State v. Chenette, 86-135

• Decision Date: 10 March 1989
• Docket Number: No. 86-135,86-135
• Citation: 560 A.2d 365,151 Vt. 237
• Court: Vermont Supreme Court
• Parties: , Medicare & Medicaid Guide P 37,893 STATE of Vermont v. Steven CHENETTE.

Page 365

560 A.2d 365

151 Vt. 237, Medicare & Medicaid Guide P 37,893

STATE of Vermont v. Steven CHENETTE.

No. 86-135.

Supreme Court of Vermont.

March 10, 1989.

Jeffrey L. Amestoy, Atty. Gen., Susanne R. Young and Joseph T. Malgeri, Asst. Attys. Gen., and Constantine Hutchins III, Law Clerk, on the brief, Montpelier, for plaintiff-appellee.

James W. Murdoch and Kurt M. Hughes of Wool & Murdoch, Burlington, for defendant-appellant.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and KEYSER, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Steven M. Chenette appeals his conviction for knowingly filing false Medicaid claims for medical services not rendered, in violation of 33 V.S.A. § 2581(d). Defendant makes numerous claims on appeal: (1) that the trial court erred in denying defendant's motion for judgment of acquittal; (2) that the jury's verdict was contrary to the weight of the evidence; (3) that the trial court erred in denying defendant's motion for severance; (4) that the trial court made numerous erroneous evidentiary rulings; ¹ (5) that it was error to admit certain "patient charts" into evidence because the seizure of the charts violated the physician/patient privilege and violated defendant's rights under the Fourth Amendment to the U.S. Constitution and Ch. I, Art. 11 of the Vermont Constitution; (6) that the trial court erred in denying defendant's motion to dismiss because the secrecy of the judicial inquest had been violated; (7) that the defendant was wrongfully denied a change of venue; and (8) that defendant was prejudiced and deprived of a fair trial because of the medical emergencies which occurred during the trial. We reject each contention and affirm.

Viewing the evidence in the light most favorable to the State, State v. Kirby, 143 Vt. 369, 370-71, 465 A.2d 1369, 1370 (1983), the facts are as follows.

Defendant practiced medicine in Swanton, Vermont, from mid-1981 through October, 1983. During this time, defendant participated in the state and federally funded Medicaid program. He then moved his practice with all his patient's records to the Health Maintenance Center in Winooski, Vermont, where he maintained an office until December, 1983. He then moved again to Florida, leaving all of his patient records with his associate, Dr. Duane Graveline, of the Health Maintenance Center. Shortly after defendant moved to Florida, the Health Maintenance Center moved to another location where it stored defendant's records along with its own records.

As a health care provider in the Medicaid program, defendant received payment from the State of Vermont for medical care extended to eligible recipients. In the spring of 1983, a Utilization Control Supervisor for the Medicaid Fraud Unit of the Department of Social Welfare made a computer analysis of defendant's Medicaid billing practices. This analysis revealed unusual billing patterns. Based on the analysis, the Attorney General's Office applied for and was granted a subpoena duces tecum from district court to subpoena from the Health Maintenance Center all records relating to ninety-six specified patients along with certain other records and possessions of the defendant. ² Rather than going through all of defendant's records to find those covered by the subpoena, the staff at the Health Maintenance Center turned over all of defendant's records to the Attorney General's Office. The Attorney General's Office then analyzed selected patient records, including those covering 274 Medicaid patients and an unspecified number of non-Medicaid patients.

On September 7, 1984, a judicial inquest was held in district court in connection with defendant's case, and defendant's former secretary testified. On September 20, 1984, the State filed an information alleging ninety-six counts of Medicaid fraud through the knowing filing of false claims. The State proceeded to trial on forty-one counts and dismissed four during trial. At the close of the State's case-in-chief, seventeen counts were dismissed on defendant's motion for acquittal. Twenty counts of Medicaid fraud went to the jury, which returned guilty verdicts on seventeen of the counts. The jury acquitted defendant on three counts. Other facts are revealed below when pertinent.

I.

Defendant moved for a judgment of acquittal at the close of the State's case and at the close of all the evidence, V.R.Cr.P. 29(a), and after discharge of the jury, V.R.Cr.P. 29(c). The trial court denied each of the motions. We affirm these denials.

This Court has made clear that the sole issue raised by a motion for judgment of acquittal is whether the prosecution has introduced evidence fairly and reasonably tending to show the defendant's guilt, that is, whether the jury on that evidence would be justified in finding guilt beyond a reasonable doubt. State v. Lupien, 143 Vt. 378, 381, 466 A.2d 1172, 1174 (1983); State v. Poirier, 142 Vt. 595, 599, 458 A.2d 1109, 1111 (1983). In this case, a great deal of evidence was presented tending to show that defendant knowingly billed Medicaid for services not provided. Defendant presented evidence to prove that he kept sloppy, but honest, records, and that all of the bills he submitted were based upon actual care given or based upon a mistake. Thus, defendant claimed that no bills were "knowingly" false.

The jury must sift through the evidence and determine what to believe and what not to believe. State v. Daigle, 136 Vt. 178, 180, 385 A.2d 1115, 1116 (1978) (for jury to determine whether the evidence is believable and, if believed, what weight to accord it); State v. Eaton, 134 Vt. 205, 208-09, 356 A.2d 504, 506 (1976). Based upon the record before us, the jury clearly had ample evidence to find, beyond a reasonable doubt, that defendant systematically billed Medicaid for services not rendered and that he had the requisite knowledge of falsity. The motions were properly denied.

II.

Defendant's second contention, that the jury verdict was contrary to the weight of the evidence, is also without merit. Defendant's argument is that because the jury returned verdicts of not guilty on three counts it must have been wrong in returning guilty verdicts on the remaining seventeen counts. Defendant argues that "no logical reason" exists for the different verdicts.

As noted above, the jury had the exclusive power and responsibility to judge the credibility of the witnesses. See State v. Daigle, 136 Vt. at 180, 385 A.2d at 1116. In doing so, the jury must accord the defendant a presumption of innocence. See 13 V.S.A. § 6502. In light of the responsibilities of the jury, we view the different verdicts as evidence that they did a conscientious job in evaluating the evidence. We find nothing illogical or improper in the jury's conclusions.

III.

Defendant moved prior to trial to sever each of the offenses in the 96 count information, arguing that they had been joined solely because "they are of the same or similar character." See V.R.Cr.P. 14(b)(1)(A). The trial court denied the motion, finding that the State was charging a "common plan to defraud," that the State would have to offer the same evidence in each case to rebut defendant's defense of mistake or inattention, and that prejudice to defendant would not be avoided by separate trials. Defendant renewed the motion to sever at the close of the evidence as required by V.R.Cr.P. 14(b)(4)(B). It was again denied.

Defendant argues here that the motion to sever should have been granted either under V.R.Cr.P. 14(b)(1)(A) because the offenses were joined solely because they were "of the same or similar character" or under V.R.Cr.P. 14(b)(1)(B) because severance was necessary for a "fair determination of the defendant's guilt or innocence of each offense." In support of the latter ground, defendant argues that his position was greatly prejudiced by the number of counts, especially since many of them did not ultimately go to the jury even though the evidence that supported them did get to the jury.

In State v. Bristol, 143 Vt. 245, 250, 465 A.2d 278, 280 (1983), this Court found that the existence of a "single scheme or plan" defeated the defendant's automatic right to a severance. In such a case, the offenses have not been joined for trial "solely on the ground they are of the same or similar character." V.R.Cr.P. 14(b)(1)(A). Here, the State showed with respect to the claims that went to the jury that defendant filed a group of false bills on a specified day. The last names of the patients for claims filed on a given day started with the same letter or a letter adjacent in the alphabet. For example, all the claims filed on April 18, 1983 were for patients whose last names started with "A" or "B." All the claims submitted on May 9, 1983 were for patients whose last names started with "G." This occurred, the State alleged, because the defendant took the names from billing cards that were kept in alphabetical order. This evidence showed a single scheme or plan rather than a number of isolated instances. Defendant thus had no absolute right to severance under V.R.Cr.P. 14(b)(1)(A).

Defendant's right to a severance must, if it exists at all, fall under the discretionary provisions of Rule 14(b)(1)(B) either because severance is "appropriate" (if determined before trial) or "necessary" (if determined during trial) to allow for "a fair determination" of defendant's guilt or innocence with respect to each offense. These provisions were taken from the American Bar Association's Minimum Standards for Criminal Justice--now the ABA Standards for Criminal Justice (2d ed. 1986). See Reporter's Notes to V.R.Cr.P. 14. Standard 13-3.1(b) provides for severance in the same terms as the rule but goes on to state that the court should consider whether, in view of the number of offenses charged and the complexity of the evidence, the jury can distinguish the evidence and apply the law intelligently to each offense. The commentary to the standard...