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Commonwealth v. Daly

Appeals Court of Massachusetts, Norfolk

August 18, 2016


          Heard: October 2, 2015.

         Complaint received and sworn to in the Quincy Division of the District Court Department on February 23, 2011.

         The 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.

          Tracey A. Cusick, Assistant District Attorney, for the Commonwealth.

          Present: Katzmann, Grainger, & Maldonado, JJ.

          MALDONADO, J.

         The 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.


         The 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.

         According 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.

         About 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."

         Cummins 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.

         Later 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."

         Adams 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 crying.

         The 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.

         Discussion. 1.

         Constitutionality of G. L. c. 272, § 77.

         The 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".[1] 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 common ...

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