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Commonwealth v. Szewczyk

Appeals Court of Massachusetts, Hampshire

July 14, 2016


          Heard: December 14, 2015.

         Complaint received and sworn to in the Northampton Division of the District Court Department on June 10, 2014.

         The case was heard by Jacklyn M. Connly, J.

          Thomas P. Vincent for the defendant.

          Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

          Present: Grainger, Hanlon, & Agnes, JJ.

          HANLON, J.

         After a 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) [1]We affirm.


         The 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.[2] 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.[3] 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.

         The 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."

         For the 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 family's livestock.

         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.[4] 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 medical bills.

         At 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.

         D ...

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