Commonwealth v. Russo

236 N.E.3d 1171

COMMONWEALTH

v.Maryann RUSSO.

SJC-13531

Supreme Judicial Court of Massachusetts, Norfolk.

March 6, 2024

July 15, 2024

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, Dedham (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, Dorchester, Suffolk County, Committee for Public Counsel Services, for Committee for Public Counsel Services.

Allison Blanck & Lynsey M. Legier for Animal Rescue League of Boston & another.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, & Dewar, J J.

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 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, 218 N.E.3d 116 (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, 24 N.E.3d 1048 (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 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 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.

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 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 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 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...