Commonwealth v. Merry

Decision Date16 April 2009
Docket NumberSJC-10250
Citation904 N.E.2d 413,453 Mass. 653
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Neil Rossman, Swampscott (Carlene A. Pennell with him) for the defendant.

Paul B. Linn, Assistant District Attorney (Nicholas J. Walsh, Assistant District Attorney, with him) for the Commonwealth.



This case is before us on a reservation and report from a single justice of this court. The defendant was convicted by a District Court jury of negligent vehicular homicide in violation of G.L. 90, § 24G (b).1 His motion for a new trial was allowed because the trial judge found that the Commonwealth failed to disclose material exculpatory evidence.2 The defendant asserts that the prohibition against double jeopardy bars his retrial because there was insufficient evidence at his original trial to establish that he was negligently operating the vehicle.3 In addition, the defendant claims that the prosecutor intentionally withheld exculpatory evidence, that numerous statements in the prosecutor's closing argument were improper, and that the prosecutor's actions represent misconduct sufficiently egregious to warrant dismissal apart from the question of the sufficiency of the evidence.

The Commonwealth's theory at trial was that the accident was caused by the defendant's negligence in speeding, crossing a double yellow line, and driving into the victim's automobile. The defense was that the accident occurred because the defendant was in the throes of a seizure, and was not able to control his vehicle at that time.4 The defendant claims that there was insufficient evidence of operation or negligence to sustain a conviction under Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). We conclude that there was sufficient evidence for a jury to have convicted the defendant of negligent vehicular homicide, and that there was no misconduct warranting dismissal, but that the failure to produce exculpatory evidence requires a new trial. We therefore affirm the judge's order that the defendant be retried.

1. Background and evidence at trial. The accident at issue occurred in Essex County and the defendant was tried in that county. However, due to a potential conflict of interest because the defendant was a Beverly police officer, a Suffolk County assistant district attorney was assigned to the case shortly after the complaint issued, and it was he who prosecuted the case in Essex County.

We summarize the evidence at trial, in the light most favorable to the Commonwealth, focusing on evidence relevant to the defendant's attack on the sufficiency of the Commonwealth's case.5 On the morning of January 20, 2007, the defendant, a forty year old male, began work and, according to all of the Beverly police officers who encountered him that morning, acted normally. At approximately 9:20 A.M., the defendant stopped at a convenience store and purchased a large orange soda, which he placed in a cup holder in his police cruiser.6 A few minutes later, after the defendant left the store parking lot and headed up a hill on Cabot Street, his cruiser accelerated rapidly. The cruiser traveled 474 to 526 feet during the eleven seconds before the accident and then crashed into the side of a parked car, killing Bonney Burns, the car's sole occupant.

Police Sergeant Deborah Ryan, the Commonwealth's accident reconstruction expert, concluded that the defendant's cruiser was traveling fifty-two to fifty-five miles per hour at the time of the impact, on a street with a speed limit of thirty miles per hour. Data from the power control module (PCM) (a monitoring computer) in the defendant's cruiser revealed that the accelerator was almost fully depressed throughout the 11.4 seconds prior to the collision and that the engine throttle was open as far as possible. In addition, during the first 3.4 seconds of the incident, the brake pedal was touched lightly. During the final eight seconds prior to the crash, there was no evidence that the brakes were used and no evidence that the antilock brake mechanism engaged. Based on her analysis of gouge marks in the road and computer reconstruction of the forces involved, Ryan concluded that the vehicles moved significantly after the impact. She opined that the defendant's cruiser rotated counterclockwise before the vehicles arrived at their final positions (the left front portion of the defendant's cruiser facing the left side portion of the victim's car).

There was no indication that the cruiser had any mechanical problems and no evidence of skid marks on the road or of evasive action prior to the collision. According to Ryan, the cruiser had failed to negotiate a curve in the road on Cabot Street and had driven straight into the victim's parked car. She could determine no cause for the accident. Ryan testified also that, of the 200 serious or fatal accidents which she had investigated, she had never seen an accident where some evasive action was not taken at the last minute unless the driver was intoxicated, was attempting to commit suicide, or had fallen asleep. Here, however, Ryan stated that the defendant had not ingested alcohol or drugs, and there was no evidence that he intended suicide. Moreover, Ryan testified that in cases where a driver falls asleep, the pressure on the accelerator decreases, in contrast to the continued pressure on the accelerator in this case. The defendant made no radio calls or cellular telephone calls while in his cruiser on the morning of the accident, and did not use the onboard computer. There was no evidence that he was drinking the orange soda.

One witness, Frederick Kelsey, testified that no one was driving the cruiser when it drove past him as he was walking on Cabot Street. He saw the cruiser accelerate past him and fail to negotiate the curve on Cabot Street before driving straight into the victim's car. He was twenty to thirty feet from the two vehicles when the collision occurred. Another witness, Heather Swan, a neighbor of the victim, was driving northbound on Cabot Street at the time of the accident. She saw the defendant's cruiser traveling quickly up Cabot Street in the right hand lane. It made a "very sharp, quick" "[almost] 90 [degree]" turn to the left immediately before crashing into the victim's car, as though the driver were trying to avoid something in the road. A third witness, Amy Munoz, was driving south on Cabot Street when the accident occurred. Munoz testified that the cruiser "turn[ed] very quickly," making a sharp, "abrupt" left turn, almost a U-turn, immediately before it hit the victim's car. Neither Munoz nor Swan indicated whether they saw someone driving the defendant's cruiser.

Munoz, Swan, and Kelsey approached the cruiser immediately after the accident. Munoz and Kelsey testified that the defendant was slumped over on the passenger side of the seat, with his feet behind the wheel on the driver's side.7 The defendant was unconscious and his breathing was heavy and labored. The first police officer to arrive on the scene found the defendant in similar circumstances; the defendant was unresponsive to his name, bleeding from his nose and mouth, and drooling.

Several other police officers responded to the accident. They noticed that the defendant, who was still lying across the passenger seat, had cuts on his face and bruising on one eye. Several officers observed that the defendant was experiencing increased difficulty breathing and was turning blue. Two officers attempted to administer oxygen to the defendant. The defendant appeared to be irritated by the oxygen on his face and began moving around on the seat and pushing one of the officer's hands away in an attempt to avoid the mask. The officers were finally able to place the oxygen mask on the defendant's face after they moved him to a sitting or semi-sitting position.

Paramedics arrived, removed the defendant from the cruiser through the driver's door, and transported him to the hospital in an ambulance. The defendant was not cooperative with the paramedics' efforts to remove him from the vehicle, nor was he cooperative in the ambulance. He was rolling around and attempting to sit up or to hold his head. He was not responsive to commands and did not respond appropriately to questions.

Blood and saliva were found on the passenger seat of the defendant's cruiser. A few drops of blood and saliva were found on the driver's side airbag. Blood was also discovered on the onboard laptop computer stand. Tests later confirmed that the blood was the defendant's. In addition, the windshield on the driver's side was observed to be damaged; the damage to the windshield was emphasized in the prosecutor's closing argument and has become a point of contention on appeal.

At the hospital, the defendant was found to be suffering from a concussion; abrasions on his knees and ankles; superficial cuts on his hands; and swelling and a laceration above the right eyelid. However, a computer tomography (CT) scan revealed no abnormalities and no indication of a seizure. Blood tests established that the defendant had not consumed alcohol or drugs. He had no medical history of seizures, fainting, or blackouts, and no cause for a seizure could be found.8

As stated, the defendant contended that he had suffered a seizure which caused the accident, and testified that he could not remember anything about the accident from the time he started heading up the hill on Cabot Street until he woke up in the emergency room. The defendant's accident reconstruction expert, Gerard Murphy, testified essentially to the same facts as those related by the Commonwealth's expert. The defendant also called a neurologist, Dr. James Lehrich, who testified about seizures and that a seizure most probably caused the accident.

After the close of the defendant's case,...

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