Commonwealth v. Kevin M. Boutet, Jr.

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-467

COMMONWEALTH

vs.

KEVIN M. BOUTET, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the District Court, the

defendant, Kevin M. Boutet, Jr., was convicted of violating an

abuse prevention order. He argues on appeal that the judge

erred in conducting the trial and suppression hearing

simultaneously, admitting evidence at trial that he had received

Miranda warnings, and denying his motion for a required finding

of not guilty. We affirm.

Background. On the evening of April 19, 2023, Tewksbury

police and fire department personnel responded to room 119 at

the Motel 6 regarding a potential overdose and suicide attempt.

There, various police officers observed and spoke with the

defendant who appeared "confused," but conscious, alert, and
responsive to questions. Officer Matthew O'Brien noticed a

half-empty bottle of melatonin on the nightstand, and the

defendant told him that he "took his regular dose." Emergency

medical services personnel on the scene indicated that the

defendant's blood pressure was "high" and "that he didn't seem

to be actively overdosing, but . . . he should be evaluated."

"At some point," the defendant's mother and sister arrived

at the scene and spoke with Officer O'Brien. The mother stated

that she came to the motel because the defendant's ex-girlfriend

(the plaintiff on the restraining order) had sent her

screenshots of text messages from the defendant in which he

indicated, inter alia, that "he was taking a bottle of

melatonin, [and] a bottle of Tylenol in an effort to kill

himself."1 Officer O'Brien believed that "there was serious risk

of harm" to the defendant, and that the defendant "wanted to

kill himself." Based on all of these circumstances, the

defendant was taken into protective custody for suspected drug

intake, put on a stretcher, and placed into an ambulance for

evaluation pursuant to G. L. c. 123, § 12.

While the defendant was inside the ambulance, Officer

O'Brien learned that the defendant's ex-girlfriend -- to whom

1 The screenshots were admitted in evidence as an exhibit at
trial. They included a text purportedly from the defendant that
read, in part, "See you on the other side[.]"

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the defendant had sent text messages -- had an active abuse

prevention order against the defendant, which included a "no

contact" provision. Officer O'Brien then provided Miranda

warnings to the defendant.2 The defendant indicated that he

wished to speak to an attorney before speaking further with

Officer O'Brien. Accordingly, Officer O'Brien left the

ambulance to allow him to do so. Officer Dylan Cuccio, however,

remained inside the ambulance, and observed the defendant unlock

his cell phone, open the "messages section," and "hold something

down and slide it, and then the top box for the text messages

just disappeared." "It appeared that [the defendant] had

deleted some sort of messages." Officer Cuccio further observed

the defendant "scroll down on his phone," but the defendant

"never attempted to make a phone call."

Approximately four to five minutes after leaving the

ambulance, Officer O'Brien returned, arrested the defendant for

violating the abuse prevention order, seized his cell phone, and

handcuffed him to the stretcher. The defendant was transported

to the hospital and taken to a private room in the emergency

department, accompanied by Officer Cuccio. Officer Cuccio did

not ask the defendant any questions. At some point, the

2 The printed card from which Officer O'Brien read the
defendant his Miranda rights was admitted as an exhibit at
trial.

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defendant asked how he could "get his phone back," and stated

that he wanted to provide the police "access to the phone so

that he could get it back." Officer Cuccio told the defendant

that he was "not obliged to talk to [Officer Cuccio] about the

case," and the defendant responded that he "just wanted to be

honest and truthful and to get his phone back." The defendant

next made various statements to Officer Cuccio, including an

admission that he had "texted" his ex-girlfriend.

At approximately 12:30 A.M., the defendant was discharged

from the hospital and transported to the Tewksbury Police

Department. During the booking process, Sergeant Michael

Newcomb provided Miranda warnings to the defendant. In

addition, Officer Cuccio informed Officer O'Brien of the

defendant's earlier statement at the hospital that he "wished to

give consent for [the officers] to examine his cell phone."

Officer O'Brien asked the defendant for consent to search the

cell phone, provided the defendant with a consent form, and read

it to him. The defendant "filled out [the] form," and signed

it.3 During the booking process, the defendant was observed to

be "very cooperative," coherent, responsive, and was not "overly

emotional" or "slurring his words." Officer O'Brien then

The consent form was introduced at trial and marked as an
3

exhibit.

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reviewed the text messages, which, among other things,

referenced a gun. Asked about the gun, the defendant stated

that "he was only saying that to elicit a reaction" from his ex-

girlfriend. He also stated to Sergeant Newcomb that "he did

send text messages to . . . [his ex-girlfriend]," and that he

"lied about trying to kill himself."

Discussion. The defendant's first and primary argument is

that the judge erred in combining the bench trial with the

hearing on the motion to suppress. He contends that the

"overlapping, intertwined proceedings flagrantly violated"

precedent holding that such proceedings should not be combined,

and that doing so compromised the judge's ability to apply rules

of evidence, apply burdens of proof, and evaluate the facts and

apply the law under differing legal standards. Where the

defendant not only did not object to the procedure, but

requested it, our review is limited to whether there was any

error, and if so, whether that error created a substantial risk

of a miscarriage of justice. See Commonwealth v. Alphas, 430

Mass. 8, 13 (1999).

We agree that the judge erred in combining the trial and

motion hearing, and that this practice should be eliminated.

See Commonwealth v. Healy, 452 Mass. 510, 516 (2008)

(discouraging District Court practice of consolidating bench

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trials with suppression hearings and stating that "the practice

should be eliminated"). Thus, we look to see whether the error

was so prejudicial as to create a substantial risk of a

miscarriage of justice. See id. at 514 (concluding that

preserved error stemming from combining bench trial and motion

to suppress was harmless beyond a reasonable doubt). Here, we

discern no such risk for various reasons.

First, as mentioned above, the defendant requested the

joint proceeding and had a strategic reason for doing so.4

Second, prior to allowing the request to combine the

proceedings, the judge conducted a thorough colloquy with the

defendant explaining the process. The judge also allowed trial

counsel to speak with the defendant and further explain the

process and evidentiary issues in "layman's terms" before

proceeding. Third, despite the purported confusion created by

the joint proceedings -- detailed in comprehensive fashion by

the defendant in his appellate brief -- the transcript reflects

that the judge repeatedly and deftly parsed and distinguished

trial evidence and procedures from suppression evidence and

4 Trial counsel for the defendant explained to the judge
that the defendant had been arraigned on a new case one week
earlier and held without bail, and thus bail was revoked in the
present case. Thus, it benefited the defendant to resolve the
present case forthwith, and then challenge his pretrial
detention, while still preserving additional rights via a motion
to suppress.

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procedures. Finally, we presume that the judge correctly

instructed himself on the law, and there is nothing in the

present record that suggests he did not do so. See Commonwealth

v. Watkins, 63 Mass. App. Ct. 69, 75 (2005) ("judges in jury-

waived trials are presumed to know and correctly apply the

law"). Accordingly, the defendant's claim is unavailing.

The defendant next argues that evidence of his receipt of

Miranda warnings was improperly admitted at trial. Here again,

there was no objection at trial to the admission of such

evidence and review is limited to whether there was any error,

and if so, whether that error created a substantial risk of a

miscarriage of justice. See Alphas, 430 Mass. at 13.

"[W]here the voluntariness of a statement is a live issue

at trial, the jury may hear evidence that a defendant was

informed of and understood his Miranda rights." Commonwealth v.

Toolan, 460 Mass. 452, 471 (2011). In the present case, the

defendant asserts that the "sole issue" at trial was the

voluntariness of his statements to the police. Thus, evidence

that a defendant was informed of and understood his Miranda

rights was relevant and admissible. Id. at 472 (Commonwealth

was entitled to present evidence defendant was informed of

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Miranda rights where defendant challenged voluntariness of

statements made in custody). There was no error.5

The defendant also argues that the Commonwealth presented

insufficient evidence to prove a violation of the abuse

prevention order because there was no evidence that he was the

person who sent the text messages to his ex-girlfriend. We

apply the familiar test to determine "whether, after viewing the

evidence in the light most favorable to the [Commonwealth], any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (emphasis omitted).

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979). "If, from the

evidence, conflicting inferences are possible, it is for the

jury to determine where the truth lies, for the weight and

5 The defendant also claims that the judge erred in allowing
evidence that after being given Miranda warnings, the defendant
invoked his right to counsel. The defendant did not object to
the admission of this evidence. We discern no error, much less
a substantial risk of a miscarriage of justice, where the
prosecutor did not use the defendant's invocation of his right
to counsel as evidence of his guilt or refer to the invocation
in his closing argument. See Commonwealth v. Martinez, 431
Mass. 168, 183-184 (2000) (testimony that defendant invoked
right to counsel permissible to explain abrupt end of interview,
so long as not used as evidence of defendant's guilt).
Furthermore, the evidence that the defendant violated the abuse
prevention order was strong and corroborated in myriad ways.
See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986)
("Where evidence of guilt is strong and one-sided, it is
generally concluded that no substantial risk exists of a
miscarriage of justice").

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credibility of the evidence is wholly within their province."

Commonwealth v. Lao, 443 Mass. 770, 779 (2005). See

Commonwealth v. Nelson, 370 Mass. 192, 203 (1976) (evidence need

not require jury to draw inference; sufficient that evidence

permits inference to be drawn).

Here, the defendant made multiple admissions to the effect

that he had sent the text messages to his ex-girlfriend. Those

text messages included a reference to the ex-girlfriend by her

first name and provided additional corroborating circumstances

regarding the putative overdosing incident that prompted law

enforcement to engage with the defendant. The content of the

screenshots of the text messages and the abuse prevention order6

provided further "confirming circumstances" to demonstrate that

the ex-girlfriend who reported the defendant's condition to the

defendant's mother, was the person named in the abuse prevention

order and recipient of the text messages from the defendant.

Commonwealth v. Lopez, 485 Mass. 471, 478 (2020). Therefore,

6 A copy of the abuse prevention order was admitted as an
exhibit at trial. As noted above, screenshots of the text
messages were also admitted as an exhibit at trial. See note 1,
supra.

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the evidence at trial was more than sufficient to survive a

motion for a required finding of not guilty.

Judgment affirmed.

By the Court (Massing,
Neyman & Wood, JJ.7),

Clerk

Entered: June 9, 2025.

7 The panelists are listed in order of seniority.

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