Opinion
No. 12–P–519.
2013-09-27
COMMONWEALTH v. Louise F. WIGHTMAN.
By the Court (COHEN, VUONO & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A grand jury returned indictments charging the defendant, Louise F. Wightman, with insurance fraud, filing false health care claims, larceny by false pretenses over $250, and practicing psychology without a license. The charges arose from the defendant's false representation to her patients and their parents that she was a licensed psychologist. Following a jury trial in the Superior Court, the defendant was acquitted of insurance fraud, and was found guilty on thirteen of fourteen counts of larceny by false pretenses, five counts of filing a false health care claim, and one count of practicing psychology without a license. On appeal, the defendant argues that (1) she was denied the right to counsel of her choice when the motion judge, after denying her motion for a continuance to accommodate the schedule of lead trial counsel, required her to proceed with a different attorney from the same law firm; (2) the admission of prior bad act evidence consisting of specific instances of alleged misconduct was incorrect and prejudicial; (3) the judge erred by admitting testimony of an investigative reporter regarding the process she had employed to obtain a Ph.D. from the same online university that had granted a Ph .D. to the defendant, and (4) trial counsel was ineffective in failing to request a jury instruction that “honest and reasonable mistakes of fact” can negate larcenous intent. We affirm.
A number of counts were placed on file.
See Commonwealth v. Larmey, 14 Mass.App.Ct. 281, 283 (1982).
Background. We briefly summarize the facts to provide context for our discussion of the issues. The Commonwealth's witnesses established that in 1996, the defendant enrolled in a doctoral program at the Massachusetts School of Professional Psychology (MSPP). After completing four years of study, the defendant and a colleague founded South Shore Psychology, where the defendant provided mental health services for children experiencing a range of behavioral and social difficulties. In 2001, MSPP learned about the defendant's private practice, which violated school policy, and commenced disciplinary proceedings. However, the defendant withdrew from the school before MSPP concluded its investigation.
Shortly thereafter, the defendant obtained two degrees from Concordia College and University (Concordia): a doctorate in philosophy with a major in psychology, and a doctorate in psychology. Concordia is an unaccredited online institution. After receiving the degrees from Concordia, the defendant began referring to herself as “Doctor” and printed “Ph.D.” on her business cards. She also purchased liability insurance as a psychologist and continued to operate South Shore Psychology. Various witnesses at trial testified that they had taken their children to the defendant for treatment and assumed that she was a licensed psychologist.
In the spring of 2005, Fox News aired two stories about the defendant along with a feature on Concordia. The Boston-area Fox News anchor, Maria Stephanos, obtained a doctoral degree from Concordia as part of the network's feature. At trial, Stephanos testified to the fact that she received her degree in the mail after submitting an enrollment form and paying a fee of $1,299. She did not complete any coursework and she chose the date of her graduation. After Fox News aired the story about Concordia, the defendant stopped using her business cards, changed the name of her practice to South Shore Psychotherapy, and began referring to herself as a therapist.
A member of the Board of Registration of Psychologists testified that the general practice of psychotherapy does not require licensure.
The defendant testified that around the time she left MSPP, she began looking for an educational institution that would accept her coursework credits from her doctoral study in order to obtain her Ph .D. The defendant conducted an Internet search through which she found Concordia. After submitting her transcripts, draft dissertation, course evaluations, and other materials from her MSPP program to Concordia, along with the required fee, the defendant received a Ph.D. degree and two transcripts in the mail. The defendant testified that she thought that her degree was valid because she had completed all required coursework towards her Ph.D. while she was enrolled at MSPP. She acknowledged, however, that she knew Concordia was an unaccredited institution and that therefore her “degree” did not qualify for Massachusetts licensure.
To become a licensed psychologist, one must earn a doctoral degree from a State-accredited program, pass an exam, and participate in a certain number of supervised “experience hours.” Psychologists must fulfill certain other requirements to retain their licenses, such as renewing every two years and participating in continuing education. The defendant testified that she was aware of the requirements for licensure.
Discussion. 1. The motion for a continuance. On April 19, 2007, approximately five days before the scheduled trial date, the defendant requested a one-month continuance. The defendant, who was not present at the hearing, was represented by an associate from the law firm she had hired to defend her. The associate informed the motion judge that lead trial counsel would not be available due to his vacation schedule and “upcoming surgery .” The judge, who was not the trial judge, noted that the case had been pending for two years and that the associate (who was standing before her) had appeared in court on the case “from the beginning.” The judge observed that the associate had demonstrated great familiarity with the facts and the law and was an experienced attorney who had tried “scores of jury trials.” The judge also expressed her skepticism that a continuance was necessary when competent counsel, namely, the associate, was available. Concluding that the motion for a continuance was “simply a way to avoid the inevitable,” the judge denied the motion.
The record indicates that on February 15, 2007, lead counsel had filed a handwritten motion seeking a continuance from April 17 to April 24, 2007. That motion was allowed by a different judge. Thus, there appears to be no question that lead counsel was aware of the scheduled trial date.
The associate acknowledged that she had appeared in court on the case “[a]t least fifty percent of the time.”
The defendant contends that the denial of her motion violated her right to counsel. We disagree. The issue whether a motion for continuance should be granted “lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion.” Commonwealth v. Pena, 462 Mass. 183, 189 (2012). At the same time, “[a] judge may not exercise [her] discretion in such a way that denial of a continuance deprives a defendant of the right to effective assistance of counsel and to due process of law.” Id. at 190.
In the circumstances of this case, we conclude that the judge did not abuse her discretion. Contrary to the defendant's assertion, the judge properly considered the reasons underlying the defendant's request to be represented by lead counsel. Moreover, there was nothing unreasonable about the judge's determination that the motion for a continuance, which was filed only five days prior to trial, was interposed for delay. Given the timing of the motion and the fact that the defendant did, in fact, have representation from the law firm she had selected, reversal on the ground that the motion for a continuance was denied is not warranted.
2. Prior bad act evidence. The Commonwealth presented the testimony of eleven witnesses—two former patients and nine parents of former patients—who described specific incidents of alleged mistreatment or inappropriate behavior by the defendant. For example, one teenage patient, whom we shall call KV, and her mother testified that the defendant did not inform the mother that KV had attempted to cut her wrists with scissors. KV also testified that the defendant told her and other members of a group therapy session that suicide was a form of artistic expression. Multiple witnesses testified that the defendant encouraged patients to state, falsely, that they had been sexually abused by relatives. One parent testified that the defendant told her that the defendant's dog did not like her son, and that therefore her son must be evil. That same parent also testified that the defendant told her that her son was a psychopath and advised her to hide all sharp weapons in the house. Another parent relayed that the defendant dispensed a handful of pills from a glass jar to her daughter, but would not disclose what type of pills she had provided.
The defendant characterizes the testimony described above as inadmissible prior bad act evidence. Before we address the defendant's argument that the judge erred by admitting the testimony, we must determine whether the alleged error was preserved. Our analysis is complicated by the fact that most of the challenged testimony was presented during the first two days of trial, for which no transcript is available. Upon the defendant's motion, a hearing to reconstruct the record was held in the Superior Court. However, this issue was not directly addressed. At the hearing, the prosecutor and defense counsel agreed to submit affidavits describing their recollections of the testimony. Those affidavits, along with the defendant's proposed statement of facts, were certified as part of the appellate record. In her affidavit, defense counsel asserted that she had objected to the testimony at issue. Although the prosecutor did not dispute this assertion at that time, the Commonwealth now argues that there was no such objection at trial. We need not decide, however, whether the claimed error was preserved because we conclude that even under the more favorable standard of review, the defendant is not entitled to a new trial.
The Commonwealth maintains that the challenged evidence cannot be characterized as prior bad act evidence. Given our conclusion that the admission of this evidence was not unduly prejudicial in light of the strength of the Commonwealth's case, we accept the defendant's characterization for the purpose of our analysis.
Apparently, the disc on which the trial proceedings were recorded was inadvertently corrupted.
The trial judge had retired by that time, and the hearing was held before a different judge.
The defendant has moved to clarify and expand the appellate record to include a transcript of the reconstruction hearing conference between the parties and the hearing judge. We allow the defendant's motion and have reviewed the hearing transcript in our analysis of this issue.
The defendant also challenges the prior bad act testimony of two witnesses who testified on the last two days of trial. The defendant concedes that there was no objection to this testimony, but asks us nevertheless to review the admission of this testimony for prejudicial error on the ground that an objection would have been futile at that point. See Commonwealth v. Vinnie, 428 Mass. 161, 172 n.14, cert. denied, 525 U.S. 1007 (1998). Given our conclusion, there is no reason to address this issue.
“It is well settled that the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crime[s] charged. Such evidence, however, is admissible ... to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive. To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time.” Commonwealth v. Butler, 445 Mass. 568, 574 (2005) (internal citations and quotation marks omitted). The judge must also find that the probative value of the evidence in question is not outweighed by a risk of undue prejudice to the defendant. Commonwealth v. Barrett, 418 Mass. 788, 794–795 (1994).
What concerns us in this case is that the challenged evidence was not necessary to establish that the defendant falsely presented herself as a psychologist to her patients and their insurance carriers. Although the evidence was marginally relevant on the issue of the defendant's state of mind and on the issue of reliance (elements of larceny by false pretenses), the judge's determination that its probative value outweighed its prejudice to the defendant is a close call. That said, because we do not believe the judge's decision is “palpably wrong,” it is a decision “which we do not disturb.” Commonwealth v. Fordham, 417 Mass. 10, 22 (1994).
Even if we were to assume otherwise, we are confident that the “the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The evidence of the defendant's guilt was strong. We note as well that the prosecutor did not dwell on the prior bad act evidence in closing, and defense counsel argued, plausibly in our view, that every therapist will have some critics. Defense counsel also pointed out that many of the patients who were critical of her had stayed with the defendant for a substantial period of time. In addition, the judge forcefully and properly instructed the jury regarding the proper use of the evidence. The judge emphasized that it did not matter what the witnesses thought about how the defendant treated her patients and informed the jury that sympathy or compassion for the patients or the parents of the patients had no place in the jury's deliberations. The judge also explained that “what ... Wightman did or did not do and what people said or didn't say” was only relevant to the defendant's state of mind. The jury clearly followed these instructions as evidenced by its split verdict. See Commonwealth v. Ramos, 63 Mass.App.Ct. 379, 382 (2005). Under these circumstances, the defendant has not demonstrated sufficient prejudice to warrant reversal of her convictions.
3. Admission of testimony under the doctrine of “similar circumstances.” Maria Stephanos was one of the Commonwealth's first witnesses. She explained how, during the course of her investigation, she applied for and received a Ph.D. from Concordia with relative ease. The evidence was admitted for the purpose of showing that the defendant must have known that her Ph.D. from Concordia was not valid, and therefore she knowingly and intentionally made false statements when she referred to herself as “Doctor” and as a psychologist. Evidence of these false statements and misrepresentations, the Commonwealth alleged, was necessary to prove knowledge and intent-two critical elements of the offenses. The Commonwealth claimed, and the judge agreed, that this evidence was admissible under the doctrine of “similar circumstances.” See Santos v. Chrysler Corp., 430 Mass. 198, 202–203 (1999).
In its brief, the Commonwealth articulates the argument as follows. “[T]he fact that Stephanos, who did not have a background in mental health counseling, knew that her Concordia degree was fake bore directly on the issue of whether Wightman, who had a master's degree in mental health counseling, knew that hers was not real.”
The defendant challenged the admission of this evidence in a motion in limine and renewed her objection at trial. She argues that the testimony was admitted in error primarily because the Commonwealth failed to show that Stephanos and the defendant had, in fact, obtained their degrees under “similar circumstances,” a foundational requirement for the introduction of this type of evidence. See Kromhout v. Commonwealth, 398 Mass. 687, 693 (1986). She further contends that even if the evidence was admitted properly, its probative value was outweighed by its prejudicial effect. That prejudice, according to the defendant, was further exacerbated by the fact that Stephanos is a “television personality .”
As a preliminary matter, we observe that the doctrine of similar circumstances, which permits the introduction of evidence of similar incidents “if the judge first determines that the jury could find a substantial similarity in circumstances,” is generally applied in tort cases. See Santos v. Chrysler Corp., 430 Mass. at 202. Indeed, the parties have not cited to a criminal case in which the doctrine was invoked, nor have we found any. Despite the absence of any reported criminal cases on the issue, we review the admission of this evidence in the same way we examine other evidentiary decisions, that is, we accord the judge substantial discretion in determining whether the evidence is relevant and whether the probative value outweighs any prejudicial effect.
We conclude that the judge did not err by admitting Stephanos's testimony. The documents obtained by Stephanos were substantially identical to those obtained by the defendant, and the circumstances by which they were obtained were sufficiently similar. Thus, the foundational requirements for admission were met in this case.
Furthermore, the judge conducted a proper analysis in determining whether the testimony was admissible. She found the testimony to be relevant on the issue of the defendant's intent and that any prejudicial implications of the evidence were outweighed by its probative value. In addition, before Stephanos testified, the judge gave a strong cautionary instruction informing the jury that they should not consider Stephanos's profession in assessing her credibility. Then, in her final instructions, the judge instructed the jurors that they could not simply transfer Stephanos's knowledge that her degree was fictitious to the defendant, and made clear that the jury had to determine whether the circumstances were sufficiently similar before the evidence could be considered as reflective of the defendant's state of mind. Given these instructions, as well as the fact that the defendant was acquitted on numerous counts, we are assured that even if the judge erred by admitting the testimony at issue, the error was inconsequential. See Commonwealth v. Flebotte, 417 Mass. at 353.
4. Ineffective assistance of counsel. The defendant contends that her trial counsel was ineffective for failing to request an “honest and reasonable mistake of fact” instruction at trial. Such a mistake can negate larcenous intent. See Commonwealth v. Larmey, 14 Mass.App.Ct. 281, 283 (1982). A defendant is entitled to this instruction if the evidence, viewed in her favor, supports it. Commonwealth v. White, 5 Mass.App.Ct. 483, 488 (1977).
Ordinarily, claims of ineffective assistance of counsel should be raised in a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006). Where, as here, a defendant has not moved for a new trial and the appellate record does not contain an affidavit from trial counsel, we review the record to determine whether the decision not to request a certain instruction was manifestly unreasonable. An ineffective assistance claim made on the trial record alone “is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
The defendant testified at trial that she believed her Concordia degree was legitimate and, in combination with her past training and experience, qualified her to refer to herself as a psychologist. She also testified that she did not know that she had to be licensed to describe herself as a psychologist as long as she did not refer to herself as a licensed psychologist. She also testified that she was familiar with Massachusetts licensure requirements and knew that her degree from Concordia, an unaccredited institution, did not qualify her for licensure.
Determinations of counsel effectiveness in the context of failure to request certain jury instructions require consideration of (1) whether the evidence presented at trial was sufficient to warrant the instruction; (2) whether counsel's failure to request the instruction was so manifestly unreasonable as to defy strategic explanation; and, if so, (3) whether the absence of the instruction created a substantial risk of a miscarriage of justice. See Commonwealth v. Brown, 462 Mass. 620, 629–630 (2012). Even if we were to conclude that the defendant's testimony was sufficient to warrant the instruction, we discern no basis for concluding that trial counsel's failure to request the instruction was manifestly unreasonable. The instruction presented certain risks to the defendant, not the least of which was that it could have undermined her primary trial strategy of showing that she worked as a psychotherapist and not as an unlicensed psychologist. Moreover, as the Commonwealth argues, the judge's instructions accurately defined the elements of larceny by false pretenses, including the element of intent. As a result, we conclude that the failure to request an honest mistake of fact instruction did not result in a substantial risk of a miscarriage of justice. See Commonwealth v. Sarantos, 76 Mass.App.Ct. 728, 732 (2010).
Judgments affirmed.