails. This was the same account she used to contact her patients and through which her patients contacted her. Around the same time that Jenkins sent the Muffoletto Email she had been experiencing difficulties accessing her Hotmail account. Specifically, when she tried to log into that account she received error messages that either her user ID or her password was incorrect. As a result, she had to change her password several times.
On March 7 and 8, 2009, Ali resumed sending text messages to Jenkins. She sent 26 text messages to Jenkins on those two days. In the text messages, Ali once again implored Jenkins to respond to her. She also reported that she was suffering increasing mental problems, saying, for example, that she was “[l]osing it.” Ali repeatedly suggested in the text messages that Jenkins was subjecting herself to potential liability for malpractice by not responding. One message contained a photo attachment of Ali holding a gun to her head.
Also on March 7, 2009, Jenkins wrote Ali a second termination letter (“Final Termination Letter”), which she sent by email and by certified mail. The letter stated:
On February 20, 2009 I notified you that due to continued threats from you and your father, I was forced to terminate my therapy work with you. I informed you that we would meet once more for a face-to-face termination session on February 23, 2009. I also informed you that after that date until March 22, 2009 I would remain available to you in the case of emergency only. However, since February 23, 2009 you have engaged in threatening and harassing behavior toward me on a continuous basis. As such, you have abused my role of emergency contact person. Based on your threatening and harassing behavior, I can no longer be available to you for emergency contact or otherwise [sic] mental health contact.
Effective this date, this will be my final contact with you. I insist that you cease and desist any and all forms of contact with me immediately....
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