NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-653
COMMONWEALTH
vs.
RADOSLAW CZERKAWSKI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of twelve counts of animal
cruelty following a jury trial.1 Prior to trial, the defendant
moved for a change of venue due to what he claimed was
substantial pretrial publicity that interfered with his right to
a fair and impartial jury. This motion was denied. The
defendant renewed the motion for a change of venue before a
second judge, and it was denied again.2 After conviction, the
defendant noticed an appeal, which we stayed to allow him to
file a motion for a new trial. That motion was denied, and the
1The defendant was found not guilty on a single count of misleading police.
2 Neither motion judge was the trial judge. defendant filed a second notice of appeal. In this consolidated
appeal, the defendant argues that the pretrial publicity was so
substantial as to require a change of venue due to impairment of
the local jury pool. We affirm.
1. Background. a. Facts. Viewing the evidence in the
light most favorable to the Commonwealth, the jury could have
found the following facts. In January 2013, the defendant,
Radoslaw Czerkawski, began working as a caregiver for Janina
Stock, who was ninety-four years old at the time, after having
been hired by her grandchildren. The defendant worked in that
position, living with Stock in her home in Quincy, until Stock
died on the morning of August 31, 2013. In February 2013, while
he was working as Stock's caregiver, the defendant sent a
message to Stock's granddaughter that Stock wanted to get a dog.
The granddaughter remarked that Stock had never allowed her to
have a dog, but there is no evidence in the record that she told
the defendant whether he could get a dog. After Stock's death,
the defendant submitted receipts for reimbursement to Stock's
grandson, one of which was for dog food. The grandson was
surprised by this receipt, as he did not believe anyone in the
house had a dog.
On the morning of August 31, 2013, the day Stock died, an
emaciated dog with extensive injuries and no collar or other
identification was found by two passersby, abandoned down the
2 road from Stock's home. The passersby called the Quincy police
department, and the responding officer called animal control,
which picked up the dog.
Later that morning, the dog was brought from the Quincy
Animal Shelter to the VCA South Shore Animal Hospital. A
veterinarian examined the dog, which was a female white pit bull
with brown spots. The veterinarian found that the dog was very
emaciated, could not bear weight on any of her limbs, and had
the following injuries: swollen joints, an injured eye, burns
on her nose, a lacerated tongue, very long nails, and wounds on
her head. The dog presented as if she were in pain. The
veterinarian concluded that these were inflicted injuries.
After the examination, the dog was euthanized due to the
severity of her injuries.
A necropsy, which is a postmortem examination of an animal,
was performed on the dog by another veterinarian. In addition
to the things found by the first veterinarian, she also found
that the dog had bruising in one lung, a blood clot in her
chest, fractured ribs and spine, swollen and dislocated leg
joints, and a fractured femur. This veterinarian, too,
concluded that the dog's injuries were all inflicted.
At first, the police had no information about the dog
beyond her condition, and they did not know who had abused the
3 dog. As described below, there were several news stories about
the discovery of the dog and about her condition.
After seeing one such news story on television, a woman
contacted the Quincy police department because she recognized
the dog as her former dog "Kyia." Kyia was a pit bull mix that
she had given away to a couple who responded to the woman's
Craigslist advertisement in May 2013. In June 2013, the couple
in turn gave Kyia away through a Craigslist advertisement. One
member of the couple gave Kyia to a man who had what he
described as an Albanian or Polish accent. Later, that member
of the couple examined a photographic array and identified the
defendant as the man to whom he had given Kyia with what he
described as 89.9 percent certainty. At the time that the
couple gave Kyia away, she was in good health and did not have
injuries.
The Craigslist advertisement posted by the couple was later
found in the Internet history on the defendant's laptop. His
laptop also showed an Internet search for free pets, and his
browser history showed visits to several animal-related
websites, including Petfinder and the Massachusetts Society for
the Prevention of Cruelty to Animals.
The veterinarian who performed the necropsy on the dog had
extracted a tissue sample and sent it to a genetics laboratory.
Samples taken by the police from red-brown stains found in
4 Stock's home were also sent to the laboratory. Finally, a
sample taken from a collar found in the defendant's rental car
was sent to the same laboratory. A forensic analyst at the
genetics laboratory concluded that the deoxyribonucleic acid
(DNA) profile for the tissue sample extracted from the dog's
body matched the DNA profile for some of the samples taken from
Stock's home and the sample taken from the collar.
b. Pretrial publicity. After the dog was discovered, when
nothing about her was known and there were no suspects, there
was substantial media coverage of her suspected abuse, and the
dog was nicknamed "Puppy Doe." Photographs of the dog in life-
like positions taken at the time of the necropsy were circulated
in the media, and the office of the district attorney for the
Norfolk district (district attorney) asked the public for help
in identifying the individual responsible for the abuse of the
dog. During its publicity campaign, the district attorney's
office issued a press release stating, "It is highly unlikely
that this level of sadistic cruelty could be shown to one animal
and not be part of a pattern involving other animals or perhaps
vulnerable people." In September 2013, a vigil for the dog was
held in Quincy, and the district attorney attended and spoke,
making a statement similar to the one in the press release,
which was reported in the media.
5 After the defendant's arrest in October 2013, the Facebook
page for the district attorney's office posted updates regarding
the schedule of the court proceedings. Numerous Facebook users
made comments on these posts and on a Facebook page entitled
"Justice for 'Puppy Doe.'" These comments called for the
defendant to be incarcerated, protested the many continuances
before the trial, expressed sympathy for the dog and outrage at
her abuse, and some even called for the defendant to be
deported, tortured, or killed.
Trial took place in March 2018, more than four years after
the dog was found. At the beginning of each day of jury
selection, the judge asked all the jurors as a group if they had
seen or heard anything about the case. Then, at sidebar, the
judge individually asked the jurors who had not already been
excused for some other reason, about what, if anything, they had
seen or heard. At the time of the trial, approximately forty-
five percent of the jury venire reported having seen or heard
something about the case in response to the judge's question
posed at the beginning of jury selection. Of the twelve
deliberating jurors, one-third knew of the case prior to trial.
The four deliberating jurors who had heard of the case were
jurors 38, 42, 63, and 81. Juror 38 had heard of the case and
knew that it was the so-called "Puppy Doe" case, but did not
remember details other than the fact that the dog had died.
6 Juror 42 had seen news stories about the case as recently as the
night before trial, which included pictures of the dog and
"speculation about what happened." However, the juror had not
seen or heard anything about the defendant. Juror 63 thought he
had seen something about the "Puppy Doe" case but seemed unsure.
Juror 81 had heard of the case very briefly on the television
news and knew that the dog had been euthanized. Jurors 38, 42,
and 81 all stated that what they had seen or heard about the
case would not impact their ability to be fair and impartial in
the case, and juror 63, while not asked that specific question,
stated that there was nothing he could think of that would
impact his ability to be fair and impartial in the case. The
defendant did not challenge any of these jurors for cause, nor
did he exercise any of his peremptory challenges to strike them,
and he had two peremptory challenges remaining when the jury
were seated.
2. Discussion. The defendant argues that the pretrial
publicity in this case required a change of venue. A motion for
a change of venue may be granted if "there exists in the
community where the prosecution is pending so great a prejudice
against the defendant that he may not there obtain a fair and
impartial trial." Commonwealth v. Toolan, 460 Mass. 452, 462
(2011), S.C., 490 Mass. 698 (2022), quoting Mass. R. Crim.
P. 37 (b) (1), 378 Mass. 914 (1979). The judge retains
7 "substantial discretion" in deciding such a motion, and we
review such decisions for an abuse of discretion. Commonwealth
v. Hoose, 467 Mass. 395, 405 (2014).
The defendant bears the burden of showing either
"presumptive" or "actual" prejudice. Hoose, 467 Mass. at 406.
Where "the entire jury pool is tainted by exposure to pretrial
publicity[,] the venire is considered presumptively prejudiced,
regardless of the details of the voir dire process . . . , and
even if individual members of the jury expressly assert their
belief that they can be 'fair and impartial.'" Toolan, 460
Mass. at 463. "However, presumptive prejudice exists only in
truly extraordinary circumstances." Id.
a. Preserved claim of presumptive prejudice. In this
case, the defendant brought a motion that he later renewed in
advance of trial seeking a change of venue. Since the defendant
filed his motions before voir dire and did not renew it before
the trial judge, he could claim only presumptive prejudice, as
there was no record support for claiming actual prejudice. The
two main factors relevant to a finding of presumptive prejudice
are (1) "the nature of the pretrial publicity, specifically
whether it is both extensive and sensational," and (2) whether
the judge was "able to empanel jurors who appear impartial."
Hoose, 467 Mass. at 406. The latter is the factor of "primary
importance." Id., quoting Toolan, 460 Mass. at 464. Given the
8 timing of the defendant's motions, there was no evidence about
that second factor in the record before the motion judges.
(Showing actual prejudice, of course, requires an examination of
the answers of the jurors at voir dire. See Hoose, supra at
408-409.)
In support of his motion to change venue, the defendant
filed materials purporting to show both the inflammatory nature
of the district attorney's public statements and the broad news
coverage of the case. These included a press release posted to
the Facebook page for the office of the district attorney and
several news articles from shortly after the abused dog was
found in 2013. The press release and articles contained the
district attorney's request for information from the public
regarding the dog's or perpetrator's identity. The request for
assistance in finding the perpetrator cannot be construed as
inflammatory. The articles and press release from 2013,
however, also included the district attorney's speculation that
it was "highly unlikely that this level of sadistic cruelty"
could be limited to just one animal, and that there could have
been other animal, or even human, victims.
The defendant also submitted two stories from shortly after
his arrest. One was a news article that included a photograph
of the dog and factual information about the defendant and his
arrest. Another was a Facebook post by the office of the
9 district attorney sharing video footage of a press conference,
and the post is entitled "No known motive in Puppy Doe abuse
case, probably just 'sick individual.'"
The defendant submitted Facebook posts from the office of
the district attorney communicating case scheduling updates once
the case against the defendant was underway. These updates
included a post with a link to a story entitled "'Puppy Doe'
suspect indicted on larceny charges." Although this was a
factual update concerning the defendant's arraignment, this
story could have alerted potential jurors to the fact that the
defendant was also charged with larceny. For this reason,
though not sensational, this information might have been
prejudicial to those who were exposed to it. That said,
"[a]lthough references to the defendant's past criminal
convictions may not have cast him in the most favorable light,
. . . fact-based publicity, even that which contains references
to charges pending against the defendant, . . . is not the sort
of sensational publicity that would give rise to a presumption
of prejudice." Hoose, 467 Mass. at 407.
In addition to Facebook posts containing factual
information made by the office of the district attorney, there
were many comments made by members of the public on these
Facebook posts. Some of these comments can be construed as
10 sensational, with a few even going as far as to call for
violence against the defendant.
We will assume without deciding that these identified
pieces of publicity were sensational or otherwise prejudicial.
Nonetheless, we conclude that there was no error in the motion
judges' conclusion that the defendant failed in his burden to
show the publicity was "extensive."
Publicity is not extensive if "the nature of the coverage
becomes more factual and the frequency of coverage decreases in
the time period between the crimes and jury empanelment."
Hoose, 467 Mass. at 406. In this case, over four years passed
between the alleged crimes and the trial, and that decrease in
frequency and increase in factuality is precisely what the
record showed. In support of his initial motion for change of
venue, the defendant submitted four articles written about the
animal abuse. Two of the articles were published in September
2013 prior to the defendant's arrest, one was published in
October 2013 shortly after the defendant's arrest, and the
fourth was published in February 2014 after the defendant was
indicted on larceny charges. The defendant also submitted the
office of the district attorney's press release from prior to
his arrest and press conference video footage from after his
arrest, both of which were from October 2013. The defendant
submitted no articles or other news media from any time between
11 February 2014 and the time he filed the motion for a change of
venue in June 2017.
In addition to the traditional media publicity, the
defendant also submitted various Facebook posts made by the
office of the district attorney providing updates on the status
of the defendant's case, as well as comments on those posts and
comments on a Facebook page called "Justice for 'Puppy Doe.'"
These posts and comments were made at various times, from
October 2013 through May 2017.3 However, the defendant presented
no evidence that either of the Facebook pages was widely viewed
by members of the community. None of the posts or comments on
Facebook were "liked" by more than thirty-three viewers, or
"shared" by more than forty-eight, which would seem to indicate
a very low level of engagement in a county of 700,000 people.
Even though, subsequent to the defendant's motions for a
change of venue, some jurors stated at voir dire that there had
been press coverage of the trial in the days leading up to it,
our record is devoid of any such material, as the defendant did
3 Some of the Facebook posts and comments are dated with only a month and day, but without a year. Because these submissions were attached to the defendant's initial motion for a change of venue, which was filed in June 2017, we assume that those posts and comments were from 2016 and the first half of 2017.
12 not include it in the appendix.4 As it is the defendant's burden
to show prejudice, the only traditional news media before us was
from more than four years prior to the trial, and the defendant
provided no evidence that the more recent social media content
was widely viewed, we do not conclude that the publicity was
extensive. Thus, we see no abuse of discretion in the two
motion judges' denials of the defendant's motions for change of
venue.
b. Unpreserved claims of prejudice. i. Presumptive
prejudice based on juror responses at voir dire. Before us, the
defendant argues that presumptive prejudice was demonstrated not
only by the evidence put before the motion judges, but by that
evidence combined with what was revealed at voir dire. This
claim was never raised below and so is not preserved. We
therefore may order a new trial on this ground only if we find
both that there was an error and that it created a substantial
risk of a miscarriage of justice. See Commonwealth v. Alphas,
430 Mass. 8, 13 (1999).
4 At the hearing on the renewed motion, the defendant's counsel asserted that he had submitted "well over I think four hundred pages of various published media." Before us, the defendant has submitted only twenty-two pages of published materials consisting of several newspaper articles, Facebook postings, and the comments thereto.
13 As described above, the factor of primary importance in the
determination of presumptive prejudice is whether the judge was
"able to empanel jurors who appear impartial." Hoose, 467 Mass.
at 406. Of course, the general rule is that "jurors' assertions
of impartiality should be accepted by the judge." Commonwealth
v. Leahy, 445 Mass. 481, 494 (2005). In determining whether
extraordinary circumstances exist such that pretrial publicity
is so pervasive as to create a presumption of prejudice despite
jurors' assertions of impartiality, courts may consider the size
of the community in which the trial is to take place and the
percentage of the jury venire who have heard about the case.
See id. at 493-494. For example, prejudice was presumed in a
case that took place in a small, rural community and in which
almost ninety percent of the jury venire already had some
opinion as to the defendant's guilt. See id., citing Irvin v.
Dowd, 366 U.S. 717, 725, 727 (1961). In contrast, there was no
finding of presumptive prejudice in a case in which one-third of
the jury venire not only knew of the case but had been excused
at least in part for having actually been prejudiced, see Leahy,
supra at 494, citing Commonwealth v. Clark, 432 Mass. 1, 6
(2000), nor in a case in which forty-two percent of the jury
venire were disqualified because they knew of the defendant, see
Leahy, supra, citing Commonwealth v. Angiulo, 415 Mass. 502,
515-516 (1993).
14 Given the size of the community from which the jury panel
was drawn, the number of jurors who had heard of the case, and
the jurors' descriptions of what they had heard, this is not a
case in which the defendant has demonstrated before us that,
consciously or unconsciously, the jurors were mistaken about
their ability to be fair and impartial. See Angiulo, 415 Mass.
at 515-516.
Because the judge thus was able to empanel an impartial
jury, and the publicity was not extensive as described above,
even though approximately forty-five percent of the jury venire
reported having heard of the case, the judge would not have
abused her discretion by finding that there was no presumptive
prejudice. There was thus no error.5
ii. Actual prejudice. We turn to the argument that there
was actual prejudice. Again, this was not raised below, so we
review any error for a substantial risk of a miscarriage of
justice. See Alphas, 430 Mass. at 13. A claim of actual
prejudice is considered in the totality of the circumstances to
determine whether the "pretrial publicity deprived [the
defendant] of his right to a fair and impartial jury." Hoose,
467 Mass. at 408. "A defendant's right to a fair and impartial
5 Consequently, our decision on this question would be the same even had the claim been preserved.
15 jury does not require that jury members have no prior knowledge
of the crime." Commonwealth v. Colon-Cruz, 408 Mass. 533, 551
(1990). To determine whether jurors were actually prejudiced by
publicity, courts have looked to the voir dire procedures used
by the judge. See Toolan, 460 Mass. at 466-467.
In this case, the trial judge employed many safeguards to
ensure that empanelled jurors were not actually prejudiced.
Because the trial was expected to be lengthy, the judge gave
each party eight peremptory challenges rather than the required
four, see Mass. R. Crim. P. 20 (c) (1), 378 Mass. 890 (1979),
and empanelled sixteen jurors instead of twelve. The judge
asked the jury venire statutory questions as a group, the jurors
filled out a supplemental questionnaire, and they were then
questioned individually at sidebar. During the individual voir
dire, the judge asked many of the jurors, including all the
jurors who were eventually seated, if they had ever seen or
heard of the "Puppy Doe" case and, if so, what they had seen or
heard and if it would affect their ability to be fair or
impartial.6 The attorneys for each party were also permitted to
6 The defendant argues that this line of questioning was prejudicial because there had been a motion in limine to exclude the term "Puppy Doe" from the trial. However, counsel for defendant agreed at a pretrial hearing with the judge that the phrase should be used, but only at sidebar in jury selection where relevant with respect to pretrial publicity. And, at voir dire, the judge avoided use of the term "Puppy Doe" to jurors who already indicated that they had heard about the case until
16 ask questions of the individual jurors. Finally, on both days
of jury selection, after all of the jurors from that day were
individually questioned, the remaining jurors whom the judge had
found indifferent were questioned as a group by the attorneys
for both sides. These safeguards allowed the judge to excuse
for cause any juror she did not determine to stand indifferent,
which helped to ensure that only jurors who could decide the
case impartially were ultimately empanelled. As described
above, after all of this examination, only one-third of the
jurors who ultimately deliberated had heard about the case prior
to the trial.
While the judge, on her own initiative, excused many jurors
for cause over the course of individual voir dire, the defense
counsel challenged only one juror for cause (unrelated to the
pretrial publicity). The judge then excused the juror for
cause. The defendant did not use all his peremptory challenges,
using only six of the eight allotted.7 The lack of for-cause
defense counsel requested that the judge specifically ask such jurors whether they had heard anything about "Puppy Doe."
7 The peremptory challenges were exercised at the end of each of the two days of empanelment. At the end of the first day, the judge expressed her openness to a party's renewing a challenge for a juror or requesting additional challenges if necessary. As such, there appears to have been no need for the defendant to avoid using peremptory challenges in order to save them for possible future use.
17 challenges by the defendant due to a juror's knowledge of or
bias about the case coupled with the defendant's failure to use
all peremptory challenges, indicated that he did not think, at
the time of empanelment, that the jurors were impermissibly
prejudiced by the pretrial publicity. See Commonwealth v.
Morales, 440 Mass. 536, 543 (2003) ("failure to exhaust . . .
peremptory challenges . . . belies any claim of juror
partiality"). Consequently, we think the trial judge could
properly have found no actual prejudice (if this issue were
raised before her), and therefore we see no error.8
3. Conclusion. We do not find that the motion judges
abused their discretion in denying the defendant's motion or his
renewed motion for a change of venue, nor that the trial judge
8 The defendant's appeal from the order denying his motion for a new trial also is before us in this consolidated appeal, but as he pursues no argument on this subject, we affirm the order without further discussion.
18 was required to order a change of venue sua sponte.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Rubin, Singh & Hershfang, JJ.9),
Clerk
Entered: September 23, 2024.
9 The panelists are listed in order of seniority.