Commonwealth v. Waller , 90 Mass. App. Ct. 295 ( 2016 )

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15-P-928 Appeals Court
COMMONWEALTH vs. TASHA WALLER.
No. 15-P-928.
Essex. June 15, 2016. - September 20, 2016.
Present: Green, Rubin, & Sullivan, JJ.
Animal. Constitutional Law, Vagueness of statute. Due Process
of Law, Vagueness of statute. Evidence, Expert opinion,
Hearsay. Practice, Criminal, Required finding, Probation.
Search and Seizure, Probationer.
Complaint received and sworn to in the Lynn Division of the
District Court Department on April 16, 2013.
The case was heard by Cathleen E. Campbell, J.
Sarah M. Unger for the defendant.
Philip A. Mallard, Assistant District Attorney (Katelyn M.
Giliberti, Assistant District Attorney, with him) for the
Commonwealth.
RUBIN, J. The defendant was convicted under the animal
cruelty statute for starving to death her dog, Arthur, a
miniature dachshund. The finding of guilt is affirmed, as is
the condition of the defendant's probation prohibiting her from
2
owning "any pet or animal of any kind." Under settled law,
however, the condition of probation requiring the defendant to
submit to suspicionless inspections of her home requires
modification for which that aspect of the case will be remanded.
Facts. We recite the facts as they could have been found
by the judge, the fact finder in this bench trial, viewing the
evidence and all reasonable inferences therefrom in the light
most favorable to the Commonwealth.
1. Arthur. On the night of January 23, 2013, the
defendant brought Arthur to the Massachusetts Veterinary
Referral Hospital in Woburn. Arthur was nonresponsive and was
brought immediately to the treatment area for emergency care.
He was seen by Christina Valiant, an emergency care
veterinarian.
Dr. Valiant found Arthur in an extremely emaciated
condition. She testified that he was "very, very, very thin";
that "his bones were all visible through his skin"; and that "he
had no muscle mass." He had physical indications of prolonged
malnutrition: "a lot of the fur was rubbed away from the left
side of his body." Dr. Valiant also testified that Arthur "had
scabs over the left side of his body where the fur had been
rubbed away on the left side of his rib cage, on his elbow, on
his knee, . . . on [his] hip," on the "tip of his tail," and on
the "tip[s] of his ears." Dr. Valiant testified that scabs and
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"pressure sores" come from "laying on one particular part of the
body and not moving" because the "compression of the skin for a
long enough period of time" causes the skin "to necrose or die"
and "the sores result[]." The sores and scabs on Arthur
indicated that he "had been laying on the left side of his body
and not getting up and moving around and keeping himself off of
those areas." A blood test showed that he was dehydrated.
When Arthur arrived at the hospital he was "mostly dead"
and his vital signs were bleak: he was not moving at all, "not
breathing," "unresponsive to stimuli," "cold to the touch," and
"barely" had a heartbeat. Particularly concerning were his
"fixed [and] dilated pupils" and the absence of "a palpable
reflex" and a "corneal reflex," the latter absence being a sign
of brain stem damage. Arthur had no other "obvious
abnormalities." An "oral exam was normal" and there were no
discernible "abnormalities in his abdomen."
As soon as Dr. Valiant saw Arthur's condition, she and the
triage nurse started cardiopulmonary resuscitation (CPR); they
tried to revive him for about twenty minutes. In Dr. Valiant's
view at the time, "even if [she was] able to resuscitate him and
get him breathing again," she "didn't think that he was ever
going to regain consciousness."
After twenty minutes of CPR without response, the defendant
authorized euthanasia and Arthur was euthanized.
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2. The defendant's statements at the hospital. When Dr.
Valiant asked the defendant at the hospital what was going on
with Arthur and how long he had been as he was, she claimed that
he had "always been a thin dog," and that "she had noticed for
the last week or so that he had lost some more weight." The
defendant also said he "had been coughing for a week before" the
visit. She said that she had not "observed any vomiting,
diarrhea, or loose stools." She claimed that Arthur "hadn't
seemed quite right" the day before, and that he "was just sort
of laying there and staring . . . off into [the] distance." She
claimed that he "did eat and drink a little the day before," but
that day she "had been gone at work all day" and "when she came
home she found him just lying there." She mentioned that she
"had never brought [Arthur] to a veterinarian." Dr. Valiant
testified that while talking with her, the defendant "was fairly
calm" and "didn't seem terrifically upset about anything."
3. Dr. Valiant's opinion testimony. On direct
examination, the prosecutor asked Dr. Valiant to "estimate how
long it had taken for Arthur to get to that point." She
explained that in accordance with a "Colorado State" study from
the 1970s, it generally takes "approximately four to six weeks
of complete starvation" for a pet to develop "from an ideal body
condition to an emaciated body condition." Because Arthur was
so thin, Dr. Valiant believed he "had been like that for . . . a
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long time." She stated that Arthur "[a]bsolutely" would have
experienced pain, given his state. On cross-examination Dr.
Valiant testified that Arthur died of starvation. She testified
that there were no overt indications of other causes, and she
explicitly excluded some other possible causes of death. On
redirect, she opined that Arthur was "thin enough that you would
think that it was impossible for him to have gotten into that
condition in a period of a week's time," as the defendant had
told her.
4. The necropsy. Because Dr. Valiant disbelieved the
defendant's story, she preserved Arthur's body and contacted the
Massachusetts Society for the Prevention of Cruelty to Animals
(MSPCA). Martha Parkhurst, a sergeant in the law enforcement
department at the MSPCA, was assigned to the case and
interviewed the defendant. She learned that the defendant was
employed and described the defendant's apartment as "neat and
clean."
The defendant told Parkhurst that she had acquired Arthur
"a few years before," that her normal routine with him was to
feed him twice a day, and that she had not noticed his weight
loss until a couple of days before she took him to the
veterinarian. She said that Arthur "had been eating and
drinking normally and then lost a lot of weight all of a
sudden." However, she had not noticed the weight loss on
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January 20, when her son gave Arthur a bath, although she did
notice a sore on his elbow. According to the defendant, Arthur
had not eaten very much in the morning of January 23 and, when
the defendant came home, he was lying in his crate, did not eat
or drink, and needed help standing up.
Parkhurst took Arthur's body to Dr. Pamela Mouser at the
Angell Animal Medical Center and she conducted a necropsy. Dr.
Mouser testified that in cases of suspected neglect, a necropsy
includes a search for any underlying disease process that could
mimic the evidence of neglect. In cases of suspected
malnourishment, the necropsy focuses on whether the animal can
eat, whether there is any reason the animal was unable to absorb
nutrients through the gut, and whether the animal had diarrhea.
During the necropsy, the doctor looks for fat in the chest and
abdominal cavities, which are the places where the animal would
lose fat last, and at muscle mass, as the body will use muscle
for energy "once all of the [fat] is used up."
Dr. Mouser's necropsy report was introduced in evidence.
The report concluded that the "[g]ross findings, including
absence of body fat stores and marked loss of skeletal muscle
mass, support a diagnosis of emaciation . . . . An underlying
disease process which might have contributed to this marked loss
of condition, or which might have caused a rapid loss of
condition over a short period of time, is not identified. . . .
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The patient had partially-digested kibble within the stomach,
indicative of an ability to prehend and swallow food. In
addition, the colon contained soft-formed feces without evidence
of diarrhea." The report also stated that "[t]he inciting cause
of the skin wounds is not definitively determined. Given [that]
the majority of skin lesions are distributed on the left side,
pressure sores (as suspected clinically) from prolonged
recumbency on that side would have to be considered. Regardless
of the cause, all examined skin wounds have evidence of
bacterial infection."
Dr. Mouser opined that Arthur died of severe
malnourishment. She concluded that there was no other disease
that caused the emaciated state of Arthur's body. Arthur was
able to chew and swallow food and could eat if offered it.
Dr. Mouser concluded that this malnourishment was caused by
Arthur not getting enough food. She testified that if Arthur
was getting no food, it would have taken a matter of weeks for
him to get to the condition he was in at death, and that if he
was getting any food at all, it would have taken longer. She
opined that Arthur's sores would have been painful and that
Arthur would have suffered "the pain and the anxiety of being
hungry."
After a bench trial, the defendant was convicted of animal
cruelty, in violation of G. L. c. 272, § 77, as amended by
8
St. 1984, c. 50, which provides, in relevant part, that
"[w]hoever . . . deprives of necessary sustenance . . . or kills
an animal . . . ; and whoever, having the charge or custody of
an animal, either as owner or otherwise, inflicts unnecessary
cruelty upon it, or unnecessarily fails to provide it with
proper food, drink, shelter, sanitary environment, or protection
from the weather . . . shall be punished." She was sentenced to
two and one-half years in the house of correction, suspended for
five years, mandatory supervised probation, and 500 hours of
community service. As conditions of probation, she was not to
have "any pet or animal of any kind at any time during th[e]
probationary period" and her home was "to be open for mandatory
random inspections by [the] MSPCA and/or the probation
department." She now appeals.
Discussion. The defendant argues that the animal cruelty
statute under which she was convicted is unconstitutionally
vague; that the Commonwealth's expert witnesses, Drs. Valiant
and Mouser, gave improper testimony; that there was insufficient
evidence to support her conviction; that she may not as a
condition of probation be prohibited from owning animals; and
that the condition of probation allowing suspicionless searches
of her property must be modified. We address each argument in
turn.
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1. Vagueness of the word "animal." The defendant argues
that G. L. c. 272, § 77, is unconstitutionally vague because it
does not contain a definition of the word "animal."
This challenge is easily dispensed with. As the defendant
acknowledges, imprecision in a law's outer boundaries "does not
permit a facial attack on the entire law by one whose conduct
'falls squarely within the "hard core" of the [law's]
proscriptions.'" Chief of Police of Worcester v. Holden, 470
Mass. 845, 860 (2015), quoting from Commonwealth v. Orlando, 371
Mass. 732, 734 (1977). This rule applies with particular force
in cases, like this one, where any potential vagueness in the
outer boundaries of the law is not going to chill protected
expression. See Commonwealth v. Casey, 42 Mass. App. Ct. 512,
516 n.4 (1997), quoting from Commonwealth v. Adams, 389 Mass.
265, 271 (1983) ("[I]n evaluating a statute which does not
implicate First Amendment freedoms it is a well established
principle that vagueness challenges must be evaluated in light
of the facts of the case at hand").
We have no trouble concluding that dogs are animals within
the meaning of the word "animal," and within the meaning of that
word in the statute, and that protecting dogs comes within the
hard core of the law's prohibition on starving animals in one's
custody. Indeed, our appellate courts have previously upheld
convictions related to cruelty to dogs. See Commonwealth v.
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Erickson, 74 Mass. App. Ct. 172, 176-178 (2009); Commonwealth v.
Zalesky, 74 Mass. App. Ct. 908, 909 (2009). See also
Commonwealth v. Turner, 145 Mass. 296, 300 (1887) (captive fox
is an "animal" under earlier version of statute). The fact that
none of the animals was a miniature dachshund, a distinction
raised before us at oral argument, makes no difference. All
dogs are animals regardless of breed.
2. Expert testimony. The defendant contends that it was
improper for Dr. Valiant to estimate based on her training and
experience how long it had taken Arthur to reach the condition
he was in because the answer was speculative. In particular,
the defendant argues that it was error to permit Dr. Valiant to
testify that Arthur was "thin enough that you would think that
it was impossible for him to have gotten into that condition in
a period of a week's time[,] which [the defendant] told me" and
that he "had been like that for such a long time," because there
was no evidence of his body weight at any time prior to the
necropsy.
"A judge has broad discretion regarding the admission of
expert testimony, and we review that decision only for abuse of
discretion." Commonwealth v. Robinson, 449 Mass. 1, 5 (2007).
"The test [in deciding whether to admit expert testimony] is
whether the testimony 'will assist the trier of fact to
understand the evidence or to determine a fact in issue.'"
11
Commonwealth v. Torres, 469 Mass. 398, 406 (2014), quoting from
Mass. G. Evid. § 702 (2014). The defendant did not object to
these statements, and so we review for whether any error created
a substantial risk of a miscarriage of justice.
We think the testimony was properly admitted. Dr.
Valiant's opinion that "you would think that it was impossible
for [Arthur] to have gotten into that condition in a period of a
week's time[,] which [the defendant] told me" was not merely
speculation. Dr. Valiant testified that she observed Arthur at
the time of his death and concluded that "[h]e was in an
emaciated body condition." The defendant's account of the
events leading to Arthur's death was that he had been eating and
drinking normally and then suddenly lost weight and died over
the course of one week. It was not speculation for Dr. Valiant
to opine, essentially, that Arthur's condition at the time of
his death was inconsistent with a single week of malnourishment.
See id. at 407 ("An expert opinion that is not definitive but
expressed in terms of observations being 'consistent with' a
particular cause, or words of similar effect, does not render
the opinion inadmissible on the ground that it is 'speculative'"
[citation omitted]).
Dr. Valiant's opinion that Arthur "had been like that for
such a long time" was also not merely speculation. Dr. Valiant
already had testified that pressure sores, such as those she
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observed on Arthur, occur only "when there's compression of the
1
skin for a long enough period of time."
In addition, there was no risk that Dr. Valiant's opinions
misled the fact finder. At the time she expressed these
opinions, she already had made clear the limitations on her
ability to come to a precise conclusion. She acknowledged that
"[i]t's hard to estimate completely accurately [how long it had
taken for Arthur to get to the state he was in] because [she
had] never examined him before." In the circumstances, the
imprecision in her opinions because of factors unknown to her
1
This resolves the defendant's argument that the evidence
in the record was not sufficient to enable Dr. Valiant to give
an opinion that was not merely speculation. The defendant also
argues, citing Commonwealth v. Barbosa, 457 Mass. 773, 783
(2010), that the Commonwealth did not establish the other
foundational requirements for Dr. Valiant to give an expert
opinion on this subject, i.e., "that she was qualified as an
expert to answer how long it would have taken Arthur to become
emaciated, that her opinion was based on the type of data
reasonably relied on by experts, that the theory underlying her
opinion was reliable, or that she applied her theory to this
case in a reliable manner." As that very opinion states, ibid.,
"If, as here, there is no motion in limine and no invocation of
the judge's gatekeeper role [under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Commonwealth v.
Lanigan, 419 Mass. 15 (1994)]," -– and there was neither in this
case –- "the expert's opinion may be admitted in evidence." In
any event, given the substance of Dr. Valiant's testimony, the
fact that she was an emergency care veterinarian with roughly
ten years of experience at the time of trial, and that the
method by which she came to her conclusions was by examination
of Arthur before and after he died, we see no abuse of
discretion in the judge's admission of her testimony.
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goes to their weight, not their admissibility.2 Sacco v.
Roupenian, 409 Mass. 25, 29-30 (1990), quoting from Baker v.
Commercial Union Ins. Co., 382 Mass. 347, 351 (1981) ("So long
as the facts on which the doctor's opinion is based are in
evidence, '[t]he question whether the basis of the doctor's
opinion is sound goes to the weight of the evidence, not its
admissibility'").
The defendant also argues that the reference to the
Colorado State study was error, and we agree. An expert may
rely on inadmissible hearsay, but she may not testify to its
contents on direct examination. See Commonwealth v. Greineder,
464 Mass. 580, 584 (2013) ("In Massachusetts, we draw a
distinction between an expert's opinion on the one hand and the
hearsay information that formed the basis of the opinion on the
other, holding the former admissible and the latter
inadmissible"). See also Vassallo v. Baxter Healthcare Corp.,
428 Mass. 1, 16 (1998). Nonetheless, even assuming the claim of
error was preserved, we see no prejudice flowing from the
mention of this unnamed study.3 Given Dr. Valiant's credentials
2
We note that the defendant cross-examined Dr. Valiant
extensively about the bases for her opinions that Arthur had
been starved and had been malnourished for a long time.
3
Dr. Valiant mentioned the study in an answer to a question
that was proper. The defendant's objection to the question was
overruled. She did not move to strike the answer.
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and the other bases for her opinions that already had been
admitted in evidence, we do not think the strength of her
opinion turned on the precise study to which she referred.
The defendant next complains of Dr. Mouser's testimony, to
which she did not object, about how long it took Arthur to
become emaciated. She claims that without knowing Arthur's body
weight at some point before his death, any opinion by Dr. Mouser
was speculative. Dr. Mouser, however, made clear that the
precise length of time depended on body weight and that without
knowing it, and how much food Arthur was receiving, she could
only estimate. Nonetheless, that does not render her estimate
speculative. See Commonwealth v. Torres, 469 Mass. at 407.
Finally, the defendant complains that the unobjected-to
testimony opining that the defendant starved Arthur to death was
speculative and conjectural. But these were opinions of
veterinarians, one of whom examined Arthur, and one of whom
performed his necropsy. Both witnesses' opinions were based on
their observations of Arthur's body, their inquiries into other
possible causes, and their training and experience. Their
opinions were adequately supported.
3. Sufficiency of the evidence. In her last challenge to
the finding the defendant argues that the evidence was
insufficient to support her conviction. She assumes she was
convicted under that branch of the statute prohibiting
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"unnecessarily fail[ing] to provide [the animal] with proper
food." Even assuming she is correct, there is no merit to her
claim. The inferences that support a conviction "need only be
reasonable and possible; [they] need not be necessary or
inescapable." Commonwealth v. Woods, 466 Mass. 707, 713 (2014),
quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989).
As to failure to provide food, the defendant posits other
possible ways Arthur might have starved, such as a disease that
made him unable to eat or a parasite. But there was sufficient
evidence from which the judge could have concluded that that is
not what happened. The judge was entitled to credit the expert
opinions that Arthur died from starvation, and not from any
underlying disease. These opinions were supported by evidence
that Arthur still was able to eat and to digest food at the time
of his death, and that a "vast majority" of other possible
causes of his condition had been ruled out.4 The defendant also
argues that any failure to feed Arthur may not have been
4
That Dr. Mouser testified that she eliminated the "vast
majority" of other possible causes but not all of them, and
stated that "[i]t is difficult to use the word 'all' in
pathology," does not, as the defendant claims, mean that no
rational fact finder could have found the defendant guilty
beyond a reasonable doubt. Finding guilt beyond a reasonable
doubt does not require absolute certainty. See Commonwealth v.
Mack, 423 Mass. 288, 291 (1996), quoting from Commonwealth v.
Webster, 5 Cush. 295, 320 (1850) ("This we take to be proof
beyond reasonable doubt; because if the law, which mostly
depends upon considerations of a moral nature, should go further
than this, and require absolute certainty, it would exclude
circumstantial evidence altogether").
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unnecessary -- but in light of the defendant's own statements to
Dr. Valiant and the MSPCA investigator, the judge as the finder
of fact was entitled to conclude that it was.
4. Conditions of probation. The defendant complains about
two conditions of her probation. First, she argues that the
prohibition on having "a pet or animal of any kind" during her
probation violates her fundamental constitutional right to own
property. See art. 1 of the Declaration of Rights of the
Massachusetts Constitution. We need not and do not decide in
this case whether there is a fundamental constitutional right to
possess or to care for an animal because so long as a condition
of probation bears a reasonable relationship to "the goals of
sentencing and probation," which include "rehabilitation of the
probationer," "protection of the public," "punishment,"
"deterrence," and "retribution," it is permissible even when it
impairs a fundamental constitutional right. Commonwealth v.
Pike, 428 Mass. 393, 403 (1998). Indeed, those convicted of
felonies are prohibited ever from owning a firearm
notwithstanding the constitutional right to bear arms protected
by the Second Amendment of the United States Constitution. See
18 U.S.C. § 922(g) (2012); District of Columbia v. Heller, 554
U.S. 570, 595 (2008). In light of the conduct underlying the
defendant's conviction, there is nothing improper about
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prohibiting her from having a pet or an animal of any kind as a
condition of her probation.
Finally, the defendant argues that the condition of
probation ordering that her home "be open for mandatory random
inspections by [the] MSPCA and/or the probation department"
violates her right to be secure from unreasonable searches under
art. 14 of the Declaration of Rights of the Massachusetts
Constitution. In particular, she argues that this condition
impermissibly authorizes searches of her home without reasonable
suspicion and without a warrant.
She is correct. Under art. 14, "a reduced level of
suspicion, such as 'reasonable suspicion,' will justify a search
of a probationer and her premises," but "any standard below
. . . reasonable suspicion" will not. Commonwealth v. LaFrance,
402 Mass. 789, 792, 793 (1988). In addition, a warrant still is
required for a search of a probationer's home, "barring the
appropriate application of a traditional exception to the
warrant requirement." Id. at 794. See Commonwealth v. Duncan,
467 Mass. 746, 747 (2014) ("[I]n appropriate circumstances,
animals, like humans, should be afforded the protection of the
emergency aid exception [to the warrant requirement]");
Commonwealth v. Moore, 473 Mass. 481, 487 (2016) ("This
interpretation [in LaFrance] remains the standard for
probationer searches under art. 14").
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The defendant's probationary conditions therefore must be
modified so that the defendant will be subject to searches by
the MSPCA and the probation department only upon reasonable
suspicion and only pursuant to a warrant or a traditional
exception to the warrant requirement.
Conclusion. The finding of guilt of animal cruelty is
affirmed. The condition of probation requiring the defendant to
submit to random inspections of her home is vacated, and the
case is remanded to the District Court for modification of that
probationary term consistent with this opinion. All other terms
and conditions of the defendant's sentence remain valid and
unchanged.
So ordered.