Heard: October 2, 2015.
received and sworn to in the Quincy Division of the District
Court Department on February 23, 2011.
case was tried before Diane E. Moriarty, J., and a motion for
a new trial was heard by her.
Danielle M. Wood for the defendant.
A. Cusick, Assistant District Attorney, for the Commonwealth.
Present: Katzmann, Grainger, & Maldonado, JJ.
defendant appeals from a conviction of animal cruelty,
following his jury trial in the Quincy District Court, and
from the denial of his motion for a new trial after an
evidentiary hearing. The defendant was sentenced to serve
from two to two and one-half years in the house of
correction, with one year committed and the balance suspended
for three years with probation. On appeal, the defendant
asserts that the judge (1) erred in denying his new trial
motion challenging the constitutionality of the animal
cruelty statute; (2) improperly excluded photographic and
testimonial evidence of the animal's aggressive behavior;
(3) erroneously admitted an unduly prejudicial photograph of
the deceased animal; (4) erred in denying his motion for a
required finding; (5) incorrectly instructed the jury; and
(6) erred in denying his new trial motion on the basis of
ineffective assistance of his trial counsel. We affirm.
defendant was living in a duplex in Braintree with his then
girl friend Joan Cummins, their four year old daughter,
Jamie, and Cummins's pet dog, a Chihuahua. The dog was
fourteen years old and weighed approximately eight pounds.
Cummins got him as a puppy for her now adult son.
to Cummins, the dog had been "snippy" since he was
a puppy. Once, when Jaime was only eighteen months old, she
was playing tug-of-war with the dog and he bit her face,
requiring that she obtain stiches. As a result of this
incident, Cummins agreed to crate the dog at night and
whenever else he became snippy with Jaime.
midday on November 9, 2010, the defendant and Cummins were in
the kitchen, and Jamie was alone with the dog in the living
room. Jamie grabbed the dog's leash, which was attached
to his collar. The dog barked, and Jamie cried out. The
defendant, who had a direct view of the two, got upset and
said "[the dog] bit [Jamie] again." According to
Cummins, the defendant then charged at the dog, who ran and
hid under the sofa. The defendant went after the dog. Cummins
tried to stop the defendant from grabbing the dog, but he got
hold of the dog's leash and took control of him. The
defendant "flung the dog out" the open sliding door
and onto the deck. Cummins became extremely upset; she was
crying. The defendant, in the meantime, stated repeatedly the
"dog bit her"; and "you like the dog better
than you do your kid."
searched for the dog, whom she did not see on the deck. The
deck is about twelve feet off the ground. Cummins descended
the deck stairs and saw the dog on the ground. He looked at
her, whimpered, cried, and then expired. Jamie told Cummins
the dog had bitten her. Cummins saw a cut on Jamie's
knuckle, and she put a band-aid on it.
that day, the defendant visited the police station to report
an altercation he had had with Cummins's adult son. He
spoke to Officer Bryan Adams. The defendant explained that
Cummins's son came to the duplex upon learning of the
dog's demise, and then fought with the defendant over the
dog's death. According to Adams, the defendant also told
him that when he observed the dog bite his daughter, he
simply "lost it"; he then chased the dog until he
could grab the dog. The defendant further admitted to
throwing the dog onto the deck and to the dog's
"f[ailing] down over the deck." The defendant
indicated that he looked out and "could see that the dog
had ran off into the woods, " and that he
"didn't see the dog after that."
accompanied the defendant to the duplex. Walking down the
driveway, Adams saw a young man sobbing over a bin containing
a small dead Chihuahua. While indicating toward the
defendant, the young man cried out he "killed my
dog." Adams went into the apartment. The defendant
remained outside with a police detective. In the apartment
Adams encountered Cummins, Jamie, and the landlord, Richard
Bottiglieri. Jamie showed no signs of trauma; she appeared
bewildered but was not crying. Cummins was visibly upset and
defendant testified at his trial. He attested to throwing the
dog onto the deck but asserted that he did it to protect his
daughter. He also denied telling Adams that he had "lost
it" or that he had seen the dog run into the woods.
of G. L. c. 272, § 77.
defendant asserts the animal cruelty statute is vague and
overbroad largely because it fails to define the term
"kills" in addition to failing to define
"unnecessary cruelty" or "cruelly
beat". Viewed in context and in conjunction with
the case law, see Commonwealthv. Campbell,
415 Mass. 697, 700 (1993), the statute is sufficiently
exacting. It sets forth a perhaps "imprecise, but
comprehensible normative standard so that [individuals] of