Shuman v. Spencer

• Decision Date: 23 February 2011
• Docket Number: No. 09–2459.,09–2459.
• Citation: 636 F.3d 24
• Parties: Richard SHUMAN, Petitioner–Appellant,v.Luis SPENCER, Superintendent, MCI–Norfolk, Respondent–Appellee.
• Court: U.S. Court of Appeals — First Circuit

636 F.3d 24

Richard SHUMAN, Petitioner–Appellant,
v.
Luis SPENCER, Superintendent, MCI–Norfolk, Respondent–Appellee.

No. 09–2459.

United States Court of Appeals, First Circuit.

Heard Sept. 9, 2010.Decided Feb. 23, 2011.

[636 F.3d 26]

Donald A. Harwood, for Appellant.Eva M. Badway, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.THOMPSON, Circuit Judge.

In August of 1997, Richard Shuman gunned down two business associates and was later convicted of first degree murder. At trial, Shuman's defense counsel put on a vigorous insanity defense. Advancing a carefully crafted theory that a “toxic soup” of diabetes, depression, and anxiety medications—including the selective serotonin reuptake inhibitor (“SSRI”) Zoloft—put Shuman in a drug-induced psychotic state at the time of the killings, trial counsel argued that Shuman could not have had the necessary mens rea to commit premeditated murder. A Massachusetts jury rejected Shuman's theory and he was sentenced to life in prison without parole.

After exhausting state remedies, Shuman applied to the federal court for a writ of habeas corpus claiming violations of his constitutional rights under the Sixth and Fourteenth Amendments—specifically, ineffective assistance of counsel. He now challenges the denial of his habeas petition, again insisting that his trial counsel performed ineffectively by failing to investigate and produce evidence that Shuman's killings resulted, not from a general drug-induced psychosis as was advanced at trial, but rather and more specifically from Zoloft-induced “akathisia,” a state of violent

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urges and agitation.¹ While neither Shuman's trial counsel nor his trial expert, Dr. Harold Bursztajn, referred specifically to akathisia, Dr. Bursztajn did testify that Zoloft combined with Shuman's other prescription medicine could give rise to side effects including agitation, a need to act, and “compulsive behavior” that may be “organized” but is nonetheless “delusional.” These side effects, he said, manifest “right away” and are exacerbated by diabetes. For the reasons discussed herein, we affirm the district court's denial of habeas relief.

I. BackgroundA. Facts

We review the facts largely as described by the Massachusetts Supreme Judicial Court (“SJC”) decision affirming Shuman's conviction, “supplemented with other record facts consistent with the SJC's findings.” Yeboah–Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir.2009) (quoting Healy v. Spencer, 453 F.3d 21, 22 (1st Cir.2006)) ( cert. denied ––– U.S. ––––, 130 S.Ct. 639, 175 L.Ed.2d 491 (2009)).

On the afternoon of August 5, 1997, Shuman shot and killed two business associates, Jack Badler and Howard Librot. The Commonwealth attributed the shootings to a deteriorating business relationship. In 1989, Shuman's printing business, Foremost Printers (“Foremost”), had purchased another company, Web Corp., from Librot. Librot and his wife continued to run Web Corp. under Foremost's ownership. Then, in 1991, Foremost hired Badler, a friend of Librot's, to handle the company's finances and accounting. In 1994 and 1995, Shuman was on leave from Foremost as part of a stock buy-out agreement. While Shuman was away, Badler remained in charge of Foremost's finances. The company did not fare so well. By 1996, Foremost had endured a series of poor business decisions which caused it to experience serious financial difficulties. Faced with dimming business prospects, tensions mounted between Shuman, Librot, and Badler. Frequently, Shuman argued with Badler about the company's accounting. By 1997, Foremost was unable to pay Badler's consulting fee for managing its books. Nor was it able to meet its financial obligations to Librot. Soon thereafter, Librot re-purchased Web Corp. from Foremost. Once the sale was complete, Librot instructed his employees not to permit Shuman on Web Corp. property and not to assist him with any printing.

On August 1, 1997, Foremost's assets were sold to another company, Starr Printing (“Starr”). Starr refused to retain Badler to handle the company's books. Consequently, Badler insisted that Shuman sign a document releasing Badler from any liability related to the management of Foremost's finances. Shuman refused. Four days after the sale, Badler processed the payroll for Web Corp., but not for Foremost. Badler refused to process Foremost's payroll until Shuman signed the release. On the morning of August 5, there was a heated argument between Badler and Shuman in Badler's office. Shuman stormed out, but returned later in the day armed with a nine millimeter Beretta semiautomatic pistol.

Confronted by an armed Shuman, Badler had the presence of mind to call Helen Anderson, his human resources manager, to his office door to witness the gun. Badler instructed Anderson to dial 911 if Shuman did not put the weapon away.

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“Shuman told Anderson, ‘Don't worry. I won't hurt you,’ and put the gun away.” Commonwealth v. Shuman, 445 Mass. 268, 836 N.E.2d 1085, 1088 (2005). As Anderson was leaving the room, Shuman accused Badler of ruining his business and his life. Then, Shuman opened fire on Badler striking him in the eye, neck, upper chest, and thumb. As Shuman left Badler's office he told two stunned employees, “Don't worry. I'm not going to shoot you two. I'm not upset with you.” Id.

After shooting Badler, Shuman drove to Librot's office. He fired as he entered, striking Librot in the head, neck, and chest. With weapon in hand, Shuman left the building and drove away. Both victims died. Minutes after leaving Librot's office, Shuman arrived at his parents' home and told his mother that he had killed two people. Distraught, Shuman raised the gun to his head. His mother begged him not to shoot himself. Eventually, Shuman did put the weapon away and his parents drove him to the police station.

At trial, friends and family testified that beginning in January 1997, they started to notice changes in Shuman's personality. He was unable to sleep, “seemed depressed, lost weight, and on one occasion, held a gun to his head.” Id. In fact, in mid-July of 1997, Shuman's family physician, Dr. Warshaw, treated Shuman for the first time with a small dosage of an antidepressant known as Elavil.² Concerned about the possibility of worsening depression, Dr. Warshaw referred Shuman to a specialist, psychiatrist George Gardos.

Dr. Gardos saw Shuman one week before the shootings. Dr. Gardos diagnosed depression, but discerning no psychosis, saw no need for hospitalization. Furthermore, he did not believe Shuman was a risk of harm to himself or others. Dr. Gardos increased Shuman's preexisting Elavil dosage and prescribed Zoloft, a “mood elevator.” Dr. Gardos testified that he was not aware of any “significant or commonly occurring interaction between hypoglycemia, diabetes and Zoloft.”

On September 18, 1998 and October 13, 1998, psychiatrist and defense expert Dr. Bursztajn evaluated Shuman for criminal responsibility. Dr. Bursztajn opined that at the time Shuman opened fire, he “was suffering from a major depression, with anxiety which reached psychotic dimensions,” as well as paranoia and delusions. According to his testimony, Shuman's diabetes exacerbated his depression, and his consumption of Elavil and Zoloft magnified its symptoms. Dr. Bursztajn also testified about the risk of “amplified depression” arising from the medicine Shuman was taking for hypertension. In particular, Dr. Bursztajn posited that Elavil in combination with Zoloft can give rise to agitation and compulsive behavior which is irrational but organized. He also testified that “the side effects come right away,” particularly in patients suffering from diabetes. Dr. Bursztajn's testimony was consistent with Shuman's theory of the case: in defense counsel's opening statement, he described Shuman as an individual “in a state of depression” who had been “crank[ed] ... up on Zoloft.”

The prosecution called as its expert Dr. Michael Annunziata, a forensic psychiatrist. After spending twelve hours with Shuman, Dr. Annunziata testified he observed no evidence of a marked mood disorder, intellectual impairment, psychotic or delusional disorder, or major depression.

In an attempt to lessen the blow of Dr. Annunziata's testimony regarding this lack of evidence, Shuman's counsel, on cross-examination, asked Dr. Annunziata whether

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the use of Zoloft, in combination with diabetes medication, could cause any side effects, specifically, enhanced aggression. Dr. Annunziata replied that, “[a]ll of the medical [sic] and the combination of medications can cause medical complications. I don't think that you're going to find that the ... effects result in what you refer to as a fixed delusional system.” As a follow-up question, counsel asked Dr. Annunziata whether there are any warnings that Zoloft may cause enhanced aggression. Dr. Annunziata testified that “there's a warning on every drug about almost everything.” When asked by defense counsel to specifically address Zoloft, Dr. Annunziata replied that, “[l]ike many drugs there's a list of hundreds—dozens and hundreds of possible side...