Heard: December 14, 2015.
received and sworn to in the Northampton Division of the
District Court Department on June 10, 2014.
case was heard by Jacklyn M. Connly, J.
P. Vincent for the defendant.
H. Townsend, Assistant District Attorney, for the
Present: Grainger, Hanlon, & Agnes, JJ.
jury-waived trial in the District Court, the defendant was
convicted of one count of cruelty to an animal in violation
of G. L. c. 272, § 77. He now appeals, arguing that the
judge erred in denying three of his eleven requests for
rulings of law, pursuant to Mass. R. Crim. P. 26, 378 Mass.
897 (1979) We affirm.
judge heard the following facts. Amy Lovell moved with her
partner and two children to a new home in Hatfield in
October, 2013; the family planned to farm. The farm was also
home to a cat, ten goats, approximately twenty-five chickens,
and a sheepdog named Kiera. On January 26, 2014, Lovell
noticed that Kiera, who had been tied with a nylon leash to
the woodshed in Lovell's yard, had chewed through the
leash and wandered off the property. Lovell and her
partner got in their truck to search for the dog; they found
her a short distance away standing uncharacteristically still
in the middle of the street in front of the defendant's
house. When they drove up, Lovell noticed the
dog was holding up her hind leg. Whereas, normally, she would
have jumped into the truck, this time, she had to be lifted
into the truck to be brought home. Once there, Lovell noticed
drops of blood on the kitchen floor and, when she looked
closer, she found a small, round hole in the dog's hind
leg with blood coming from it. The dog whined and tried to
lick the wound and was unable to walk.
next day, Lovell brought the dog to a veterinarian. An X-ray
showed a pellet lodged deep in the dog's left flank, very
close to the bone. The dog was returned to the veterinarian
two days later for surgery to remove the pellet; the doctor
halted the surgery after deciding that to continue would risk
further nerve damage. The veterinarian referred Lovell to a
surgeon. The surgeon also determined that surgery would be
too risky, and the pellet remained in the dog's leg. The
dog was given pain medication for about one week after the
visit. The surgeon opined that "even though the dog
wasn't complaining, I'm sure that it hurt from having
the pellet in the leg and from the surgery."
next week, Lovell kept the dog in the house, rather than
outside in the barn; the family brought her food to her
because "she was unable to walk. She remained [lying]
down for the next week." The dog showed "great
pain" and the injury was "very much bothering
her"; she was "up all night whining for days."
As a result of the injury, the dog has a permanent limp
although she can still perform her function of guarding the
defendant testified that, when he saw the dog in his yard for
the fourth time, he shot her with a .22 caliber air powered
pellet gun, from a distance of about fifty to sixty feet
away. He hit the dog with one shot exactly in the spot where
he aimed, in an attempt to "sting" her and scare
her from his yard. He did not call the town dog
officer. The defendant testified that, while
the dog was not aggressive in any way, he shot her in an
attempt to protect his wife, who suffered from multiple
sclerosis. He stated that, because of his wife's medical
condition, she has difficulty lifting her feet up and,
instead, slides her feet when she walks; if she lifts her
feet "it's just as likely she's going to fall to
one side or the other." The defendant had used a snow
blower to create paths in the snow so that his wife could
exercise, but he was concerned that dog feces on the paths
might make it difficult for her to do that; photographs of
feces in the defendant's yard were admitted in evidence.
The defendant's wife had fallen a number of times in the
time leading up to the incident, although there was no
evidence that any of her falls were related to dog feces. In
addition, at some point after the incident, the defendant
left a message on Lovell's telephone voicemail,
apologizing for shooting the dog and offering to pay the
close of evidence, the defendant submitted a written request
for rulings pursuant to Mass. R. Crim. P. 26. The judge
accepted rulings numbered one through eight, but denied
rulings numbered nine through eleven. At the end of the
trial, the judge found the defendant guilty, and ordered,
among other things, that the defendant be placed on
administrative probation and pay restitution for the cost of
the veterinarian expenses.