Com. v. Shuman

• Decision Date: 06 March 1984
• Citation: 462 N.E.2d 80,391 Mass. 345
• Parties: COMMONWEALTH v. Harry SHUMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 80

462 N.E.2d 80

391 Mass. 345

COMMONWEALTH v. Harry SHUMAN.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 15, 1983.

Decided March 6, 1984.

Willie J. Davis, Boston (Steven J. Rappaport, Boston, with him), for defendant.

Margot Botsford, Asst. Dist. Atty. (Patricia A. McEvoy, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant, an attorney, appeals from his conviction of conspiracy with Morton Swartz, ¹ a physician, to steal money of the value of more than one hundred dollars by defrauding an insurance company. He argues that there was insufficient evidence of his guilt, that he was entrapped, and that the conduct of police undercover agents in staging an automobile accident and filing falsified documents denied him his right to due process of law.

Before trial the defendant moved for a dismissal of the indictment, asserting entrapment and, as a second ground, that police conduct had been "so offensive to fair play that due process principles bar[red] invoking the judicial process to obtain a conviction." The motion to dismiss was denied after an evidentiary hearing. The case was subsequently tried before another judge without a jury. The defendant moved for a required finding of not guilty at the close of the Commonwealth's case. That motion was denied. The judge found the defendant guilty and sentenced him to two years in a house of correction, with the sentence being suspended for two years. A stay of execution of sentence pending appeal was allowed. The defendant appealed the conviction, following which the motion judge filed a memorandum of decision relative to the previously denied motion to dismiss. The memorandum included findings. We granted direct appellate review. We affirm the conviction.

The following evidence was introduced at trial. After a discussion with his commanding officer concerning suspected automobile insurance fraud, State police trooper Richard Barrett obtained two automobiles with money he had received from the State police insurance crime prevention unit. He registered them with fictitious names, insured them under those names, and staged an accident at the Framingham State police barracks on February 14, 1979. Barrett caused the front of one car to collide with the rear of the other car.

Barrett then entered this "accident" in a State police log as an actual occurrence. He completed and filed an accident report which stated that an automobile, containing a driver and a passenger, had been struck from behind in an accident occurring at the intersection of Routes 126 and 9 in Framingham. No injuries were listed on the accident report. The stated name of the driver was Richard J. Barry, and that of the passenger was Thomas Sullivan. The names were fictitious. Barrett then "issued" a citation to Carlos Orantes, the fictitious owner and operator of the second automobile. This citation was filed in the Framingham Division of the District Court. The court was not informed of the trooper's investigation, and Barrett later paid the fine for the citation. Stating that he was Carlos Orantes, Barrett reported the accident to Aetna Insurance Company, with whom he had insured the second automobile in Carlos Orantes' name.

Later that day, Barrett telephoned Dr. Swartz stating that he was "Rich" Barry and that he had just had an accident and that he thought Swartz could help him out. Barrett described the accident, and Swartz replied, "Now, listen, this is what happened. When you were struck from behind, that caused you to go forward and hit your chest on the steering wheel which caused your neck to go back and snap. You also hurt your shoulders, your back, and your knees." Barrett laughed, and Swartz warned him that unless his expenses exceeded $500, his recovery would be minimal. Swartz also advised Barrett to take some time off from work because "it makes it look better on the claim." Swartz stated that he would put Barrett and Thomas Sullivan, the fictitious injured passenger, in touch "with an attorney friend of his," and made an appointment to see Barrett and Sullivan in the morning. Swartz told Barrett to recite his injuries to Swartz, to be certain that Barrett would know what to say, "in case [he was] asked."

The next day, Barrett, posing as Richard Barry, and Trooper Thomas Summers, posing as his passenger, went to see Swartz at his office. Without physically examining either Barrett or Summers, Swartz made an appointment with another doctor for X-rays that afternoon and explained again that under the no-fault insurance law, medical expenses have to exceed $500 to obtain a worthwhile recovery. Swartz then telephoned the defendant's office and made an appointment with him for Barry and Sullivan. That was the first time that the troopers had heard of the defendant Shuman.

On February 17, 1979, Barrett and Summers went to the defendant's law office. The defendant said, "I understand you were in a car accident. What are your injuries?" The troopers laughed and said that the defendant would have to call Swartz to find out. The defendant approved of Swartz's advice that they stay out of work, and when Barrett told the defendant that they already had had X-rays taken, the defendant stated, "Good. Leave it to Morty [Swartz] to cover all the bases." Before inquiring about Barrett's and Summers' injuries or talking to Swartz, the defendant stated that Barrett and Summers should see specialists. He said that one of them should see a neurologist and the other should see an "orthopedic man," in order to have expenses which would exceed $500. The defendant then telephoned Swartz and told him that he wanted Barrett and Summers to see two specialists.

The defendant gave Barrett the name of a neurologist and informed Barrett that he had hit his head on the windshield and was having headaches. Barrett denied this, and the defendant repeated his instructions. When Barrett asked if the specialist would know that he was lying, the defendant stated, "Don't worry about that. He plays the game." The defendant gave Summers the name of an orthopedic specialist who, he said, "plays the game too." As the troopers were leaving, the defendant stated that they would each get between two and three thousand dollars, and that "[h]ypothetically, what will happen is you will be seeing the doctor--Dr. Swartz--about twenty times in the next two or three months. But don't worry about that. It's only on paper. You don't really have to go see him." The defendant explained that these fictitious visits would inflate their medical expenses.

After this visit, Barrett made two visits to the neurologist recommended by the defendant. Barrett later spoke with the defendant, who complained that there had been a "mess-up" with Summers' visit to his specialist because Summers had not informed the specialist of any ailments. Summers had in fact been to see the orthopedic specialist suggested by the defendant. At the defendant's request, Summers returned to the defendant's office on May 15, 1979. The defendant showed Summers a copy of the medical report prepared by the orthopedic specialist and mailed to the defendant. The defendant stated that he would have to "bury" this report because it was a "bad" report in that it said that there was nothing wrong with Summers. The defendant repeated that it was imperative to exceed $500 in medical expenses and that Summers must go to another specialist to achieve this goal. The defendant telephoned Swartz and said, "Hello Morty, I have Tom Sullivan here. I just received a bad report from [the orthopedic specialist]. We have to get him to another specialist who plays the game." After this conversation, the defendant told Summers to see another specialist and "to play the game straight." He then told Summers to remember that Summers had suffered from neck and knee injuries and that he should tell the specialist that he had seen Dr. Swartz approximately twenty times. In fact, Summers had only seen Swartz on one occasion. Summers later saw the second specialist on two occasions.

On February 8, 1980, Barrett returned to the defendant's office and, pursuant to a search warrant, seized the files relating to "Barry" and "Sullivan." A search of these files revealed bills from each of the specialists concerning the visits of Barrett and Summers. Also included were bills from Swartz indicating thirteen visits from Barrett. In fact, Barrett had only been to see Swartz on one of these dates.

The files of the Aetna Casualty Insurance Company, which insured the vehicle that collided with Barrett and Summers' automobile, indicated that the defendant filed a letter of representation concerning the claims of "Barry" and "Sullivan". The defendant made a settlement demand for "Barry" and "Sullivan" to Aetna's claim representative, after describing the bills for their visits to Swartz and the various specialists. The figures listed for these visits to Swartz included the fictitious visits that were never made by Barrett or Summers.

The defendant's argument to the trial judge in support of his motion for a required finding of not guilty was that insufficient evidence had been introduced to warrant a finding of conspiracy between the defendant and the physician, Swartz. The defendant makes that argument here as well. The argument has no merit. "[A] motion for [a required finding of not guilty] should be denied 'if all the circumstances including inferences [that are not too remote according to the usual course of events] are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.' " Commonwealth v. Latimore, 378 Mass. 671, 676, 393 N.E.2d 370 (1979). We consider the evidence "in its light most favorable to the Commonwealth," Commonwealth v. Dunphy, 377 Mass. 453, 456, 386 N.E.2d 1036 (1979). Keeping...