Commonwealth v. Russo ( 2023 )

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22-P-690 Appeals Court
COMMONWEALTH vs. MARYANN RUSSO.
No. 22-P-690.
Norfolk. March 8, 2023. – September 14, 2023.
Present: Massing, Hershfang, & D'Angelo, JJ.
Animal. Dog. Practice, Criminal, Dismissal. Probable Cause.
Statute, Construction.
Complaint received and sworn to in the Quincy Division of
the District Court Department on February 10, 2021.
A motion to dismiss was heard by John P. Stapleton, J.
Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.
Jason S. Bolio for the defendant.
HERSHFANG, J. This case asks us to determine whether a pet
owner who declined to follow a veterinarian's recommendation
that she euthanize her suffering, terminally ill dog may be
charged with animal cruelty under G. L. c. 272, § 77. Because
we conclude that the statute does not reach the defendant's
2
conduct, we affirm the District Court judge's order dismissing
the criminal complaint.
Background. "Our review of the judge's order of dismissal
is confined to the four corners of the application for
complaint," Commonwealth v. Brennan, 481 Mass. 146, 147 (2018),
quoting Commonwealth v. Ilya I., 470 Mass. 625, 626 (2015),
which here consists of the application and five "supplemental
narratives" by investigators. We summarize the information in a
light most favorable to the Commonwealth. See Brennan, supra at
149. On Christmas Day 2020, the defendant's family arrived at
an animal hospital with a fourteen year old dog with a large
mass on his side. The staff recommended that the dog have
surgery to remove the mass. Rather than authorize the surgery,
the defendant's family took the dog home. About three weeks
later, on the evening of January 13, 2021, the defendant and her
mother brought the dog back to the animal hospital.1 By this
point, the dog was anemic, unable to stand or walk, and
suffering from bed sores, and he had a necrotic mass on his side
as well as an open necrotic wound. The dog's breathing was
The narratives about the visits to the animal hospital on
1
December 25, and January 13 through January 14, speak of "the
owners" and "the Russos," without differentiating which acts
were performed by the defendant and which by other members of
her family. The complaint application establishes that the
defendant owned the dog, and she does not contest either her
ownership or her identity. We therefore assume that she was
properly named as the defendant.
3
labored. The veterinarian recommended humane euthanasia,
opining that there was no way to control the dog's "super
painful" condition. After leaving the dog at the animal
hospital overnight, the family requested the previously
recommended surgery to remove the mass. The veterinarian
declined, saying that the dog probably would not survive. The
defendant's family took the dog home, representing that a
different veterinarian would euthanize him.
Suspecting that the family would not have the dog
euthanized, the veterinarian reported the defendant to the
Animal Rescue League of Boston (ARL).2 The next day, the
defendant contacted the ARL's law enforcement hotline and
reported that the dog was in good health, eating, drinking, and
beginning to act normal again. The defendant explained that she
would not euthanize the dog because his health had improved and
provided a telephone number for return calls. Beginning that
day, and over the following weeks, the assigned ARL investigator
2 Veterinarians are obligated to report suspicions of animal
cruelty to "a police officer or special state police officer
appointed under section 57 of chapter 22C." G. L. c. 112,
§ 58B. General Laws c. 22C, § 57, authorizes the colonel of the
State police to appoint duly accredited agents of the ARL (among
others) as "special state police officers" with "the powers of
constables and police officers to arrest and detain any person
violating any law for the prevention of cruelty to animals." We
assume for purposes of this appeal that the ARL inspector was
duly appointed.
4
repeatedly tried to reach the defendant by telephone and at
home, leaving notices and messages, with no success.
On February 4, the ARL investigator returned to the
defendant's home and was admitted by her mother.3 The
investigator found the dog in the living room, lying on the
couch on a piece of linen and wearing a diaper. The dog was
still and stiff, taking periodic shallow breaths. He had raw
sores on his legs and appeared thin, with a distended belly.
When the investigator asked to see the mass, the defendant's
mother turned the dog on his other side, causing the dog to gasp
for air and exposing a large mass. In response to the
investigator's comment that the dog was suffering and needed
immediate medical attention, the defendant's mother displayed a
bag of pills, saying that they were the dog's pain pills but
that he no longer needed them. The family again declined to
euthanize the dog or get him medical attention; the defendant's
mother said that the dog would "die at home."4
3 Three family members were in the home, none of whom was
the defendant. The defendant's mother identified the defendant
as the dog's owner.
4 Though not included in the "four corners" of the complaint
and not relevant to our analysis, the record shows that the
investigator obtained a warrant, seized the dog, and had him
euthanized.
5
The defendant was charged with violating the animal cruelty
statute, G. L. c. 272, § 77, and she moved to dismiss the
complaint. The motion was allowed, and this appeal followed.
Discussion. 1. Standard of review. "In reviewing a
motion to dismiss a complaint, the judge must decide whether the
complaint application contains 'sufficient evidence to establish
the identity of the accused and . . . probable cause to arrest
[her].'" Commonwealth v. Humberto H., 466 Mass. 562, 565
(2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163
(1982). "This standard is 'considerably less exacting than a
requirement of sufficient evidence to warrant a guilty
finding.'" Brennan, 481 Mass. at 149, quoting Commonwealth v.
O'Dell, 392 Mass. 445, 451 (1984). "To establish probable
cause, the complaint application must set forth 'reasonably
trustworthy information sufficient to warrant a reasonable or
prudent person in believing that the defendant has committed the
offense.'" Humberto H., supra at 565, quoting Commonwealth v.
Roman, 414 Mass. 642, 643 (1993). "Whether the complaint
application establishes probable cause is a question of law;
thus, 'we review the motion judge's . . . determination de
novo.'" Brennan, supra, quoting Humberto H., supra at 566. "We
are in as good a position as a motion judge to assess the
evidence submitted in support of the application for a criminal
complaint, and we consider the evidence in the light most
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favorable to the Commonwealth without deference to the motion
judge's factual findings or legal conclusions." Brennan, supra.
2. Animal cruelty statute. "In every question of
statutory interpretation, we begin our analysis with the plain
language of the statute." Commonwealth v. Escobar, 490 Mass.
488, 493 (2022). It is a fundamental principle of statutory
interpretation that
"a statute must be interpreted according to the intent of
the Legislature ascertained from all its words construed by
the ordinary and approved usage of the language, considered
in connection with the cause of its enactment, the mischief
or imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers
may be effectuated."
Commonwealth v. Clinton, 491 Mass. 756, 766 (2023), quoting
Oracle USA, Inc. v Commissioner of Revenue, 487 Mass. 518, 522
(2021).
"[E]ach clause or phrase is to be construed with reference
to every other clause or phrase without giving undue
emphasis to any one group of words, so that, if reasonably
possible, all parts shall be construed as consistent with
each other so as to form a harmonious enactment effectual
to accomplish its manifest purpose."
Commonwealth v. Paul, 96 Mass. App. Ct. 263, 268-269 (2019),
quoting Selectmen of Topsfield v. State Racing Comm'n, 324 Mass.
309, 312-313 (1949). "[N]one of the words of a statute is to be
regarded as superfluous" (citation omitted). Commonwealth v.
Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass.
617, 618 (1967).
7
Against that analytical backdrop, we focus on the words
chosen by the Legislature. Most of the statute is devoted to
criminalizing specific acts of cruelty against animals. It
begins a long list of prohibited conduct with, "Whoever
overdrives, overloads, drives when overloaded, overworks,
tortures, torments, deprives of necessary sustenance, cruelly
beats, mutilates or kills an animal," and further criminalizes
the action of "us[ing] [an animal] in a cruel or inhuman manner
in a race, game, or contest, or in training therefor," or
"inflict[ing] unnecessary cruelty upon [an animal], or
unnecessarily fail[ing] to provide it with proper food, drink,
shelter, sanitary environment, or protection from the
weather . . . ." G. L. c. 272, § 77.
After these specific prohibitions comes the language at
issue in this case, which imposes criminal penalties on anyone
who, "having the charge or custody of an animal . . . knowingly
and willfully authorizes or permits it to be subjected to
unnecessary torture, suffering or cruelty . . . ." G. L.
c. 272, § 77. This language is distinct from the preceding
portion of the statute in at least two ways. First, it requires
a "knowing" and "willful" mental state to trigger liability.
See Commonwealth v. Erickson, 74 Mass. App. Ct. 172, 176 (2009),
cert. denied, 558 U.S. 1153 (2010) ("The heightened mental state
of 'knowing' and 'willful' conduct was included by the
8
Legislature only in two portions of G. L. c. 272, § 77, . . .
[including] where someone 'knowingly and willfully authorizes or
permits [an animal] to be subjected to unnecessary torture,
suffering, or cruelty . . .'").
Second, it criminalizes the conduct of one who has charge
of an animal but, rather than inflicting the harm directly, as
in the preceding proscriptions, "authorizes or permits" the
animal "to be subjected to" harm. G. L. c. 272, § 77. The
passive construction stands in stark contrast to the active
voice of the other verbs in the statute. Unlike those verbs,
"subjected to" identifies no actor. Yet there must be one. "I
was subjected to a grueling cross-examination" makes sense,
while "I was subjected to a herniated disc" does not. See The
American Heritage Book of English Usage 46 (1996) ("In the
passive voice . . . [t]he person or thing that is acted upon
becomes the subject, and the performer of the action gets put in
a prepositional phrase beginning with by or is omitted from the
sentence altogether"). "Subjected to" was added in 1868 and has
been included in all subsequent versions of the statute.5
5 See St. 1868, c. 212, § 2; St. 1869, c. 344, § 2; P.S.
(1882), c. 207, § 53; R.L. (1902), c. 212, § 70; G. L. c. 272,
§ 77. Tellingly, the 1869 revision struck a provision from the
1868 statute that criminalized the act of a custodian who
authorized or permitted an animal "to suffer unnecessary torture
or cruelty." In addition to striking the phrase "to suffer,"
the statute was revised to add "suffering" between "torture" and
"cruelty." St. 1869, c. 344, § 2. This change supports our
9
Because we "presume, as we must, that the Legislature
intended what the words of the statute say," Commonwealth v.
Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth v.
Young, 453 Mass. 707, 713 (2009), we accept that, by the
language at issue here, the Legislature deliberately chose to
criminalize only situations where someone (or something)
"subjected" the animal to the harm at issue. See, e.g.,
Commonwealth v. Turner, 145 Mass. 296, 299 (1887) (evidence
sufficient to go to jury where defendant custodian of fox let it
loose to be hunted by dogs, who "caught [fox] and mangled it");6
Commonwealth v. Thornton, 113 Mass. 457, 458 (1873) (indictment
charged crime through allegation defendant "knowingly and
wilfully suffer[ed] and permit[ted] [a] dog to be bitten,
mangled and cruelly tortured by a certain other dog"). We have
not found, nor have the parties cited, a case in which a
person's failure to intervene with the complicated,
heartbreaking, painful end of an animal's life has been
interpreted as "subjecting" an animal to statutorily prohibited
interpretation that the Legislature intended criminal liability
to lie only when the animal was "subjected to" the harm, rather
than simply "suffering" the harm.
6 The statute then in effect, P.S. (1882), c. 207, § 53,
criminalized, in pertinent part, the actions of an "owner,
possessor, or person having the charge or custody of an animal,
who . . . knowingly and wilfully authorizes or permits it to be
subjected to unnecessary torture, suffering, or cruelty of any
kind . . . ."
10
harm.7 We decline to extend the statute in this way. In so
deciding, we rule only on the facts of the case before us and
express no opinion whether, in a different situation, depriving
an animal of medical care might violate the statute.8
Conclusion. For the foregoing reasons, we affirm the order
allowing the defendant's motion to dismiss the criminal
complaint.9
So ordered.
7 The Commonwealth resists the notion that it charged the
defendant because she failed to euthanize the dog, noting
instead that the complaint alleged broader criminal conduct,
that of permitting unnecessary torture or suffering by not
treating the dog's pain and labored breathing. Although this
position rings discordantly against the facts as argued at the
hearing by the Commonwealth -- the veterinarian "recommended
humane euthanasia . . . because this [fourteen year old] dog's
pain could not be controlled" -- we need not address this
argument given our conclusion that the complaint did not allege
a crime contemplated by the statute.
8 Between 1982 and 2010, the Legislature considered and
rejected at least three bills that would have criminalized the
defendant's conduct. See House Doc. No. 1303 (Jan. 13, 2009);
House Doc. No. 1339 (Jan. 10, 2007); House Doc. No. 865 (Jan. 6,
1982). We recognize that "[w]e do not draw conclusions
concerning the intent of the Legislature based on the failure to
enact a subsequent amendment," Cook v. Patient Edu, LLC, 465
Mass. 548, 555 n.14 (2013), and note these proposed amendments
solely as background.
9 The defendant seeks leave "to file the appropriate
affidavits and other information" supporting her request for
appellate attorney's fees and costs. In compliance with Mass.
R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017), the
defendant may do so within thirty days of the issuance of the
rescript. See Commonwealth v. Ennis, 441 Mass. 718, 720 (2004);
Commonwealth v. Santos, 99 Mass. App. Ct. 360, 365 (2021).