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12-P-1811                                               Appeals Court

                   COMMONWEALTH   vs.   PATRICK DALY.


                            No. 12-P-1811.

        Norfolk.        October 2, 2015. - August 18, 2016.

            Present:   Katzmann, Grainger, & Maldonado, JJ.


Animal. Dog. Constitutional Law, Vagueness of statute,
     Assistance of counsel. Due Process of Law, Vagueness of
     statute, Assistance of counsel. Evidence, Photograph.
     Practice, Criminal, Required finding, Instructions to jury,
     Assistance of counsel, New trial, Affirmative defense,
     Deliberation of jury. Defense of Others. Jury and Jurors.



     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.


    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
                                                                      2


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.

    Background.     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.
                                                                         3


    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
                                                                    4


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[alling] 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
                                                                   5


"kills" in addition to failing to define "unnecessary cruelty"

or "cruelly beat".1   Viewed in context and in conjunction with

the case law, see Commonwealth v. 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 intelligence will know its

meaning."   Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).

     The term "kills" appears in the portion of the statute that

punishes whoever "cruelly beats, mutilates or kills an animal."

Contrary to the premise upon which the defendant bases his

argument, the adverb "cruelly" in this phrase applies to each of

the subsequently listed verbs or elements of the crime.     See

Commonwealth v. Daley, 463 Mass. 620, 624 (2012).   See also

Flores-Figueroa v. United States, 556 U.S. 646, 647 (2009).

This interpretation comports with both grammatical tenets and a

commonsense statutory purpose by making clear that acts such as

branding a steer (mutilating without cruelty) or medically

putting an animal down (killing without cruelty), are not

criminalized.   Commonwealth v. Zone Book, Inc., 372 Mass. 366,

369 (1977) ("When a statute does not define its words we give

them their usual and accepted meanings, as long as these


     1
       In pertinent part, G. L. c. 272, § 77, as appearing in St.
1977, c. 921, § 2, provides: "Whoever . . . cruelly beats,
mutilates or kills an animal . . . shall be punished . . . ."
                                                                      6


meanings are consistent with the statutory purpose.")     Moreover,

the term "cruelty" has been explicated in our decisional law

since at least 1863, and requires the infliction of severe or

unnecessary pain upon an animal.     See Commonwealth v. Lufkin, 89

Mass. 579, 581 (1863); Commonwealth v. Magoon, 172 Mass 214, 216

(1898).   See also Commonwealth v. Zalesky, 74 Mass. App. Ct.

908, 909 (2009).   Accordingly, where, as here, the terms of the

statute are sufficiently defined so as to alert a pet owner that

he or she may not throw a dog on its leash onto a deck with

force enough to cause the animal to fall off the deck, twelve

feet to its death, we perceive no constitutional infirmity.

    2.    Excluded evidence.   The defendant contends the judge

improperly excluded from evidence, on the basis of its late

disclosure in violation of pretrial discovery orders, the

following evidence:   (a) photograph of Jaime's hand after the

incident; (b) testimony from the defendant's landlord that on

several recent occasions prior to the crime, the dog had bitten

him, his daughter, and his granddaughter; and (c) testimony from

the landlord that the police refused to listen to his account of

what occurred immediately after the incident.

    Trial judges possess wide discretion to determine

appropriate sanctions for discovery violations.     Commonwealth v.

Carney, 458 Mass. 418, 429 (2010).    "[T]he purpose of such

sanctions must be remedial, not punitive."     Ibid.   Once a judge
                                                                    7


determines that a defendant has violated a discovery order, "it

is incumbent on the judge to fashion an appropriate remedy."

Commonwealth v. Reynolds, 429 Mass. 388, 398 (1999).   The judge

must balance enforcement of the discovery rules against the

defendant's right to present a defense.   Ibid.   Before imposing

the severest sanction of preclusion of the late disclosed

evidence (which the judge did here), the judge must make clear

that she has considered (1) the prevention of unfair surprise;

(2) evidence of bad faith in violation of the discovery order;

(3) prejudice to the other party caused by the admission of the

late disclosed evidence; (4) the effectiveness of less severe

sanctions and (5) the materiality of the evidence to the case.

Ibid.

     It is clear from this record that in making her ruling, the

judge emphasized the element of unfair surprise, remarking that

such late disclosure was "unfair" to the Commonwealth and

tantamount to trial by "ambush."   It is less clear whether she

took into consideration the several other required factors.

Assuming, without deciding, that the judge erred in excluding

the evidence without engaging in the proper balancing test, we

nevertheless conclude that the defendant was not prejudiced.

     It was not disputed at trial that the dog bit Jaime.

Neither was the nature of the injury in dispute, which by all

accounts was a minor cut and required no more than a small band-
                                                                        8


aid.    A photograph depicting a band-aid on what would appear to

be a minor injury would likely have only emphasized the

insignificant nature of the injury and would have done nothing

to bolster the defendant's theory of defense, i.e., that he was

justified in coming to the aid of his daughter against the dog's

attack.

       We also see no prejudice arising from the exclusion of the

testimony concerning the dog's prior bites on the landlord and

his family.       The dog's history of biting had no bearing on the

defendant's intent or state of mind and, therefore, was

excludable.        Furthermore, even if the history was relevant, the

landlord's anticipated testimony on this subject would have been

cumulative because Cummins had testified to the dog's history of

biting.       See Commonwealth v. Smith, 460 Mass. 385, 398 (2011)

(exclusion of cumulative evidence rarely prejudicial error).

       As to the evidence of what happened after the dog's demise,

the defendant has failed to show how that evidence bore on the

only contested issue in the case, namely, whether he was

justified in grabbing and throwing an eight pound dog onto the

deck.       Concluding that independent of any discovery violations,

the proffered evidence was either excludable or weak, we fail to

see that the defendant was prejudiced by the judge's ruling.

       3.    Photograph of deceased dog.   We also see no merit to

the defendant's claim that the judge should have excluded the
                                                                   9


single photograph of the deceased dog in a plastic bin.     The

photograph tended to show the size of the animal and the fact of

its death (which was relevant to disproving justification and to

proving the use of excessive force).    See Commonwealth v. Ramos,

406 Mass. 397, 407 (1990), quoting from Commonwealth v. Bys, 370

Mass. 350, 358 (1976) ("[I]f the photographs possess evidential

value on a material matter, they are not rendered inadmissible

solely because they are gruesome or may have an inflammatory

effect on the jury").

    4.   Motion for a required finding.    The defendant argues

that the Commonwealth failed to disprove that the defendant's

actions were justified to protect his daughter.   See

Commonwealth v. Cabral, 443 Mass. 171, 179-180 (2005).    Assuming

that the defendant was entitled to rely on the defense of

another, the defense requires the Commonwealth disprove that

"(a) a reasonable person in the actor's position would believe

his intervention to be necessary for the protection of the third

person, and (b) in the circumstances as that reasonable person

would believe them to be, the third person would be justified in

using such force to protect himself."    Commonwealth v. Martin,

369 Mass. 640, 649 (1976).   "The reasonableness of the belief

may depend in part on the relationships among the persons

involved . . . .   The actor's justification is lost if he uses
                                                                     10


excessive force, e.g., aggressive or deadly force unwarranted

for the protective purpose."   Ibid.2

     Under the familiar standard set forth in Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979), we review the evidence

in the light most favorable to the Commonwealth.      Here, the

evidence showed that the defendant had control of the eight

pound dog before he threw the dog onto the deck.      Even the

defendant admitted that he was holding onto the leash with the

dog before he threw him.   Once the defendant had obtained

control of the small animal, any justification to act in a

manner that would inflict further pain on the dog evaporated and

sustained the Commonwealth's burden to disprove the defense.

Commonwealth v. Martin, 369 Mass. at 649.   The motion was

properly denied.

     5.   Jury instructions and deliberations.   A.    Elements of

the crime.   The defendant argues that the following instruction

failed to properly instruct the jury on the parameters of

culpable conduct:



     2
       Factors such as the "relative physical capabilities of the
combatants, the characteristics of the weapons used, and the
availability of maneuver room in, or means of escape from, the
. . . area" are all factors the courts have considered in
assessing the reasonableness of a defendant's force. See
generally Commonwealth v. Kendrick, 351 Mass. App. 203, 212
(1996); Commonwealth v. Medina, 81 Mass. App. 525, 531-533
(2012).
                                                                   11


    "Whoever cruelly beats or kills, who -- whoever having the
    charge or custody of an animal either as an owner or
    otherwise, inflicts unnecessary cruelty upon it, shall be
    punished. In order to prove the defendant guilty, the
    Commonwealth must prove beyond a reasonable doubt that the
    defendant cruelly beat or killed the animal without
    justification, or the defendant had charge or custody of
    the animal either as an owner or otherwise, and the
    defendant inflicted unnecessary cruelty upon it. For the
    purposes of this law, to prove the defendant acted cruelly,
    the Commonwealth must prove beyond a reasonable doubt that
    the defendant committed acts that inflicted severe pain
    upon the animal without justification. The Commonwealth
    need not prove that the defendant intended the consequences
    of his acts, but it must prove beyond a reasonable doubt
    that the defendant intentionally and knowingly did the acts
    which were cruel."

    Unaided by a model instruction, the judge drew from the

statute and decisional law describing the offense.    The first

sentence of the instruction properly recites the relevant

portion of G. L. c. 272, § 77.   See note 1, supra.   Decisional

law has explicated this language, including that "[c]ruelty in

this context is severe pain inflicted upon an animal . . .

without any justifiable cause," language which the judge

incorporated in her second and third sentences.   Commonwealth v.

Zalesky, 74 Mass. App. Ct. at 909 (quotation omitted).

Decisional law has also made clear that proof of the offense

only requires that "the defendant intentionally and knowingly

did acts which were plainly of a nature to inflict unnecessary

pain."   See, e.g., Commonwealth v. Erickson, 74 Mass. App. Ct.

172, 177 (2009), cert. denied, 559 U.S. 1032 (2010);

Commonwealth v. Szewczyk, 89 Mass. App. Ct. 711, 716 (2016).
                                                                      12


Put differently, the defendant's guilt does not depend upon

whether he thought himself to have acted without justification,

but upon whether he did so in fact.     See Commonwealth v. Magoon,

172 Mass. at 216; Commonwealth v. Zalesky, 74 Mass. App. Ct. at

909; Commonwealth v. Linhares, 80 Mass. App. Ct. 819, 824

(2011).     The last sentence of the judge's instruction adds this

concept, namely, that the crime is one of general intent.

Commonwealth v. Erickson, supra at 176.     We see no error in the

instruction.     Contrary to the defendant's claim on appeal, the

judge did not leave key terms undefined.

       To the extent the defendant argues the judge should have

inserted the word "cruelly" before the word "beat" and again

before the word "killed" when instructing the jury, we disagree.

The word cruelly here modifies both verbs, as discussed, supra.

Moreover, even if common sense did not dictate such an

interpretation, immediately after the phrase "cruelly beat or

kill" the judge made clear that the killing must be without

justification, thus conveying precisely what is intended by the

use of the word cruelly.      See Commonwealth v. Zalesky, supra at

909.    There was no error.

       B.   Defense of another and excessive force.   The defendant

argues (somewhat confusingly) that he should have been permitted

to assert the justification defense stripped of any requirement

that justification be based on a claim of the defense of another
                                                                    13


with the accompanying limitation on the use of excessive force.

See, e.g., Commonwealth v. Martin, 369 Mass. at 649;

Commonwealth v. Arias, 84 Mass. App. Ct. 454, 465-468 (2013).

The trouble with this theory is that the term justification in

the criminal law is simply an overarching term for a group of

affirmative defenses, and among these defenses is the defense of

another.   See ,e.g., Commonwealth v. Martin, supra at 646-647;

Commonwealth v. Cabral, 443 Mass. at 178-179.     See generally

Model Penal Code § 3.01, et seq. (1985).    Thus, the defendant's

claim of justification in this case was identical to his claim

of defense of another.

    More importantly, the "label of affirmative defense does

not relieve the Commonwealth of its burden of proof," as the

defendant suggests.    Commonwealth v. Vives, 447 Mass. 537, 541

(2006).    Because the circumstances related to a defense of

justification are peculiarly within the knowledge of the

defendant -- in this case the defendant's explanation for

throwing the dog -- the defendant bears the burden of raising

the defense.   Commonwealth v. Cabral, 443 Mass. at 180-181.

Once raised, however, the Commonwealth must prove beyond a

reasonable doubt that the defendant was not legitimately

defending another.    Ibid.   This allocation of the burden of

proof does not run afoul of the constitutional mandate; that
                                                                   14


burden was correctly placed on the Commonwealth in this case.

Commonwealth v. Vives, supra at 541.

     The defendant also argues that the jury should not have

been instructed on the defense of another because it only

applies to defending another against an attack by a human being,

not an animal, which he claims is merely property.   While there

is no precedent in Massachusetts on this point, the same

rationale that resulted in the adoption of defense of another in

Massachusetts suggests that the law of the Commonwealth ought

not to "mark as criminal those who intervene forcibly to protect

others" from an attack by an animal, provided that excessive

force is not used.   See Commonwealth v. Martin, 369 Mass. at

648-649.3

     In any event, the defendant cannot be heard to complain

that the jury were improperly instructed on the defense of

another and the use of excessive force where the defendant

invited the instruction by claiming his actions were justified

by the need to protect his young daughter.   See Commonwealth v.

Knight, 37 Mass. App. Ct. 92, 99-100 & n.2 (1994) ("defendant on

appeal bears a heavy burden in attempting to have his conviction

     3
       There are other instances where legal principles have been
applied to protect animals. For example, courts have permitted
warrantless searches under the umbrella of the exiting emergency
aid exception to the warrant requirement in order to provide for
immediate assistance "to protect nonhuman animal life."
Commonwealth v. Duncan, 467 Mass. 746, 753 (2014).
                                                                      15


overturned" in case of invited error).      Absent the instruction,

the defendant would have been deprived of the main thrust of his

defense.4

     The defendant argues that the judge erred in instructing on

excessive force because the attack here was by an animal rather

than a person.    We need not answer the broader question whether

the excessive force limitation is applicable to all cases

involving a defense against an animal attack because under the

circumstances presented here, it was not inappropriate to give

the instruction.    The defendant still had the ability to present

his defense.5


     4
       We also see no merit to the defendant's assertion that the
burden of proof shifted onto him. The crime of animal cruelty
is a general intent crime. The Commonwealth was required to
prove that the defendant acted intentionally rather than
accidentally. His claim that he was justified to defend
another, as noted above, did not improperly shift the burden to
him. Commonwealth v. Erickson, supra at 176; Commonwealth v.
Vives, supra at 541.
     5
         The judge instructed as follows:

     "A person cannot lawfully use more force than necessary in
     the circumstances to defend one's self or another. How
     much force is necessary may vary with the situation and
     exactness is not always possible. You may consider whether
     the defendant had to decide how to respond quickly under
     pressure and the Commonwealth may prove that the defendant
     did not act in self-defense or the defense of another by
     proving beyond a reasonable doubt that the defendant used
     clearly excessive and unreasonable force. You may also
     consider any evidence about the relative size and strengths
     of the parties involved and where the incident took place
     among other evidence that you have before you. It is for
     you to decide based on all of the evidence, whether the
                                                                    16


    C.   Written and supplemental instructions.     We see no merit

to the defendant's claim that the judge erred when she did not

include among the written instructions she gave to the jury,

pursuant to their request, the instructions for direct and

circumstantial evidence.   Commonwealth v. Guy, 441 Mass. 96, 108

(2004) (no error where judge gave the jury a written outline of

the elements of the crime, over the defendant's objection).       Nor

is relief required because the judge gave a supplemental

instruction on excessive force, but did not remind the jury that

the instructions should be considered as a whole in conjunction

with the main charge.   Commonwealth v. Green, 55 Mass. App. Ct.

376, 383 n.8 (2002).

    D.   Jury deliberations.     At the end of the first day of

deliberations the jury reported to the judge that they could not

reach a verdict.   The judge determined that their deliberations

had not yet been due and thorough, and released them, asking

them to return the following morning.    That decision was well

within the judge's discretion.    See G. L. c. 234, § 34;

Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982).

When the jurors returned to court and resumed their

deliberations the following day, it appears that they wrote on



    defendant used excessive force." In large part this
    instruction is taken from Criminal Model Jury Instructions
    for use in the District Court, Instruction 9.260 (2009).
                                                                    17


the verdict slip that they could not come to a unanimous

decision, but then scratched that notation out and replaced it

with a finding of guilty, which they reported in open court.

We agree with the Commonwealth that the scratched endorsement on

the verdict slip is of no consequence given the unequivocal

verdict that the jury voiced on the record.   Commonwealth v.

Powers, 21 Mass. App. Ct. 570, 571, 574-575 (1986).

    6.   Ineffective assistance of counsel.   The defendant made

a claim of ineffective assistance of counsel in his motion for a

new trial.   The motion judge, who also had been the trial judge,

held an evidentiary hearing on the motion at which the

defendant's landlord, defense trial counsel, and the defendant

all testified.   The judge denied the motion, and as she presided

at trial, we afford her decision "special deference."

Commonwealth v. Pillai,   445 Mass. 175, 185 (2005), quoting from

Commonwealth v. Zagrodny,   443 Mass. 93, 103 (2004).

    The two-part test for ineffective assistance of counsel is

familiar, that is "whether there has been serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer -- and, if that is found, then,

typically, whether it has likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).     The motion
                                                                  18


judge determined that the claimed errors went to the issue of

the dog's viciousness as a justification for the defendant's

actions and concluded that any additional evidence on this issue

"would not have substantially aided the defense."

    Specifically, the defendant faults counsel for failing to

exclude testimony from the police officer that he "formed the

opinion that the dog was in fact thrown over the railing by the

defendant."   Assuming without deciding that counsel could have

successfully moved to exclude that opinion testimony, the error,

if any, did not deprive the defendant of an otherwise available,

substantial defense.   The testimony merely summarized what could

be fairly drawn from the uncontested evidence -- that is, that

the defendant threw the dog onto the deck with force enough to

cause its fall and resulting death.     Contrary to the defendant's

assertion, the prosecutor's summation comment that the defendant

"threw [the dog] off the balcony" was not based exclusively on

the officer's unchallenged statement.    The remark drew from a

far broader swath of evidence, and was fair argument based upon

the evidence.   See Commonwealth v. Kozec, 399 Mass. 514, 516

(1987); Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993).

    Nor was counsel ineffective in her belief, as attested to

at the motion hearing, that the photograph of Jaime's earlier

injury, which counsel chose not to introduce in evidence, would

have undercut the graphic testimony concerning the severity of
                                                                    19


that injury.   See Commonwealth v. Acevedo, 446 Mass. 435, 442

(2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728

(1978) (only tactical decisions "manifestly unreasonable when

made" and prejudicial are subject to relief).    Finally the

defendant's recasting of his arguments pertaining to the judge's

exclusion of the photograph of Jamie's hand after the incident

and the landlord's testimony fare no better as claims of

ineffective assistance of counsel.   See Commonwealth v.

Randolph, 438 Mass. 290, 295-296 (2002).    The judge did not err

in denying the motion.

                                     Judgment affirmed.

                                     Order denying motion for new
                                       trial affirmed.
