NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

12-P-1811 Appeals Court

COMMONWEALTH vs. PATRICK DALY.

No. 12-P-1811.

Norfolk. October 2, 2015. - August 18, 2016.

Present: Katzmann, Grainger, & Maldonado, JJ.

Animal. Dog. Constitutional Law, Vagueness of statute, 

Assistance of counsel. Due Process of Law, Vagueness of 

statute, Assistance of counsel. Evidence, Photograph.

Practice, Criminal, Required finding, Instructions to jury, 

Assistance of counsel, New trial, Affirmative defense, 

Deliberation of jury. Defense of Others. Jury and Jurors.

Complaint received and sworn to in the Quincy Division of 

the District Court Department on February 23, 2011. 

The case was tried before Diane E. Moriarty, J., and a 

motion for a new trial was heard by her.

Danielle M. Wood for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the 

Commonwealth.

MALDONADO, J. The defendant appeals from a conviction of

animal cruelty, following his jury trial in the Quincy District 

Court, and from the denial of his motion for a new trial after 
2

an evidentiary hearing. The defendant was sentenced to serve 

from two to two and one-half years in the house of correction, 

with one year committed and the balance suspended for three 

years with probation. On appeal, the defendant asserts that the 

judge (1) erred in denying his new trial motion challenging the 

constitutionality of the animal cruelty statute; (2) improperly 

excluded photographic and testimonial evidence of the animal's 

aggressive behavior; (3) erroneously admitted an unduly 

prejudicial photograph of the deceased animal; (4) erred in 

denying his motion for a required finding; (5) incorrectly 

instructed the jury; and (6) erred in denying his new trial 

motion on the basis of ineffective assistance of his trial 

counsel. We affirm.

Background. The defendant was living in a duplex in 

Braintree with his then girl friend Joan Cummins, their four

year old daughter, Jamie, and Cummins's pet dog, a Chihuahua. 

The dog was fourteen years old and weighed approximately eight 

pounds. Cummins got him as a puppy for her now adult son. 

According to Cummins, the dog had been "snippy" since he 

was a puppy. Once, when Jaime was only eighteen months old, she 

was playing tug-of-war with the dog and he bit her face, 

requiring that she obtain stiches. As a result of this 

incident, Cummins agreed to crate the dog at night and whenever 

else he became snippy with Jaime. 
3

About midday on November 9, 2010, the defendant and Cummins 

were in the kitchen, and Jamie was alone with the dog in the 

living room. Jamie grabbed the dog's leash, which was attached 

to his collar. The dog barked, and Jamie cried out. The 

defendant, who had a direct view of the two, got upset and said 

"[the dog] bit [Jamie] again." According to Cummins, the 

defendant then charged at the dog, who ran and hid under the 

sofa. The defendant went after the dog. Cummins tried to stop 

the defendant from grabbing the dog, but he got hold of the 

dog's leash and took control of him. The defendant "flung the 

dog out" the open sliding door and onto the deck. Cummins 

became extremely upset; she was crying. The defendant, in the 

meantime, stated repeatedly the "dog bit her"; and "you like the 

dog better than you do your kid." 

Cummins searched for the dog, whom she did not see on the 

deck. The deck is about twelve feet off the ground. Cummins 

descended the deck stairs and saw the dog on the ground. He 

looked at her, whimpered, cried, and then expired. Jamie told 

Cummins the dog had bitten her. Cummins saw a cut on Jamie's 

knuckle, and she put a band-aid on it. 

Later that day, the defendant visited the police station to 

report an altercation he had had with Cummins's adult son. He 

spoke to Officer Bryan Adams. The defendant explained that 

Cummins's son came to the duplex upon learning of the dog's 
4

demise, and then fought with the defendant over the dog's death. 

According to Adams, the defendant also told him that when he 

observed the dog bite his daughter, he simply "lost it"; he then 

chased the dog until he could grab the dog. The defendant 

further admitted to throwing the dog onto the deck and to the 

dog's "f[alling] down over the deck." The defendant indicated 

that he looked out and "could see that the dog had ran off into 

the woods," and that he "didn't see the dog after that." 

Adams accompanied the defendant to the duplex. Walking 

down the driveway, Adams saw a young man sobbing over a bin 

containing a small dead Chihuahua. While indicating toward the 

defendant, the young man cried out he "killed my dog." Adams 

went into the apartment. The defendant remained outside with a 

police detective. In the apartment Adams encountered Cummins, 

Jamie, and the landlord, Richard Bottiglieri. Jamie showed no 

signs of trauma; she appeared bewildered but was not crying. 

Cummins was visibly upset and crying. 

 The defendant testified at his trial. He attested to 

throwing the dog onto the deck but asserted that he did it to 

protect his daughter. He also denied telling Adams that he had 

"lost it" or that he had seen the dog run into the woods. 

Discussion. 1. Constitutionality of G. L. c. 272, § 77. 

The defendant asserts the animal cruelty statute is vague 

and overbroad largely because it fails to define the term 
5

"kills" in addition to failing to define "unnecessary cruelty" 

or "cruelly beat".1 Viewed in context and in conjunction with 

the case law, see Commonwealth v. Campbell, 415 Mass. 697, 700 

(1993), the statute is sufficiently exacting. It sets forth a 

perhaps "imprecise, but comprehensible normative standard so 

that [individuals] of common intelligence will know its

meaning." Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). 

The term "kills" appears in the portion of the statute that 

punishes whoever "cruelly beats, mutilates or kills an animal." 

Contrary to the premise upon which the defendant bases his 

argument, the adverb "cruelly" in this phrase applies to each of 

the subsequently listed verbs or elements of the crime. See 

Commonwealth v. Daley, 463 Mass. 620, 624 (2012). See also 

Flores-Figueroa v. United States, 556 U.S. 646, 647 (2009). 

This interpretation comports with both grammatical tenets and a 

commonsense statutory purpose by making clear that acts such as 

branding a steer (mutilating without cruelty) or medically 

putting an animal down (killing without cruelty), are not 

criminalized. Commonwealth v. Zone Book, Inc., 372 Mass. 366, 

369 (1977) ("When a statute does not define its words we give 

them their usual and accepted meanings, as long as these 

 

1 In pertinent part, G. L. c. 272, § 77, as appearing in St. 

1977, c. 921, § 2, provides: "Whoever . . . cruelly beats, 

mutilates or kills an animal . . . shall be punished . . . ."
6

meanings are consistent with the statutory purpose.") Moreover, 

the term "cruelty" has been explicated in our decisional law 

since at least 1863, and requires the infliction of severe or 

unnecessary pain upon an animal. See Commonwealth v. Lufkin, 89 

Mass. 579, 581 (1863); Commonwealth v. Magoon, 172 Mass 214, 216 

(1898). See also Commonwealth v. Zalesky, 74 Mass. App. Ct. 

908, 909 (2009). Accordingly, where, as here, the terms of the 

statute are sufficiently defined so as to alert a pet owner that 

he or she may not throw a dog on its leash onto a deck with 

force enough to cause the animal to fall off the deck, twelve 

feet to its death, we perceive no constitutional infirmity. 

2. Excluded evidence. The defendant contends the judge 

improperly excluded from evidence, on the basis of its late 

disclosure in violation of pretrial discovery orders, the 

following evidence: (a) photograph of Jaime's hand after the 

incident; (b) testimony from the defendant's landlord that on 

several recent occasions prior to the crime, the dog had bitten 

him, his daughter, and his granddaughter; and (c) testimony from 

the landlord that the police refused to listen to his account of 

what occurred immediately after the incident. 

Trial judges possess wide discretion to determine 

appropriate sanctions for discovery violations. Commonwealth v. 

Carney, 458 Mass. 418, 429 (2010). "[T]he purpose of such 

sanctions must be remedial, not punitive." Ibid. Once a judge 
7

determines that a defendant has violated a discovery order, "it 

is incumbent on the judge to fashion an appropriate remedy." 

Commonwealth v. Reynolds, 429 Mass. 388, 398 (1999). The judge 

must balance enforcement of the discovery rules against the 

defendant's right to present a defense. Ibid. Before imposing 

the severest sanction of preclusion of the late disclosed 

evidence (which the judge did here), the judge must make clear 

that she has considered (1) the prevention of unfair surprise; 

(2) evidence of bad faith in violation of the discovery order; 

(3) prejudice to the other party caused by the admission of the 

late disclosed evidence; (4) the effectiveness of less severe 

sanctions and (5) the materiality of the evidence to the case. 

Ibid. 

It is clear from this record that in making her ruling, the 

judge emphasized the element of unfair surprise, remarking that 

such late disclosure was "unfair" to the Commonwealth and 

tantamount to trial by "ambush." It is less clear whether she 

took into consideration the several other required factors. 

Assuming, without deciding, that the judge erred in excluding 

the evidence without engaging in the proper balancing test, we 

nevertheless conclude that the defendant was not prejudiced. 

It was not disputed at trial that the dog bit Jaime. 

Neither was the nature of the injury in dispute, which by all 

accounts was a minor cut and required no more than a small band-
8

aid. A photograph depicting a band-aid on what would appear to 

be a minor injury would likely have only emphasized the 

insignificant nature of the injury and would have done nothing 

to bolster the defendant's theory of defense, i.e., that he was 

justified in coming to the aid of his daughter against the dog's 

attack.

We also see no prejudice arising from the exclusion of the 

testimony concerning the dog's prior bites on the landlord and 

his family. The dog's history of biting had no bearing on the 

defendant's intent or state of mind and, therefore, was 

excludable. Furthermore, even if the history was relevant, the 

landlord's anticipated testimony on this subject would have been 

cumulative because Cummins had testified to the dog's history of 

biting. See Commonwealth v. Smith, 460 Mass. 385, 398 (2011) 

(exclusion of cumulative evidence rarely prejudicial error). 

As to the evidence of what happened after the dog's demise, 

the defendant has failed to show how that evidence bore on the 

only contested issue in the case, namely, whether he was 

justified in grabbing and throwing an eight pound dog onto the 

deck. Concluding that independent of any discovery violations, 

the proffered evidence was either excludable or weak, we fail to 

see that the defendant was prejudiced by the judge's ruling.

3. Photograph of deceased dog. We also see no merit to 

the defendant's claim that the judge should have excluded the 
9

single photograph of the deceased dog in a plastic bin. The 

photograph tended to show the size of the animal and the fact of 

its death (which was relevant to disproving justification and to 

proving the use of excessive force). See Commonwealth v. Ramos, 

406 Mass. 397, 407 (1990), quoting from Commonwealth v. Bys, 370 

Mass. 350, 358 (1976) ("[I]f the photographs possess evidential 

value on a material matter, they are not rendered inadmissible 

solely because they are gruesome or may have an inflammatory 

effect on the jury").

4. Motion for a required finding. The defendant argues 

that the Commonwealth failed to disprove that the defendant's 

actions were justified to protect his daughter. See 

Commonwealth v. Cabral, 443 Mass. 171, 179-180 (2005). Assuming 

that the defendant was entitled to rely on the defense of 

another, the defense requires the Commonwealth disprove that 

"(a) a reasonable person in the actor's position would believe 

his intervention to be necessary for the protection of the third 

person, and (b) in the circumstances as that reasonable person 

would believe them to be, the third person would be justified in 

using such force to protect himself." Commonwealth v. Martin, 

369 Mass. 640, 649 (1976). "The reasonableness of the belief 

may depend in part on the relationships among the persons 

involved . . . . The actor's justification is lost if he uses 
10

excessive force, e.g., aggressive or deadly force unwarranted 

for the protective purpose." Ibid.

2 

Under the familiar standard set forth in Commonwealth v. 

Latimore, 378 Mass. 671, 676-677 (1979), we review the evidence 

in the light most favorable to the Commonwealth. Here, the 

evidence showed that the defendant had control of the eight 

pound dog before he threw the dog onto the deck. Even the 

defendant admitted that he was holding onto the leash with the 

dog before he threw him. Once the defendant had obtained 

control of the small animal, any justification to act in a 

manner that would inflict further pain on the dog evaporated and 

sustained the Commonwealth's burden to disprove the defense. 

Commonwealth v. Martin, 369 Mass. at 649. The motion was 

properly denied.

5. Jury instructions and deliberations. A. Elements of 

the crime. The defendant argues that the following instruction 

failed to properly instruct the jury on the parameters of 

culpable conduct:

 

2 Factors such as the "relative physical capabilities of the 

combatants, the characteristics of the weapons used, and the 

availability of maneuver room in, or means of escape from, the 

. . . area" are all factors the courts have considered in 

assessing the reasonableness of a defendant's force. See 

generally Commonwealth v. Kendrick, 351 Mass. App. 203, 212 

(1996); Commonwealth v. Medina, 81 Mass. App. 525, 531-533 

(2012).
11

"Whoever cruelly beats or kills, who -- whoever having the 

charge or custody of an animal either as an owner or 

otherwise, inflicts unnecessary cruelty upon it, shall be 

punished. In order to prove the defendant guilty, the 

Commonwealth must prove beyond a reasonable doubt that the 

defendant cruelly beat or killed the animal without 

justification, or the defendant had charge or custody of 

the animal either as an owner or otherwise, and the 

defendant inflicted unnecessary cruelty upon it. For the 

purposes of this law, to prove the defendant acted cruelly, 

the Commonwealth must prove beyond a reasonable doubt that 

the defendant committed acts that inflicted severe pain 

upon the animal without justification. The Commonwealth 

need not prove that the defendant intended the consequences 

of his acts, but it must prove beyond a reasonable doubt 

that the defendant intentionally and knowingly did the acts 

which were cruel."

Unaided by a model instruction, the judge drew from the 

statute and decisional law describing the offense. The first 

sentence of the instruction properly recites the relevant 

portion of G. L. c. 272, § 77. See note 1, supra. Decisional 

law has explicated this language, including that "[c]ruelty in 

this context is severe pain inflicted upon an animal . . . 

without any justifiable cause," language which the judge 

incorporated in her second and third sentences. Commonwealth v. 

Zalesky, 74 Mass. App. Ct. at 909 (quotation omitted). 

Decisional law has also made clear that proof of the offense 

only requires that "the defendant intentionally and knowingly 

did acts which were plainly of a nature to inflict unnecessary 

pain." See, e.g., Commonwealth v. Erickson, 74 Mass. App. Ct.

172, 177 (2009), cert. denied, 559 U.S. 1032 (2010); 

Commonwealth v. Szewczyk, 89 Mass. App. Ct. 711, 716 (2016). 
12

Put differently, the defendant's guilt does not depend upon 

whether he thought himself to have acted without justification, 

but upon whether he did so in fact. See Commonwealth v. Magoon, 

172 Mass. at 216; Commonwealth v. Zalesky, 74 Mass. App. Ct. at 

909; Commonwealth v. Linhares, 80 Mass. App. Ct. 819, 824 

(2011). The last sentence of the judge's instruction adds this 

concept, namely, that the crime is one of general intent. 

Commonwealth v. Erickson, supra at 176. We see no error in the 

instruction. Contrary to the defendant's claim on appeal, the 

judge did not leave key terms undefined. 

To the extent the defendant argues the judge should have 

inserted the word "cruelly" before the word "beat" and again 

before the word "killed" when instructing the jury, we disagree. 

The word cruelly here modifies both verbs, as discussed, supra. 

Moreover, even if common sense did not dictate such an 

interpretation, immediately after the phrase "cruelly beat or 

kill" the judge made clear that the killing must be without 

justification, thus conveying precisely what is intended by the 

use of the word cruelly. See Commonwealth v. Zalesky, supra at 

909. There was no error.

B. Defense of another and excessive force. The defendant 

argues (somewhat confusingly) that he should have been permitted 

to assert the justification defense stripped of any requirement 

that justification be based on a claim of the defense of another 
13

with the accompanying limitation on the use of excessive force. 

See, e.g., Commonwealth v. Martin, 369 Mass. at 649; 

Commonwealth v. Arias, 84 Mass. App. Ct. 454, 465-468 (2013). 

The trouble with this theory is that the term justification in 

the criminal law is simply an overarching term for a group of 

affirmative defenses, and among these defenses is the defense of 

another. See ,e.g., Commonwealth v. Martin, supra at 646-647; 

Commonwealth v. Cabral, 443 Mass. at 178-179. See generally 

Model Penal Code § 3.01, et seq. (1985). Thus, the defendant's 

claim of justification in this case was identical to his claim 

of defense of another. 

More importantly, the "label of affirmative defense does 

not relieve the Commonwealth of its burden of proof," as the 

defendant suggests. Commonwealth v. Vives, 447 Mass. 537, 541 

(2006). Because the circumstances related to a defense of 

justification are peculiarly within the knowledge of the 

defendant -- in this case the defendant's explanation for 

throwing the dog -- the defendant bears the burden of raising 

the defense. Commonwealth v. Cabral, 443 Mass. at 180-181. 

Once raised, however, the Commonwealth must prove beyond a 

reasonable doubt that the defendant was not legitimately 

defending another. Ibid. This allocation of the burden of 

proof does not run afoul of the constitutional mandate; that 
14

burden was correctly placed on the Commonwealth in this case. 

Commonwealth v. Vives, supra at 541. 

The defendant also argues that the jury should not have 

been instructed on the defense of another because it only 

applies to defending another against an attack by a human being, 

not an animal, which he claims is merely property. While there 

is no precedent in Massachusetts on this point, the same 

rationale that resulted in the adoption of defense of another in 

Massachusetts suggests that the law of the Commonwealth ought 

not to "mark as criminal those who intervene forcibly to protect 

others" from an attack by an animal, provided that excessive 

force is not used. See Commonwealth v. Martin, 369 Mass. at 

648-649.3

In any event, the defendant cannot be heard to complain 

that the jury were improperly instructed on the defense of 

another and the use of excessive force where the defendant 

invited the instruction by claiming his actions were justified 

by the need to protect his young daughter. See Commonwealth v. 

Knight, 37 Mass. App. Ct. 92, 99-100 & n.2 (1994) ("defendant on 

appeal bears a heavy burden in attempting to have his conviction 

 

3 There are other instances where legal principles have been 

applied to protect animals. For example, courts have permitted 

warrantless searches under the umbrella of the exiting emergency 

aid exception to the warrant requirement in order to provide for 

immediate assistance "to protect nonhuman animal life." 

Commonwealth v. Duncan, 467 Mass. 746, 753 (2014).
15

overturned" in case of invited error). Absent the instruction, 

the defendant would have been deprived of the main thrust of his 

defense.4

The defendant argues that the judge erred in instructing on 

excessive force because the attack here was by an animal rather 

than a person. We need not answer the broader question whether 

the excessive force limitation is applicable to all cases 

involving a defense against an animal attack because under the 

circumstances presented here, it was not inappropriate to give 

the instruction. The defendant still had the ability to present 

his defense.5

 

4 We also see no merit to the defendant's assertion that the 

burden of proof shifted onto him. The crime of animal cruelty 

is a general intent crime. The Commonwealth was required to 

prove that the defendant acted intentionally rather than 

accidentally. His claim that he was justified to defend 

another, as noted above, did not improperly shift the burden to 

him. Commonwealth v. Erickson, supra at 176; Commonwealth v. 

Vives, supra at 541.

5 The judge instructed as follows:

"A person cannot lawfully use more force than necessary in 

the circumstances to defend one's self or another. How 

much force is necessary may vary with the situation and 

exactness is not always possible. You may consider whether 

the defendant had to decide how to respond quickly under 

pressure and the Commonwealth may prove that the defendant 

did not act in self-defense or the defense of another by

proving beyond a reasonable doubt that the defendant used 

clearly excessive and unreasonable force. You may also 

consider any evidence about the relative size and strengths

of the parties involved and where the incident took place

among other evidence that you have before you. It is for

you to decide based on all of the evidence, whether the 
16

C. Written and supplemental instructions. We see no merit 

to the defendant's claim that the judge erred when she did not 

include among the written instructions she gave to the jury, 

pursuant to their request, the instructions for direct and 

circumstantial evidence. Commonwealth v. Guy, 441 Mass. 96, 108 

(2004) (no error where judge gave the jury a written outline of 

the elements of the crime, over the defendant's objection). Nor 

is relief required because the judge gave a supplemental 

instruction on excessive force, but did not remind the jury that 

the instructions should be considered as a whole in conjunction 

with the main charge. Commonwealth v. Green, 55 Mass. App. Ct. 

376, 383 n.8 (2002).

D. Jury deliberations. At the end of the first day of 

deliberations the jury reported to the judge that they could not 

reach a verdict. The judge determined that their deliberations 

had not yet been due and thorough, and released them, asking 

them to return the following morning. That decision was well 

within the judge's discretion. See G. L. c. 234, § 34; 

Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982). 

When the jurors returned to court and resumed their 

deliberations the following day, it appears that they wrote on 

 

defendant used excessive force." In large part this 

instruction is taken from Criminal Model Jury Instructions

for use in the District Court, Instruction 9.260 (2009).
17

the verdict slip that they could not come to a unanimous 

decision, but then scratched that notation out and replaced it 

with a finding of guilty, which they reported in open court. 

We agree with the Commonwealth that the scratched endorsement on 

the verdict slip is of no consequence given the unequivocal 

verdict that the jury voiced on the record. Commonwealth v. 

Powers, 21 Mass. App. Ct. 570, 571, 574-575 (1986).

6. Ineffective assistance of counsel. The defendant made 

a claim of ineffective assistance of counsel in his motion for a 

new trial. The motion judge, who also had been the trial judge, 

held an evidentiary hearing on the motion at which the 

defendant's landlord, defense trial counsel, and the defendant 

all testified. The judge denied the motion, and as she presided 

at trial, we afford her decision "special deference." 

Commonwealth v. Pillai, 445 Mass. 175, 185 (2005), quoting from 

Commonwealth v. Zagrodny, 443 Mass. 93, 103 (2004). 

The two-part test for ineffective assistance of counsel is 

familiar, that is "whether there has been serious incompetency, 

inefficiency, or inattention of counsel -- behavior of counsel 

falling measurably below that which might be expected from an 

ordinary fallible lawyer -- and, if that is found, then, 

typically, whether it has likely deprived the defendant of an 

otherwise available, substantial ground of defence." 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The motion 
18

judge determined that the claimed errors went to the issue of 

the dog's viciousness as a justification for the defendant's 

actions and concluded that any additional evidence on this issue 

"would not have substantially aided the defense." 

Specifically, the defendant faults counsel for failing to 

exclude testimony from the police officer that he "formed the 

opinion that the dog was in fact thrown over the railing by the 

defendant." Assuming without deciding that counsel could have 

successfully moved to exclude that opinion testimony, the error, 

if any, did not deprive the defendant of an otherwise available, 

substantial defense. The testimony merely summarized what could 

be fairly drawn from the uncontested evidence -- that is, that 

the defendant threw the dog onto the deck with force enough to 

cause its fall and resulting death. Contrary to the defendant's

assertion, the prosecutor's summation comment that the defendant 

"threw [the dog] off the balcony" was not based exclusively on 

the officer's unchallenged statement. The remark drew from a 

far broader swath of evidence, and was fair argument based upon 

the evidence. See Commonwealth v. Kozec, 399 Mass. 514, 516 

(1987); Commonwealth v. Dinkins, 415 Mass. 715, 725 (1993). 

Nor was counsel ineffective in her belief, as attested to 

at the motion hearing, that the photograph of Jaime's earlier 

injury, which counsel chose not to introduce in evidence, would

have undercut the graphic testimony concerning the severity of 
19

that injury. See Commonwealth v. Acevedo, 446 Mass. 435, 442 

(2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 

(1978) (only tactical decisions "manifestly unreasonable when 

made" and prejudicial are subject to relief). Finally the 

defendant's recasting of his arguments pertaining to the judge's 

exclusion of the photograph of Jamie's hand after the incident

and the landlord's testimony fare no better as claims of 

ineffective assistance of counsel. See Commonwealth v. 

Randolph, 438 Mass. 290, 295-296 (2002). The judge did not err 

in denying the motion.

Judgment affirmed.

Order denying motion for new

 trial affirmed.