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SJC-13531
COMMONWEALTH vs. MARYANN RUSSO.
Norfolk. March 6, 2024. - July 15, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, 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.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. Jason S. Bolio (Michael J. Santomaro also present) for the defendant. The following submitted briefs for amici curiae: Martha Smith-Blackmore & Lenore M. Montanaro, pro se. Kathleen M. Wood & Jessica A. Chapman, of Oregon, & Debora Newman for Animal Legal Defense Fund & another. Jamie Falzone, pro se. Ann Grant, Committee for Public Counsel Services, for Committee for Public Counsel Services. Allison Blanck & Lynsey M. Legier for Animal Rescue League of Boston & another. 2
GAZIANO, J. This case raises the issue whether a failure
to follow a veterinarian's recommendation to euthanize a pet,
and instead bring the pet home to die, violates the animal
cruelty statute, G. L. c. 272, § 77. The charge against the
defendant, Maryann Russo, arises from her care of Tipper, her
then terminally ill fourteen year old cocker spaniel. The
defendant brought Tipper to a veterinarian seeking to have a
large necrotic mass removed from Tipper's side. Observing the
extent of Tipper's illnesses, including bed sores and open
wounds, the veterinarian informed the defendant that Tipper
would not survive surgery. The veterinarian recommended
euthanasia because, in her opinion, Tipper was terminally ill
and nothing could be done to manage his pain. The defendant
falsely promised to bring Tipper to a different veterinary
practice to be euthanized and took Tipper home to die. A few
weeks later, prompted by the veterinarian's suspicions about the
defendant's intentions, the Animal Rescue League (ARL) removed
Tipper from the defendant's care. Tipper, by this point, was
close to death, with a distended stomach and periodic, shallow
breathing.
A criminal complaint issued against the defendant charging
her under a portion of the animal cruelty statute that prohibits
"knowingly and willfully authoriz[ing] or permit[ting] [an 3
animal] to be subjected to unnecessary torture, suffering or
cruelty of any kind." G. L. c. 272, § 77. The defendant filed
a motion to dismiss the complaint, which was allowed by a
District Court judge. The Appeals Court affirmed the dismissal
of the complaint. See Commonwealth v. Russo, 103 Mass. App. Ct.
319, 324 (2023). We allowed the Commonwealth's application for
further appellate review and now affirm the judge's order. For
the reasons that follow, we conclude that there was insufficient
evidence of criminal intent to sustain a charge of animal
cruelty.1
Background. 1. Facts. We recite the relevant facts from
the application for criminal complaint. See Commonwealth v.
Ilya I., 470 Mass. 625, 626 (2015).
On December 25, 2020, the defendant brought Tipper2 to the
VCA South Shore Animal Hospital (animal hospital). A
veterinarian attended to Tipper and observed a large mass on his
1 We acknowledge the amicus briefs submitted in support of the Commonwealth by Martha Smith-Blackmore and Lenore M. Montanaro; the Animal Legal Defense Fund and the Association of Prosecuting Attorneys; Jamie Falzone; and the Animal Rescue League of Boston and the Massachusetts Society for the Prevention of Cruelty to Animals. We also acknowledge the amicus brief submitted in support of the defendant by the Committee for Public Counsel Services.
2 The defendant asserts in her brief that the dog's name is misstated throughout the record as Chipper when it was in fact Tipper. 4
side. She recommended surgery to remove the mass. The
defendant declined the surgery and took Tipper home.
About three weeks later, on January 13, 2021, the defendant
again brought Tipper to the animal hospital. This time, the
veterinarian observed that Tipper not only had a "large necrotic
mass," but also had bed sores and an "open necrotic wound" where
his skin was "sloughing off." Additionally, Tipper was unable
to walk or stand, appeared anemic, and exhibited significant
pain with labored breathing. Based on Tipper's condition, the
veterinarian advised the defendant that there was nothing that
could be done to control Tipper's pain and recommended
euthanasia. In response, the defendant requested the surgery
that the veterinarian previously had recommended on December 25.
The veterinarian explained that Tipper was unlikely to survive
surgery. The defendant claimed that she would have a different
veterinarian euthanize Tipper and took him home.
Despite the defendant's statement that she would take
Tipper elsewhere, "[the veterinarian] did not believe that the
[defendant] would do this based on [the defendant's] history at
[the animal hospital]." Concerned by Tipper's pain and his need
for supplemental oxygen, the veterinarian contacted the ARL the 5
following day to report her interaction with the defendant.3 In
her report, the veterinarian explained to the ARL that the
defendant removed her dog from the animal hospital against
medical advice.
After the veterinarian's initial report, Sergeant Paul
Parlon, a special State police officer with the ARL, was
assigned to the case.4 Parlon made several unsuccessful attempts
to contact the defendant. He left notices at the defendant's
home and messages on the defendant's telephone. On January 15,
2021, one day after the veterinarian's report, Parlon received a
voice mail message from the defendant. The defendant stated
that Tipper was in good health and pain free. Asserting that
Tipper had returned to his normal behavior, the defendant
reported that he was once again eating, drinking, getting off
the couch, and "going [to] the bathroom." Given Tipper's
improved health, the defendant explained that she did not plan
to euthanize him. Although the defendant provided her telephone
number, she did not respond after Parlon left her a voice mail
message stating that he needed to see Tipper.
3 There are no allegations in the complaint application that the veterinarian advised the defendant of Tipper's need for supplemental oxygen.
4 See G. L. c. 22C, § 57 (providing for appointment of agents of certain animal welfare organizations as "special state police officers" with "the powers of constables and police officers" to enforce animal cruelty prevention laws). 6
On February 4, 2021, Parlon returned to the defendant's
residence, but she was not home. The defendant's mother asked
if Parlon was there because of Tipper. After Parlon answered
affirmatively, the defendant's mother assured him that the dog
was "ok," and invited Parlon into the home. The defendant's
mother led Parlon to a room where the officer observed Tipper on
a couch, lying on a "bed-like linen," surrounded by newspapers,
and next to a large religious statue. Tipper was also wearing a
diaper.
On first seeing Tipper lying on his side, Parlon believed
that "the dog appeared to be deceased," because Tipper's legs
"looked stiff and there appeared to be no sign of breathing."
On closer inspection, Parlon saw that Tipper was taking "shallow
periodic breaths." Tipper appeared thin but with a distended
stomach. Parlon also observed the "raw-looking sores on [the
dog's] front and back right [l]egs" that the veterinarian had
described in her initial report.
After inspecting Tipper, Parlon told the defendant's mother
that Tipper needed immediate medical intervention. Although the
defendant's mother insisted that Tipper was in "good shape" and
doing "much better," Parlon maintained that Tipper was
"extremely ill" and dying. The defendant's mother asked Parlon
not to put these observations in his report and asserted 7
repeatedly that Parlon would not "tak[e] [her] dog" and that
Tipper would "die at home."
To observe the mass that the veterinarian had reported,
Parlon requested to see Tipper's left flank. The defendant's
mother complied, flipping Tipper so that his left side was
facing up. As Tipper was turned, he appeared stiff and
uncomfortable, gasping for air. Once turned, Parlon was able to
observe a large mass on Tipper's side, consistent with the
veterinarian's report. When Parlon remarked on Tipper's labored
breathing, the defendant's mother returned Tipper to his
original position on his right side and said, "There, see, he is
fine."
At this point, the defendant's father expressed frustration
with Parlon, stating, "[I am] sick of this America that lets
people kill dogs . . . . All I do is love my dog." Parlon
assured the defendant's father that he did not question whether
the father was dedicated to Tipper but explained that Tipper was
"suffering and clearly [the defendant's family was] aware of
that."
Parlon was led to the kitchen, where the defendant's mother
showed him a bag containing loose pills and pill bottles. She
stated that the bag contained pain medication for Tipper but 8
claimed that Tipper no longer needed them.5 Parlon reiterated
that Tipper was "clearly suffering" and needed immediate medical
intervention. The defendant's mother insisted that Parlon
should not put that information in his report.
After explaining to the defendant's family that Parlon
would be filing a report and seeking a court order to ensure
Tipper received medical care, Parlon was asked to leave. As he
left, Parlon was told he was not allowed back.6
2. Procedural history. In February 2021, a criminal
complaint issued from the Quincy Division of the District Court
charging the defendant with violating the animal cruelty
statute, G. L. c. 272, § 77.
In January 2022, the defendant filed a motion to dismiss,
asserting that the complaint lacked probable cause. She amended
her motion in March 2022. During a hearing on the defendant's
motion, the Commonwealth indicated that it was not proceeding on
a theory "that the defendant had to euthanize the dog," but
rather that the defendant permitted Tipper to experience
"unnecessary suffering," as prohibited by the animal cruelty
5 The complaint application contains no further information about the "pain pills." For example, it neither provides the generic or brand name of these pills, nor does it explain when or how these pills were obtained.
6 Although not explicitly stated in the complaint application, the record shows that Tipper was later seized by the officer pursuant to a warrant and euthanized. 9
statute. On June 14, 2022, a judge granted the defendant's
amended motion, writing in a margin endorsement: "I do not
conclude that the statute contemplates an affirmative obligation
to euthanize an animal loved and cared for by its owner."
The Commonwealth appealed from the motion judge's decision
to the Appeals Court. In affirming the dismissal of the
complaint, the Appeals Court reasoned that the plain language of
the animal cruelty statute indicated that "the Legislature
deliberately chose to criminalize only situations where someone
(or something) 'subjected' the animal to the harm at issue."
Russo, 103 Mass. App. Ct. at 323. Further, because there was no
case law "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 harm," the court "decline[d] to extend the statute in
this way." Id. at 324.
We granted the Commonwealth's application for further
appellate review.
Discussion. 1. Standard of review. Whether there is
probable cause to issue a criminal complaint is a question of
law, which we review de novo. See Commonwealth v. Manolo M.,
486 Mass. 678, 691-692 (2021). Our review is limited to the
"four corners of the complaint application" (citation omitted),
Commonwealth v. Orbin O., 478 Mass. 759, 762 (2018), which "must 10
establish probable cause by providing reasonably trustworthy
information sufficient to warrant a reasonable or prudent person
in believing that the defendant has committed the offense,"
Commonwealth v. Brennan, 481 Mass. 146, 149 (2018). The
existence of probable cause is determined from the totality of
the circumstances. See Ilya I., 470 Mass. at 628. Although
probable cause requires "considerably less than proof beyond a
reasonable doubt," Commonwealth v. Humberto H., 466 Mass. 562,
565-566 (2013), speculation alone is insufficient. See
Commonwealth v. Costa, 97 Mass. App. Ct. 447, 450 (2020)
(complaint did not establish probable cause where it "relie[d]
upon speculation rather than reasonable inferences"). Probable
cause must be established for each element of the charged
offense. See Ilya I., supra at 627. We consider the evidence
in the light most favorable to the Commonwealth. Brennan,
supra.
2. The animal cruelty statute. Whether probable cause was
established in this case turns on the proper interpretation of
G. L. c. 272, § 77. As with any question of statutory
construction, we begin by examining the plain language of the
statute. Commonwealth v. Escobar, 490 Mass. 488, 493 (2022).
Where the statute itself does not define a term, we look to its
plain and ordinary meaning. Commonwealth v. Tinsley, 487 Mass.
380, 386 (2021). "We derive the words' usual and accepted 11
meanings from sources presumably known to the statute's
enactors, such as their use in other legal contexts and
dictionary definitions" (citation omitted). Matter of the
Estate of Slavin, 492 Mass. 551, 554 (2023). If the plain
language is "clear and unambiguous," our analysis is complete
(citation omitted). Commonwealth v. McNeil, 492 Mass. 336, 337
(2023). See Escobar, supra ("Where the language of a statute is
plain and unambiguous, it is indicative of legislative intent,
and a reviewing court relies upon that statutory language,
unless to do so would create an absurd result"). Our primary
aim in statutory interpretation is to analyze the statute
consistent with the Legislature's intent. See Commonwealth v.
A.Z., 493 Mass. 427, 430 (2024).
The Legislature enacted the animal cruelty statute to
prevent "both intentional and neglectful animal cruelty."
Commonwealth v. Duncan, 467 Mass. 746, 751, cert. denied, 574
U.S. 891 (2014). See Commonwealth v. J.A., 478 Mass. 385, 390
(2017) (Cypher, J., concurring) ("Preventing animal cruelty is
. . . a crucial public policy goal in Massachusetts"). To that
end, the statute lists numerous means by which it may be
violated, providing:
"Whoever overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates or kills an animal, or causes or procures an animal to be overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, 12
deprived of necessary sustenance, cruelly beaten, mutilated or killed; and whoever uses in a cruel or inhuman manner in a race, game, or contest, or in training therefor, as lure or bait a live animal, except an animal if used as lure or bait in fishing; 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, and whoever, as owner, possessor, or person having the charge or custody of an animal, cruelly drives or works it when unfit for labor, or willfully abandons it, or carries it or causes it to be carried in or upon a vehicle, or otherwise, in an unnecessarily cruel or inhuman manner or in a way and manner which might endanger the animal carried thereon, or knowingly and willfully authorizes or permits it to be subjected to unnecessary torture, suffering or cruelty of any kind shall be punished . . ." (emphasis added).
G. L. c. 272, § 77.
The statute begins with, and largely consists of, a long
list of "thou shall not" provisions that directly prohibit a
defendant's harmful actions or omissions. See Russo, 103 Mass.
App. Ct. at 322. For example, it is a crime to "overdrive[],
overload[], drive[] when overloaded, overwork[], torture[],
torment[], deprive[] of necessary sustenance, cruelly beat[],
mutilate[] or kill[] an animal." G. L. c. 272, § 77. See
Russo, supra. The statute further proscribes "us[ing] [an
animal] in a cruel or inhuman manner in a race, game, or
contest" and "cruelly driv[ing] or work[ing] [an animal] when
unfit for labor." G. L. c. 272, § 77. See Russo, supra. Our
case law reflects the type of conduct prohibited under these
provisions. See, e.g., Commonwealth v. Curry, 150 Mass. 509, 13
512 (1890) (unnecessarily leaving horse in woods without food
and drink for more than twenty-four hours violated animal
cruelty statute); Commonwealth v. Turner, 145 Mass. 296, 301
(1887) ("throwing a captive fox among dogs, to be mangled and
torn by them" violated animal cruelty statute); Commonwealth v.
Whitson, 97 Mass. App. Ct. 798, 803-804 (2020) (plunging knife
five times deeply into dog violated animal cruelty statute);
Commonwealth v. Daly, 90 Mass. App. Ct. 48, 51-52 (2016)
("throw[ing] 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"
violated animal cruelty statute); Commonwealth v. Szewczyk, 89
Mass. App. Ct. 711, 716-717 (2016) ("[s]hooting the dog and
having the pellet lodge in her hind leg, deep into the muscle
and close to the bone" violated animal cruelty statute);
Commonwealth v. Zalesky, 74 Mass. App. Ct. 908, 908 (2009)
(beating dog with plastic bat at "full swing" violated animal
cruelty statute).
In contrast to the "thou shall not" provisions is the final
clause of the animal cruelty statute, which prohibits "owner[s],
possessor[s], or person[s] having the charge or custody of an
animal . . . [from] knowingly and willfully authoriz[ing] or
permit[ting] [an animal] to be subjected to unnecessary torture,
suffering or cruelty of any kind." G. L. c. 272, § 77. This
clause stands out for its inclusion of the heightened mental 14
state of "knowingly" and "willfully."7 Russo, 103 Mass. App. Ct.
at 323. Therefore, to analyze whether the Commonwealth
established probable cause that the defendant violated this
statutory provision, we must examine its language to determine
the requisite criminal intent for this portion of the statute.
The term "knowingly" "typically 'imports a perception of
the facts requisite to make up the crime.'" Commonwealth v.
McGhee, 472 Mass. 405, 415 (2015), quoting Commonwealth v.
Altenhaus, 317 Mass. 270, 273 (1944). "An act is done
'knowingly' if it is the product of conscious design, intent or
plan that it be done, and is done with awareness of probable
consequences" (citation and quotation omitted). Commonwealth v.
Becker, 71 Mass. App. Ct. 81, 89, cert. denied, 555 U.S. 933
(2008). See Commonwealth v. Rosado, 450 Mass. 657, 662 (2008)
(conviction for "knowingly" providing false sex offender
registration required proof defendant knew information was
false, not that defendant intended to deceive).
We generally construe statutes "in a manner that is
consistent with ordinary English usage." Commonwealth v.
Cassidy, 479 Mass. 527, 534, cert. denied, 139 S. Ct. 276,
(2018), citing Flores-Figueroa v. United States, 556 U.S. 646,
7 There is one other instance in the statute where a "willful" mental state is expressly required: "willfully abandon[ing]" an animal. G. L. c. 272, § 77. 15
652 (2009). Grammatically, where the term "knowingly" modifies
the verb or verbs in a statute, it likewise modifies the object
of the verb and phrases which limit that object. See Cassidy,
supra at 535-536. Here, the term "knowingly" must be read to
apply not only to the verbs, "authorizes" and "permits," but
also to the object, "it" (i.e., the animal), and the object
complement, "to be subjected to unnecessary torture, suffering
or cruelty of any kind." See id. at 536 ("knowingly" in statute
proscribing unlawful possession of large capacity feeding
devices, G. L. c. 269, § 10 [m], applies to both "has in his
possession" and "large capacity weapon"); Commonwealth v. Daley,
463 Mass. 620, 624 (2012) ("knowingly" in statute criminalizing
leaving scene of accident where death resulted, G. L. c. 90,
§ 24 [2] [a 1/2] [2], applies to both "colliding" and "causing
injury"). Therefore, to establish a violation of G. L. c. 272,
§ 77, the Commonwealth must prove that the defendant consciously
authorized or permitted something that the defendant was aware
would subject an animal to "unnecessary torture, suffering or
cruelty of any kind." See Daly, 90 Mass. App. Ct. at 51
("cruelly" in section of animal cruelty statute punishing anyone
who "cruelly beats, mutilates or kills an animal" applies to
"each of the subsequently listed verbs or elements of the
crime"). 16
The term "willfully" "takes on different meanings in
different contexts." Shannon, The Willfulness Requirement: A
Chameleon in the Legal Arena, 60 La. L. Rev. 563, 563 (2000).
See Millis Pub. Sch. v. M.P., 478 Mass. 767, 776 (2018) ("the
term 'wilfully' may have several meanings when read in
isolation"). Two oft-repeated definitions of "willful" or
"willfully" are (1) "intentionally or purposely as distinguished
from accidentally or negligently," without requiring "any actual
impropriety," and (2) acting with "a bad purpose or evil
intent." R.M. Perkins & R.N. Boyce, Criminal Law 875–876 (3d
ed. 1982).
In Massachusetts, we have utilized both meanings of a
"willful" mental state in different circumstances. In some
cases, the Commonwealth is required to prove the defendant
committed an intentional, nonaccidental act. See Millis Pub.
Sch., 478 Mass. at 776. See also Commonwealth v. Dung Van Tran,
463 Mass. 8, 26 (2011) (willful conduct in context of arson is
that which is "intentional rather than accidental" and requires
no ill will). In other instances, the Commonwealth must
establish that a defendant intends both her actions and their
harmful consequences. See, e.g., Commonwealth v. Adams, 482
Mass. 514, 527 (2019) (interference with officer); Commonwealth
v. Armand, 411 Mass. 167, 170 (1991) (destruction of personal
property); Commonwealth v. Joyce, 84 Mass. App. Ct. 574, 578 17
(2013) (interference with firefighter); Commonwealth v. Jenkins,
47 Mass. App. Ct. 286, 290-291 (1999) (stalking); Commonwealth
v. Kingston, 46 Mass. App. Ct. 444, 445 (1999) (filing
materially incorrect income tax returns).
Here, to determine the Legislature's intent in the use of
"willfully" within the animal cruelty statute, we look to the
broader statutory context of G. L. c. 272, § 77. Millis Pub.
Sch., 478 Mass. at 776. See ENGIE Gas & LNG LLC v. Department
of Pub. Utils., 475 Mass. 191, 199 (2016) ("The court does not
determine the plain meaning of a statute in isolation, but,
rather, . . . '[examines] the surrounding text, structure, and
purpose of the Massachusetts act'" [citation omitted]). This
section of the statute expressly includes not only the animal
owner's actions -- the authorization or permission -- but also
the harmful consequences of those actions -- unnecessary
"torture," "suffering," and "cruelty." In that respect, the
animal cruelty statute is similar to G. L. c. 268, § 32A, which
prohibits "willfully obstruct[ing], interfer[ing] with or
hinder[ing] a fire fighter in the lawful performance of his
duty." The Appeals Court interpreted "willfully" in G. L.
c. 268, § 32A, to mean that a "defendant must intend not just
his conduct, but the harmful consequences of the conduct –- that
is, the interference with, obstruction, or hindrance of the fire
fighter." Joyce, 84 Mass. App. Ct. at 578. 18
In light of the similar structure and surrounding terms of
the animal cruelty statute, we read the term "willfully" to
function in the same manner here. To prove the defendant acted
"willfully," we conclude that the Commonwealth must show the
defendant intended both the underlying action and its harmful
consequences. In other words, the defendant must intend for the
animal to be subjected to "unnecessary torture, suffering or
cruelty." G. L. c. 272, § 77.
3. Probable cause analysis. Having established the
meaning of the terms "knowingly" and "willfully" within the
animal cruelty statute, we conclude that the Commonwealth failed
to establish that the defendant's conduct was willful.8 The
defendant brought Tipper to the animal hospital twice seeking
medical care. Faced with difficult choices, the defendant took
Tipper home to die with the understanding that nothing could be
done to alleviate his pain, short of euthanasia. The complaint
application further details the efforts of the defendant's
family to make Tipper comfortable in the time he had remaining.
8 In reviewing the motion judge's decision granting the defendant's motion to dismiss for lack of probable of cause, we are "free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997). See Commonwealth v. Santa Maria, 97 Mass. App. Ct. 490, 494 (2020) (concluding probable cause existed "on grounds slightly different from those articulated by the motion judge"). 19
These allegations do not create a reasonable inference that the
defendant intended for Tipper to unnecessarily suffer.9
Nonetheless, the Commonwealth asserts that other evidence,
such as the defendant's telephone message to the ARL claiming
that Tipper was in good health and acting normally again, was
"untruthful." This falsehood, according to the Commonwealth,
indicates the defendant's ill intent to cause Tipper to suffer
unnecessarily. The reason why the defendant intended to avoid
contact with the ARL -- whether, for example, it was to prolong
Tipper's unnecessary suffering or to keep him in her care -- is
speculative. Speculation alone is insufficient to establish
probable cause. See Costa, 97 Mass. App. Ct. at 450.
The complaint application failed to establish probable
cause that the defendant intended for Tipper to unnecessarily
suffer when she declined to follow the veterinarian's
recommendation to euthanize Tipper and brought him home to die.
Our opinion should not be read to condone the conduct alleged in
the complaint or take a position one way or the other regarding
"complicated" and "heartbreaking" end of life decisions. Russo,
9 The defendant asserts that the meaning of "unnecessary" suffering is unconstitutionally vague as applied. Because we conclude that the complaint was unsupported by probable cause, we decline to resolve this constitutional question. See Dinkins v. Massachusetts Parole Bd., 486 Mass. 605, 616 (2021) ("We do not decide constitutional questions unless they must necessarily be reached" [citation omitted]). 20
103 Mass. App. Ct. at 324. Instead, we hold, on these facts,
that the defendant committed no crime.
Conclusion. The dismissal of the complaint against the
defendant is affirmed.10
So ordered.
10The defendant requests leave pursuant to Mass. R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017), to file affidavits "and other information" in support of her request for appellate attorney's fees and costs. The defendant may file such affidavits within thirty days of the issuance of the rescript. See Commonwealth v. Ennis, 441 Mass. 718, 720 (2004). The Commonwealth shall then have thirty days to respond. Id. at 721 n.3.