NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1381
COMMONWEALTH
vs.
ALEC BUTLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant, Alec Butler, was
convicted of motor vehicle homicide by negligent operation,
G. L. c. 90, § 24G (b), for the killing of the victim, Richard
F. Sullivan, Jr. The defendant appeals, arguing that the
evidence was insufficient to prove that he operated his vehicle
negligently and the judge erred in allowing the Commonwealth's
request that she instruct herself on consciousness of guilt. We
affirm.
Background. Beginning at about 8:30 A.M. on August 5,
2019, both the defendant and the victim played in a charity golf
tournament. Over the course of five to six hours while golfing, the defendant drank several beers. At the golf tournament
awards ceremony, he drank another beer.
At about 6 P.M., the defendant and the victim went together
to a restaurant, where the defendant ate pizza and drank two
beers and a shot of whiskey. The defendant did not appear to be
intoxicated. At 7:09 P.M., the defendant and the victim left
the restaurant together. In the parking lot, they encountered a
mutual friend who was a retired Marlborough firefighter.
The defendant and the victim got into the defendant's gray
Mercedes-Benz sport utility vehicle (SUV), with the defendant
driving and the victim in the front passenger seat. The sun was
still out, it was bright and clear, and the roads were dry. The
defendant drove eastbound on Broadmeadow Street, where the speed
limit is thirty-five miles per hour. Traveling at about thirty-
seven miles per hour, the SUV passed the intersection of
Parmenter Street, after which Broadmeadow Street bends slightly.
At about 7:18 P.M., there was a loud crash, "like a bomb
went off." A woman who lived nearby ran toward the sound and
saw the SUV off the right side of Broadmeadow Street. The SUV
had traveled over several large rocks, some of which were about
the size of basketballs, and collided with a large tree. The
SUV had extensive body damage, its windows were shattered, and
its airbags had deployed. The defendant was in the driver's
2 seat and said, "What happened?" He started to get out of the
SUV, but the woman told him to wait for first responders. She
smelled gasoline, so she reached into the SUV and turned off the
ignition.
Within minutes, Trooper Jeffrey Hernandez arrived. When
the trooper approached the SUV, the defendant got out from the
driver's seat. He appeared to be "stunned and in a daze." He
had a cut on his forearm and a shoulder injury. The defendant
told Trooper Hernandez that there was another vehicle involved
in the collision. First responders did not see any other
vehicle leaving the scene.
In contrast, questioned by Marlborough police Lieutenant
Steven Lupien, the defendant said he did not know how the crash
occurred. He also said he did not know whether there was any
passenger in the SUV other than the victim, whose name the
defendant told to police.
First responders from the Marlborough fire department
arrived. In the front passenger seat, the victim was struggling
to breathe. A large boulder was blocking the front passenger
door of the SUV, making it difficult for paramedics to access
him. To extricate the victim, first responders cut the roof off
the SUV, put him on a backboard, and slid him out through the
3 driver's side. The victim was taken by ambulance to a hospital.
He died of multiple blunt force injuries caused by the crash.
The defendant was also taken by ambulance to a hospital.
En route, he told a paramedic that he was driving the SUV but
did not remember the crash. Asked what he was doing before the
crash, the defendant said that he and the victim were coming
"straight" from a golf tournament, and that he "was drinking
earlier in the day, but hadn't had a drink in a couple hours."
The paramedic inserted an intravenous tube into the defendant's
hand in anticipation of any further treatment at the hospital.
The defendant asked if the paramedic was going to draw the
defendant's blood; the paramedic said no. At 7:58 P.M., the
ambulance arrived at the hospital. Before the paramedics had
completed their administrative duties and left the hospital, the
defendant left the emergency room against medical advice and
without being treated for his injuries. Two days later, he went
to a different hospital for treatment.
Neither police nor first responders detected symptoms of
the defendant's intoxication. The SUV was towed to the
Marlborough police station. Inside it was a single crushed beer
can.
State police collision reconstructionist Lieutenant Daniel
J. Nicoloro documented evidence from the crash scene, examined
4 the SUV, and analyzed data from its event data recorder. There
was no evidence that weather or poor visibility contributed to
the crash. There were no defects in the roadway that
contributed to the crash, and no tire marks that would have
indicated that the SUV swerved to avoid an obstacle in the road.
The SUV had no mechanical defects that contributed to the crash;
its brakes and accelerator were functioning, and its tires were
in good shape. However, the SUV's undercarriage was
significantly dented and scraped from running over the rocks.
Embedded in the tree up to almost six feet off the ground were
glass fragments, including tinted glass from the SUV's sunroof.
The SUV's event data recorder showed that the defendant was
not wearing his seatbelt. Data revealed that five seconds
before the airbag control module activated, the SUV was
traveling at thirty-seven miles per hour. As the SUV drove over
the large rocks on the soft shoulder of Broadmeadow Street, it
decelerated by about sixteen miles per hour, causing the airbag
control module to activate. During those five seconds, the
brake was never applied and the accelerator was depressed
slightly. As the SUV continued, the brake was applied. Based
on his investigation, Lieutenant Nicoloro opined that the SUV
drove partway through the curve on Broadmeadow Street and then
continued straight off the side of the road and over several
5 large rocks, rotating side to side as it did so, and then
bounced, struck the tree, and fell back down on its wheels.
The judge found the defendant guilty of motor vehicle
homicide by negligent operation.1 The defendant appeals.
Discussion. 1. Sufficiency of the evidence. The
defendant argues that the judge erred in denying his motion for
a required finding of not guilty because the evidence was
insufficient to prove that he operated the SUV "negligently so
as to endanger human life or safety." See G. L. c. 90,
§ 24G (b).2 We review the evidence in the light most favorable
to the Commonwealth. See Commonwealth v. Njuguna, 495 Mass.
770, 771-772 (2025), citing Commonwealth v. Latimore, 378 Mass.
671, 677-678 (1979).
Negligence under G. L. c. 90, § 24G (b), is determined by
the same standard that is employed in tort law. Commonwealth v.
Teixeira, 95 Mass. App. Ct. 367, 369 (2019), quoting
Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 n.2 (2004).
"A finding of ordinary negligence is sufficient to establish a
1 The judge also found the defendant responsible for the civil infraction of failing to wear a seat belt, G. L. c. 90, § 13A. That finding was placed on file and is not before us.
2 The defendant does not contest the sufficiency of the proof that he operated the SUV on a public way and caused the death of the victim.
6 violation of the statute." Commonwealth v. Carlson, 447 Mass.
79, 85 (2006). Ordinary negligence "is the failure of a
responsible person, either by omission or by action, to exercise
that degree of care, vigilance and forethought which . . . the
person of ordinary caution and prudence ought to exercise under
the particular circumstances." Commonwealth v. Howe, 103 Mass.
App. Ct. 354, 358 (2023), quoting McGovern v. State Ethics
Comm'n, 96 Mass. App. Ct. 221, 232 n. 25 (2019). In the context
of motor vehicles, the Supreme Judicial Court has defined
negligence as the failure "to operate [an] automobile in a
reasonably careful and prudent manner." Remy v. MacDonald, 440
Mass. 675, 680 (2004), citing Buda v. Foley, 302 Mass. 411, 413
(1939).
To support a conviction of negligent operation, the
Commonwealth was required to prove that the defendant's
"conduct, taken as a whole, might have endangered the lives and
safety of the public." Teixeira, 95 Mass. App. Ct. at 370. See
Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015) (question
is whether defendant's driving had potential to cause danger to
public). Proof of the defendant's negligent operation of a
motor vehicle may "rest entirely on circumstantial evidence."
Howe, 103 Mass. App. Ct. at 358, quoting Commonwealth v.
Petersen, 67 Mass. App. Ct. 49, 52 (2006).
7 Perhaps most compellingly, the defendant's negligence was
shown by the evidence of his driving. Driving on a well-lit,
dry road, the defendant failed to negotiate a gradual bend and
drove his SUV off the road. See Commonwealth v. Reynolds, 67
Mass. App. Ct. 215, 219 (2006) (evidence that defendant "swerved
off the road at a point where it makes a gradual turn" added to
proof that she "showed signs of inattentiveness and lack of
control over her vehicle"). See also Commonwealth v. Campbell,
394 Mass. 77, 83 (1985) (evidence of negligent operation
included that "[t]he area was well-lit, the weather clear, and
the traffic normal"). The defendant drove for some distance
over rocks before striking the tree hard enough to cause
multiple blunt force injuries to the victim. Contrast Aucella
v. Commonwealth, 406 Mass. 415, 418-419 (1990) ("no evidence of
the level of care actually exercised by the driver," where car
struck pedestrians crossing unlighted highway). The defendant
caused extensive damage to the SUV and the tree. See Howe, 103
Mass. App. Ct. at 359 ("extensive damage" to defendant's car and
surroundings relevant to negligence).
Negligence was also shown by what the defendant did not do:
during the five seconds before the airbag control module
activated, he did not brake, although he did brake in the one
and one-half seconds before the SUV hit the tree. Cf.
8 Commonwealth v. Hardy, 482 Mass. 416, 424 (2019) (defendant's
failure to brake before collision showed "inattentiveness to the
road"); Reynolds, 67 Mass. App. Ct. at 219 (defendant struck
pedestrian "without having taken any evasive action, such as
applying her brakes"). The defendant attempts to distinguish
Hardy by arguing that in that case the defendant did not brake
at all, but here, the defendant did brake just before impact.
We are not persuaded. Evidence that the defendant braked
immediately before impact did not preclude a finding of
negligence based on his failure to brake during the five seconds
before the airbag control module activated. The judge could
credit the testimony of Lieutenant Nicoloro -- based on the data
from the event data recorder, the damage to the SUV's
undercarriage, and his inspection of the crash scene -- that
during those five seconds the brake was not applied and the SUV
was decelerating because it was driving over large rocks.
As evidence of negligence, the judge could also consider
the defendant's consumption of alcohol. "Although there was no
direct evidence of the defendant's impairment, there was
substantial direct evidence of his consumption of alcohol."
Commonwealth v. Morse, 468 Mass. 360, 378 (2014). The judge
could find that in the twelve hours before the crash, the
defendant had consumed many beers and a shot of whiskey, and
9 that he drank two of those beers and the shot within about an
hour before the crash. "Evidence that the defendant was
consuming alcohol prior to driving with passengers . . . is
patently relevant to whether the defendant exercised reasonable
care while driving." Commonwealth v. Woods, 414 Mass. 343, 350
(1993). The defendant argues that this case is distinguishable
from Woods, because here, "alcohol impairment played no role in
the accident." The argument is unavailing, because it fails to
consider the facts in the light most favorable to the
Commonwealth.
The defendant argues that the conviction amounted to
improper application of res ipsa loquitur in a criminal case
because it was based on conjecture about how the crash occurred.
See Aucella, 406 Mass. at 418 (where defendant struck
pedestrians and left scene, evidence insufficient to prove he
"was either negligently inattentive or driving in an otherwise
negligent manner"). On the contrary, "this was not a case where
the Commonwealth relied on 'the mere happening of [an] accident'
to prove negligent operation." Howe, 103 Mass. App. Ct. at 358-
359, quoting Commonwealth v. Angelo Todesca Corp., 446 Mass.
128, 144 (2006). After careful review of the evidence, we
conclude that it was sufficient to support a finding that the
10 defendant operated his SUV negligently so as to endanger human
life.
2. Consciousness of guilt. The defendant argues that the
judge erred in instructing herself on consciousness of guilt.
"An instruction on consciousness of guilt may be given where
'there is an "inference of guilt that may be drawn from evidence
of flight, concealment, or similar acts," such as false
statements to the police [or] destruction or concealment of
evidence.'" Commonwealth v. Morris, 465 Mass. 733, 737-738
(2013), quoting Commonwealth v. Stuckich, 450 Mass. 449, 453
(2008), quoting Commonwealth v. Toney, 385 Mass. 575, 584 & n.4
(1982).
After the close of evidence, the prosecutor asked the judge
to draw an inference of consciousness of guilt from evidence
including that the defendant asked if the paramedic would draw
his blood and later left the hospital soon after arriving,
without being treated, and against medical advice. The
prosecutor also contended that the judge could draw an inference
of consciousness of guilt from the defendant's father's
testimony that, from the hospital, the father telephoned a
lifelong friend who was a judge and who gave him the names of
two attorneys. In response, defense counsel argued that the
inference that the defendant had fled from the hospital was not
11 reasonable, based on his father's testimony that he spoke to a
police officer before leaving. Defense counsel also argued that
the defendant had no obligation to provide a blood sample.
The judge commented that she had reviewed Instruction 3.580
of the Criminal Model Jury Instructions for Use in the District
Court (2009). The judge noted that the model instruction stated
that when a request is made for a consciousness of guilt
instruction, "it [is] required when there is some evidence" of
consciousness of guilt. The judge explained, "I'm not saying
that I find that evidence at all to be compelling, but I am
going to consider it," and "I'm not saying . . . what I'm going
to do with it." The defendant objected to the judge's ruling,
but not to the language of the instruction.3 Cf. Commonwealth v.
Tu Trinh, 458 Mass. 776, 779 (2011) (defendant objected both to
giving consciousness of guilt instruction and its language).
3 Instruction 3.580 cautions that there may be numerous explanations, other than feelings of guilt, for why an innocent person might act suspiciously. See Toney, 385 Mass. at 585. In instructing a jury on consciousness of guilt, a judge must caution them "that they are not to convict a defendant on the basis of flight or concealment alone . . . and that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant." Id. at 585. The defendant has not argued, in the trial court or on appeal, that the judge's instruction to herself was inappropriately worded, and so we do not consider that issue.
12 Because the defendant preserved his objection to the ruling, we
consider whether it amounted to prejudicial error. Id.
We agree with the defendant that the trial prosecutor's
argument that consciousness of guilt could be inferred from the
father's telephone call to obtain a referral to an attorney
improperly impinged on the defendant's constitutional right to
counsel.4 Cf. Commonwealth v. Pytou Heang, 458 Mass. 827, 853
(2011) (risk that jury would improperly consider evidence that
defendant invoked right to counsel diminished by judge's
admonitions to jurors). However, we "apply a presumption that a
judge sitting in a jury-waived trial has instructed [her]self
properly on the law," Commonwealth v. Graziano, 96 Mass. App.
Ct. 601, 608 (2019), including "not [to] draw any negative
inference from the defendant's exercise of . . . his right to
counsel," Pytou Heang, supra. Accordingly, in assessing whether
there was a sufficient basis for a consciousness of guilt
instruction, we disregard the evidence of the father's telephone
call. We conclude that there was other evidence of the
defendant's consciousness of guilt sufficient to warrant the
instruction. See Commonwealth v. Addy, 79 Mass. App. Ct. 835,
4 On appeal, the Commonwealth concedes that the fact that the defendant sought counsel cannot support a consciousness of guilt instruction.
13 841-842 (2011) (judge improperly allowed Commonwealth's motion
to consider defendant's default on trial date as evidence of
consciousness of guilt, but error not prejudicial in
circumstances).
The trial prosecutor argued that the judge could consider
as evidence of "flight" that the defendant abruptly left the
emergency room without being treated after having asked the
paramedic if his blood would be taken. We consider that
evidence not so much as showing flight, but more accurately
showing the defendant's concealment of evidence, i.e., his blood
alcohol level. We note that the inference is strengthened by
evidence that two days later, the defendant sought treatment for
his injuries from a different hospital. See Commonwealth v.
Cole, 473 Mass. 317, 326 (2015) (evidence that defendant, using
false name, was treated for stab wound at hospital showed
consciousness of guilt).
There was other evidence before the judge, not mentioned by
the trial prosecutor in his consciousness of guilt argument,
that supported such an instruction. The judge could infer that
the defendant made false statements to police when he told
Trooper Hernandez that another vehicle was involved in the
collision, then told Lieutenant Lupien that he did not know how
the crash occurred. See Reynolds, 67 Mass. App. Ct. at 221
14 (false statements to medical personnel and police). The judge
could also infer that the defendant was attempting to conceal
evidence of his drinking alcohol when he told the paramedic that
he and the victim were coming "straight" from the golf
tournament and he "hadn't had a drink in a couple hours," even
though nine minutes before the crash, he left the restaurant
where, within about an hour, he had consumed two beers and a
shot of whiskey. See id. (false statements to medical personnel
and police about consumption of medication); Commonwealth v.
Geisler, 14 Mass. App. Ct. 268, 274 & n.7 (1982) (false
statements about whereabouts after crash). Based on that
evidence, it was within the judge's "sound discretion" to
consider consciousness of guilt even though the
15 prosecutor did not marshal those facts in his argument.
Commonwealth v. Simmons, 419 Mass. 426, 436 (1995).
Judgment affirmed.
By the Court (Shin, Grant & Hershfang, JJ.5),
Clerk
Entered: October 6, 2025.
5 The panelists are listed in order of seniority.