Commonwealth v. Alec Butler.

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

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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

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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

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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

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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.

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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).

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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.

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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

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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

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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.

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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.

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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

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(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

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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.

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