Com. v. Shuman

• Decision Date: 08 November 2005
• Citation: 445 Mass. 268,836 N.E.2d 1085
• Parties: COMMONWEALTH v. Richard SHUMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1085

836 N.E.2d 1085

445 Mass. 268

COMMONWEALTH v. Richard SHUMAN.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued September 9, 2005.

Decided November 8, 2005.

COPYRIGHT MATERIAL OMITTED

Donald A. Harwood for the defendant.

Varsha Kukafka, Assistant District Attorney, Dedham (Susan Corcoran, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

CORDY, J.

On October 26, 1999, a Superior Court jury found Richard Shuman guilty of the premeditated murder of two of his business associates. Shuman appealed and filed a motion for a new trial in this court on November 19, 2002, on the grounds that newly discovered evidence cast substantial doubt on the justice of his convictions or, alternatively, that he was denied the effective assistance of counsel. We remanded the motion to the Superior Court for disposition and stayed appellate proceedings. After reviewing the affidavits and materials filed in support of the motion and without holding an evidentiary hearing, the motion judge, who was also the trial judge, denied the motion. The direct appeal from Shuman's convictions and the denial of his motion for a new trial have been consolidated in this court.

Shuman's defense at trial was lack of criminal responsibility due to a mental illness (depression reaching psychotic dimensions), exacerbated by other ailments and the side effects of medications that left him unable to conform his conduct to the requirements of the law. On appeal, he argues that evidence regarding the connection between the prescription medication Zoloft and a state of agitation known as akathisia was discovered after his trial and casts substantial doubt on the justice of his convictions; or in the alternative, his counsel was ineffective in failing to present evidence concerning the connection between Zoloft and akathisia at trial. He also argues that the motion judge erred in denying him an evidentiary hearing before acting on his motion for a new trial. Finally, Shuman asks the court to exercise its power under G.L. c. 278, § 33E, to reverse his convictions and grant him another trial so that the "critical evidence" he proffers regarding Zoloft may be heard and weighed by a jury. After undertaking a complete review of the trial record, we affirm the convictions, affirm the order denying Shuman's motion for a new trial, and decline to grant relief under G.L. c. 278 § 33E.

1. Background. We summarize the evidence in its light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. The essential facts are not in dispute. On the afternoon of August 5, 1997, Shuman used a nine millimeter Beretta semiautomatic pistol to kill Jack Badler and Howard Librot. Shuman first went to Badler's office at Cabot Place in Stoughton. Badler called his human resources manager, Helen Anderson, to his office door so she might see that Shuman had a gun on his lap. He told her to dial 911 if Shuman did not put it away. Shuman told Anderson, "Don't worry. I won't hurt you," and put the gun away. As Anderson was leaving, Shuman told Badler that he had ruined his business and his life. He then shot Badler in the upper chest, eye, neck, and thumb, and left the office, telling two nearby employees, "Don't worry. I'm not going to shoot you two. I'm not upset with you."

Shuman then drove to Librot's office, also in Stoughton. He entered the office and shot Librot in the head, neck, and chest. With his gun in hand, Shuman left the building and drove away. Both victims died as a result of their wounds. A few minutes later, Shuman arrived at his parents' house and told his mother that he had killed two people. While there, Shuman raised a gun to his head. His mother begged him to stop. Shuman put the gun away, and his parents drove him to the police station.

The shootings were directly linked to a worsening business relationship between Shuman and the victims. That relationship began when Shuman's printing business (Foremost Printers) purchased Web Corp. from Librot in 1989. Librot and his wife continued to run Web Corp. under Foremost's ownership. In 1991, Foremost Printers (Foremost) hired Badler to handle all of its finances and maintain control of the company books. Badler was a friend of Librot. By 1996, after a series of poor business decisions, Foremost was experiencing serious financial difficulties. In the face of these financial difficulties, tensions and disputes between Shuman, Librot, and Badler mounted. Badler and Shuman argued frequently about Badler's control of the company books. Foremost was unable to pay Badler for managing its books, and the company got behind in its financial obligations to the Librots. Librot instructed his employees not to permit Shuman on Web Corp. property and not to assist Shuman with any printing work. On August 1, 1997, Foremost's assets were sold. In connection with the sale, Shuman was required to sign a document that released Badler from any liability related to his work for Foremost. Shuman would not sign the release. On August 5, Badler processed the payroll for Web Corp., but not for Foremost. Badler refused to process Foremost's payroll until Shuman signed the release. That morning, there was a loud argument between Badler and Shuman in Badler's office. Shuman left, but returned later in the day with the gun, and the shootings followed.

There was also evidence that, starting in January of 1997, friends and family began to notice changes in Shuman's personality. He could not sleep, seemed depressed, lost weight, and on one occasion, held a gun to his head. Dr. George Gardos, a psychiatrist, saw Shuman on July 29, 1997, one week before the shootings, and diagnosed a major depression but did not believe Shuman to be a risk of harm to others. Dr. Gardos increased Shuman's preexisting Elavil prescription, to ease depression symptoms, and also prescribed Zoloft, a "mood elevator." After the killings, psychiatrist and defense expert Dr. Harold Bursztajn of Harvard Medical School and the Massachusetts Mental Health Center examined Shuman. Dr. Bursztajn opined that Shuman suffered from "a major depression, with anxiety which reached psychotic dimensions." He also testified that Shuman's diabetes exacerbated the depression, and that the antidepressants that had been prescribed to Shuman shortly before the killings magnified its symptoms. In particular, Dr. Bursztajn noted that Elavil, combined with Zoloft, can give rise to agitation, a need to act, and compulsive behavior that may be organized but is irrational. He also testified that these troubling side effects can come "right away," particularly in patients suffering from diabetes.

2. Discussion. a. Newly discovered evidence. Shuman argues that his motion for a new trial should have been allowed on the ground of newly discovered evidence linking Zoloft to a state of violent urges and agitation, known as akathisia, and proffers the following evidence to support his claim: (1) a posttrial study, published in 2000 by Dr. David Healy, linking Zoloft for the first time to violent urges in individuals who had previously suffered no mental illness; (2) expert testimony given in 2001 in civil litigation involving Pfizer, Inc., which publicly linked Zoloft to akathisia; (3) Dr. Joseph Glenmullen's posttrial examination of Shuman and his medical records, leading Dr. Glenmullen to conclude that Shuman was in a drug-induced state of akathisia when the murders occurred; and (4) an advisory released by the United States Food and Drug Administration (FDA) in 2004, warning of the possible side effects of Zoloft, including akathisia and agitation, especially at the beginning of drug therapy.

A defendant seeking a new trial on the ground of newly discovered evidence must establish that the evidence was unknown to the defendant or trial counsel and not reasonably discoverable at the time of trial. See Commonwealth v. Jones, 432 Mass. 623, 633 n. 6, 737 N.E.2d 1247 (2000); Commonwealth v. Pike, 431 Mass. 212, 218, 726 N.E.2d 940 (2000). He must also establish that the evidence "casts real doubt on the justice of the conviction." Commonwealth v. Salvati, 420 Mass. 499, 506, 650 N.E.2d 782 (1995), quoting Commonwealth v. Scanlon, 412 Mass. 664, 679-680, 592 N.E.2d 1279 (1992). The evidence said to be new not only must be material and credible, see Commonwealth v. Brown, 378 Mass. 165, 172, 390 N.E.2d 1107 (1979), but also must "carry a measure of strength in support of the defendant's position." Commonwealth v. Pike, supra, quoting Commonwealth v. Grace, 397 Mass. 303, 305, 491 N.E.2d 246 (1986).

The decision to deny or grant a motion for a new trial based on newly discovered evidence is committed to the sound discretion of the motion judge. Commonwealth v. Cintron, 435 Mass. 509, 517, 759 N.E.2d 700 (2001). In deciding whether the new evidence would have been a significant factor in the jury's deliberations, had it been admitted at trial, we accord special deference to the action of a motion judge who was also the trial judge. Commonwealth v. Grace, supra at 307, 491 N.E.2d 246, citing Commonwealth v. DeChristoforo, 360 Mass. 531, 543, 277 N.E.2d 100 (1971). The judge here found that the evidence submitted in support of Shuman's motion was not "new" and that there was "no substantial risk the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Grace, supra at 306, 491 N.E.2d 246.

Our examination of the record leads us to agree that Shuman's motion fails on two broad grounds.¹ First, the evidence does not meet the test for "newly discovered" evidence because it was available prior to the trial. Second, the opinion of the defense expert submitted in support of the motion is not substantially different from the defense offered at trial.

The new evidence — Dr. Healy's study, the expert testimony...