Commonwealth v. Waller, No. 15–P–928.
| Court | Appeals Court of Massachusetts |
| Writing for the Court | RUBIN, J. |
| Citation | 58 N.E.3d 1070,90 Mass.App.Ct. 295 |
| Decision Date | 20 September 2016 |
| Docket Number | No. 15–P–928. |
| Parties | COMMONWEALTH v. Tasha WALLER. |
90 Mass.App.Ct. 295
58 N.E.3d 1070
COMMONWEALTH
v.
Tasha WALLER.
No. 15–P–928.
Appeals Court of Massachusetts, Essex.
Argued June 15, 2016.
Decided Sept. 20, 2016.
Sarah M. Unger, Boston, for the defendant.
Philip A. Mallard, Assistant District Attorney (Katelyn M. Giliberti, Assistant District Attorney, with him) for the Commonwealth.
Present: GREEN, RUBIN, & SULLIVAN, JJ.
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 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 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 “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.
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 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 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.... The patient had partially-digestedd
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...
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