Julie Manganis
BEVERLY — Moments after Judge Matthew Nestor delivered his verdict finding Stuart Merry guilty of negligent vehicular homicide, Merry turned around to face the courtroom gallery, filled with fellow officers.
“Sorry,” Merry said.
“You have nothing to be sorry about, bro,” boomed the voice of one unidentified officer.
The mood in the Peabody District courtroom was grim yesterday as Merry, 42, of Beverly was sentenced to three years of probation, 200 hours of community service, a $1,000 fine and the loss of his driver’s license for 15 years — a verdict and sentence that effectively ends his law enforcement career.
Even prosecutor Nicholas Walsh acknowledged that prior to the crash, Merry was a longtime public servant, working first for the Environmental Police and then the Beverly Police Department before the Jan. 20, 2007 crash that killed Bonney Burns.
Burns, 61, of 361 Cabot St. was parked in front of her home that morning when Merry’s cruiser, going 55 miles per hour, careened into her car, crushing it against a retaining wall.
It was Merry’s second trial in the case, after a judge and then the Supreme Judicial Court set aside his earlier conviction over evidence that was not turned over to the defense before trial.
Nestor’s verdict came swiftly, less than 30 minutes after Walsh and defense lawyer Neil Rossman delivered closing arguments.
But if there were hopes for a definitive answer as to what happened inside Merry’s cruiser that morning, they remain unfulfilled.
Nestor said only that he believed that the prosecution had sustained its burden of proof in the case, showing that Merry was negligent and caused the crash.
Rossman had argued strenuously that all of the evidence points toward Merry suffering a seizure that rendered him incapable of controlling the car. He called any other explanation “inconceivable.”
“The only possible explanation for what occurred here, putting all of the evidence together, is that he suffered a tonic-clonic seizure,” Rossman said, referring to the type of seizure that would cause someone to become rigid.
That would explain why, Rossman argued, Merry’s foot was on the gas pedal, which was almost all the way to the floor, before the crash.
He pointed to Merry’s testimony that his orange soda tasted funny — something doctors described as a potential warning sign of a seizure. And he suggested that no one could be distracted for 11.4 seconds without realizing something was wrong as the car roared to 55 miles an hour.
And he referred to the new witness in the case, Henry Sullivan, who came forward after Merry’s first trial to say he had seen the cruiser stopped and idling in the middle of the street, between Cornerstone Liquors and what was then a Brooks Pharmacy. Rossman argued that Sullivan’s testimony bolstered the case for a seizure. He also noted a seizure documented two months after the crash, which was blamed on alcohol withdrawal.
But Walsh, the prosecutor, said Sullivan’s testimony calls into question Merry’s entire account.
Merry testified that he recalled going over the railroad tracks in Gloucester Crossing, then through the intersection of Cabot and Rantoul streets, looking right toward a liquor store and then left toward a strip mall. “He doesn’t mention stopping the car.”
The prosecutor pointed out that Merry’s cruiser had already negotiated a curve in the road before crossing the double yellow lines into the wrong lane. Had Merry been unconscious, Walsh argued, the car would have gone across the road as soon as he hit the curve.
And if Merry was rigid from a seizure, his foot locked onto the gas pedal, how is it that he would have fallen over at the same time, Walsh asked.
Walsh also noted the testimony of both medical experts in the case, who acknowledged that it is unusual, though not unheard of, for someone to suffer a first seizure at the age of 40. Most people with seizures start having them as children or in old age, the doctors testified.
He suggested that the symptoms shown by Merry were consistent with a concussion, the official diagnosis after the crash. In fact, he said, one of the symptoms described by the doctors, turning blue from lack of oxygen, would have occurred during the seizure itself, yet the first officer to see Merry, David Faustino, said Merry’s color looked normal.
Sentencing
In order to find Merry negligent, the judge had to first discount the seizure theory — case law in Massachusetts says that someone suffering a medical emergency cannot be found negligent. Then, he had to determine whether Merry acted as a reasonable person would in the same circumstances.
The judge was limited by law in the sentence he could impose — he was not allowed to exceed the sentence imposed after Merry’s first trial.
Nestor did reject a request by the prosecutor to drop the community service requirement, something Rossman had also asked, citing Merry’s lack of a license. Rossman said that inability to drive has rendered him “unemployable.”
The judge lifted only the requirement that Merry do the community service at a facility for brain injury patients. Nestor also gave Merry the option of performing additional community service instead of paying his $1,000 fine and his probation fees.
Rossman said that he was “bitterly disappointed” by the judge’s verdict.
“The Beverly Police Department continues to extend our deepest sympathies to family and friends of Bonney Burns,” Chief Mark Ray said in a prepared statement. “Officer Stuart Merry had a record of serving our community professionally and with compassion. This tragic event has rendered many victims.”
Merry’s employment status is now in the hands of Mayor Bill Scanlon. Merry has been on unpaid administrative leave since April of 2008.
Scanlon said the city will hold a hearing “in a matter of days” to determine whether Merry is fired.
“I would anticipate that we’ll sit down shortly and try to come to a conclusion on that,” Scanlon said.
State law does not automatically require the termination of a police officer convicted of a misdemeanor, according to City Solicitor Roy Gelineau.
Staff writer Paul Leighton contributed to this story.
