Opinion
12-P-207
01-08-2016
COMMONWEALTH v. HEIDI ERICKSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On December 16, 2010, following a District Court jury trial, the defendant, Heidi Erickson, was found guilty of eight counts of animal cruelty, in violation of G. L. c. 272, § 77. This is the defendant's consolidated appeal from her convictions and the denial of her two subsequent motions for postconviction relief. We affirm.
Each count related to a different animal as to which the Commonwealth was required to prove that the defendant intentionally failed to provide food, drink, shelter, or a sanitary environment. See Commonwealth v. Erickson, 74 Mass. App. Ct. 172, 176-177 (2009), cert. denied, 130 S.Ct. 1151 (2010).
The defendant filed a "motion for postconviction relief" and a "supplemental motion for postconviction relief." In our discussion, we refer to these motions as the defendant's first and second motions for a new trial.
Background. The jury could have found the following facts. On March 17, 2009, Sergeant Michael Burke of the Plymouth police department went to an apartment building located at 5 Lothrop Street at the request of the Plymouth health department. He detected a "very putrid smell," which got stronger as he proceeded up the stairs to the second-floor apartment where the defendant resided. A search warrant was obtained, and police officers entered and searched the apartment. According to Detective Charles Warnock, who was present when the warrant was executed, there was an overwhelming odor of putrefaction, which he likened to the smell given off by a deceased person or animal. He observed garbage, skin, fur, and cat fecal matter on the floor, and saw two cats running around loose. Upon execution of a second warrant that was obtained to remove the cats, numerous other cats were found in pet containers filled with fecal matter and urine. The cats looked undernourished and had missing fur; they wheezed and coughed, and their matted coats were covered with caked feces. The cats were removed from the premises and brought to the Tufts veterinary hospital.
Dr. Linda Ross, the Commonwealth's expert veterinarian, testified about the condition of eight of the cats and gave each of them a body condition score. According to Dr. Ross, all of the cats were very thin or underweight, most likely because they were not fed properly. She explained that it would be unusual for all of the cats to have medical conditions that caused low weight, and that their state raised concerns about the adequacy of their food supply. She also testified about the presence of infections and medical conditions that she attributed to an unsanitary environment.
Discussion. The defendant raises a number of issues in relation to her convictions and/or her motions for new trial. We address them in turn.
1. Restrictions on Dr. Poling's testimony. After the Commonwealth rested, it became apparent that the defendant had failed to provide the prosecution with an affidavit prepared by the defendant's expert veterinarian, Dr. Poling. As a remedy, the trial judge imposed restrictions on Dr. Poling's testimony, essentially precluding him from testifying on matters that had not been disclosed previously. Thus, he was unable to testify about the specific medical condition of each cat, with the exception of cats three and four, as to which full disclosure already had been made. He also was unable to testify about blood test results and body condition scores.
Notwithstanding the restrictions, Dr. Poling testified extensively. He was permitted to describe his general observations of all of the cats, to explain the genetic problems associated with the cats' breed (all were Persian cats), and to testify about the ways in which stress associated with breeding conditions can cause weight loss. He also was able to describe the medical tests he performed on cats three and four, and to give his opinion that their conditions were not due to environmental causes.
The defendant makes two related claims arising from the limitations placed on Dr. Poling's testimony. She claims that the judge abused her discretion in limiting his testimony, and that defense counsel was ineffective in failing to make the requisite disclosure. We review the judge's ruling for abuse of discretion. See, e.g., Commonwealth v. Giontzis, 47 Mass. App. Ct. 450, 459 (1999). See generally L. L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We review the claim of ineffective assistance of counsel under the two-pronged Saferian test -- whether counsel's behavior fell "measurably below" that of an "ordinary fallible lawyer," and, if so, "whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
We are unable to conclude that the judge abused her discretion. Significantly, the undisclosed affidavit did not come to light until after the Commonwealth had rested its case, at which point the trial judge's options for dealing with the situation were limited. Furthermore, the judge did not preclude Dr. Poling from testifying entirely; to the contrary, he was able to testify at length despite the restrictions. Contrast Commonwealth v. Paiva, 71 Mass. App. Ct. 411, 415 (2008).
As the judge later found in ruling on the first motion for a new trial, despite the constraints, "Dr. Poling's testimony was very favorable to the defense and seemed to be helpful." Although Dr. Poling was not permitted to testify about the individual body condition scores he assigned to the cats, his scores were not substantially different from those assigned by Dr. Ross. Other excluded topics, such as whether or not the cats showed evidence of fatty infiltration syndrome, had been probed to good effect during defense counsel's cross-examination of Dr. Ross. Finally, the nonexpert evidence supporting the defendant's convictions was extremely strong, including the testimony of the officers who entered the apartment, and photographs of the residence and the cats. For all these reasons, the trial judge, could conclude in her discretion that the limits placed on Dr. Poling's testimony did not deprive the defendant of a substantial ground of defense; similarly, even if a less severe remedy would have been more appropriate, the defendant was not unduly prejudiced by the judge's ruling.
2. Insufficient evidence as to cats four and six. The defendant contends that the evidence was insufficient to prove animal cruelty as to cats four and six, which were not as thin as the others. Each weighed approximately six pounds, and Dr. Ross did not deem their weights to be medically unacceptable. Contrary to the defendant's assumption, however, the Commonwealth was not required to show actual harm to the cats. Commonwealth v. Erickson, 74 Mass. App. Ct. at 178. Viewed in the light most favorable to the Commonwealth, the evidence sufficed to establish the essential elements of the crimes beyond a reasonable doubt with regard to cats four and six. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). See also note 1, supra.
3. Court room closure. The defendant claims that a brief closure of the court room to determine whether jurors had been exposed to an extraneous influence violated her constitutional right to a public trial. As no objection was raised, the defendant's claim is procedurally waived. Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert. denied, 136 S.Ct. 317 (2015). We review this unpreserved claim only to determine if a substantial risk of a miscarriage of justice occurred. Ibid. As the defendant has made no showing of prejudice resulting from the brief closure, and there can be no "serious doubt whether the result of the trial might have been different," Commonwealth v. Azar, 435 Mass. 675, 687 (2002), we discern no such risk.
A woman wearing a shirt that said "death to animal abusers" had approached a juror, and the judge wished to find out whether any other juror also had been approached.
If anything, the closure was undertaken for the benefit of the defendant and with the cooperation of defense counsel.
4. Motion to suppress. In her second motion for a new trial, filed on May 20, 2014, the defendant argues that deposition testimony of Susan Merrifield of the Plymouth department of health, which was not available at the time of the hearing on the motion to suppress, casts doubt on the soundness of the denial of her motion to suppress. The argument is without merit.
Unlike Sergeant Burke, who testified at the suppression hearing that he could smell the putrid odor when he was out on the driveway of the apartment building, Merrifield testified that she did not smell the odor until she entered the building and climbed a set of stairs to the defendant's apartment. According to the defendant, this stairway was an area in which she had a reasonable expectation of privacy, and hence Merrifield's entry was unlawful. However, the motion judge who heard the evidence on the original motion to suppress found that the hallway was a common area, and Merrifield's deposition testimony does nothing to undermine that finding.
Nor is there merit to the defendant's argument that the warrants issued on March 17, 2009 and March 18, 2009 were not based on probable cause. The March 17 warrant authorized a search for deceased or injured animals, improperly stored garbage, and health code violations, and the March 18 warrant authorized a search for and seizure of deceased or abused animals. In order to establish the requisite probable cause for the issuance of a search warrant, the supporting affidavit "must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Cruz, 430 Mass. 838, 840 (2000), quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213 , cert. denied, 464 U.S. 860 (1983). We are satisfied that the information contained within the affidavits established probable cause.
The defendant argues that the affidavit in support of the March 17 warrant did not establish that the police officers had the qualifications to identify the odor of animal putrefaction. However, probable cause need not meet the foundation requirements for proof of facts at trial. Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 707 (2014). The motion judge properly concluded that special training was not required to make such an identification of animal putrefaction in support of a search warrant. Compare Commonwealth v. Entwistle, 463 Mass. 205, 219 (2012); Erickson, 74 Mass. App. Ct. at 174.
Further, the defendant argues that the March 17 affidavit did not state definitively that she had animals in her possession. Again, the motion judge properly concluded that this was not fatal to the search warrant application, because the affidavit established sufficient probable cause. The affidavit indicated that police smelled a strong scent of garbage and possible putrefaction, and it described the defendant's history of prior complaints, arrests, and charges related to cruelty to animals.
The defendant takes issue with the fact that the criminal history referred to in the affidavit consisted of charges, complaints, and arrests, rather than convictions. See Roe v. Attorney Gen., 434 Mass. 418, 442 (2001). In this case, the affidavit stated that the defendant had more than twenty-five complaints ranging from animal cruelty to unknown odors, three arrests in 2003 for animal cruelty, and open charges of cruelty to animals. There was no error in including this criminal history in the affidavit in support of the warrant. Compare Commonwealth v. Dasilva, 66 Mass. App. Ct. 556, 561 (2006), in which this court observed that "this court has allowed police knowledge of a person's arrest record or unspecified 'criminal record' to be considered in a reasonable suspicion evaluation."
Finally, the defendant argues that the March 18 affidavit in support of the warrant did not establish probable cause as to the crime of animal cruelty. The motion judge noted that the March 18 affidavit stated that the police had observed cats that had missing fur, and a cat crate with feces and urine. In addition, the freezer contained the partially frozen corpse of a cat with large amounts of exposed skin. Again, the motion judge fairly concluded that this was enough to establish probable cause.
Contrary to the defendant's argument, G.L. c. 111, § 131, authorizing public health agents to obtain warrants in certain circumstances does not preclude the police from obtaining a search warrant based upon the suspected commission of a crime, in this case violation of G.L. c. 272, § 77.
5. Stipulation as to custody of the cats. For the first time on appeal, the defendant argues that her trial attorney's stipulation that the animals were in her custody on March 19, 2009, amounted to ineffective assistance of counsel. Despite the stipulation, testimony at trial showed that the cats were in the custody of the Commonwealth on March 19, and were examined by Dr. Ross on that day. Were it not for the stipulation, the defendant contends that she would have argued that the Commonwealth caused the condition of the cats while they were in the Commonwealth's custody. Given the conditions of the cats witnessed by police when they entered the apartment, and the fact that the cats' low body weights would take more than one day to manifest, this was not a substantial ground of defense. See Saferian, 366 Mass. at 96.
6. Cache of cats. Also for the first time on appeal, the defendant argues, citing Commonwealth v. Rollins, 470 Mass. 66, 74 (2014), that seven of the eight counts of animal cruelty should have been dismissed because her alleged actions were directed towards a single cache of cats. In Rollins, a conviction on several counts of possession of child pornography based on pictures found within the same cache of photos was held to violate the prohibition against double jeopardy. Ibid. The defendant notes that she was charged under the same chapter of the General Laws as the defendant in Rollins.
When discerning legislative intent, we look to the language of the statute itself. General Laws c. 272, § 77, refers to cruelty towards "an animal," thus plainly indicating an intent to prosecute instances of cruelty towards individual animals.
Additional subsidiary arguments raised by the defendant have not been overlooked. We see nothing in them that requires discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
Orders denying motions for postconviction relief affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 8, 2016.