Commonwealth v. Waller

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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
3

"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.
4

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
5

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
6

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. . . .
7

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.
10

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
12

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.
13

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.
14

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
15

"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").
16

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
17

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.