Commonwealth v. Russo

• Court: Massachusetts Appeals Court
• Decided: September 14, 2023
• Docket: AC 22-P-690
• Status: Published

Opinion

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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 6

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).