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22-P-690 Appeals Court

COMMONWEALTH vs. MARYANN RUSSO.

No. 22-P-690.

Norfolk. March 8, 2023. – September 14, 2023.

Present: Massing, Hershfang, & D'Angelo, JJ.

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.

Tracey A. Cusick, Assistant District Attorney, for the 

Commonwealth.

Jason S. Bolio for the defendant.

HERSHFANG, J. This case asks us to determine whether a pet 

owner who declined to follow a veterinarian's recommendation 

that she euthanize her suffering, terminally ill dog may be 

charged with animal cruelty under G. L. c. 272, § 77. Because 

we conclude that the statute does not reach the defendant's 
2

conduct, we affirm the District Court judge's order dismissing

the criminal complaint.

Background. "Our review of the judge's order of dismissal 

is confined to the four corners of the application for 

complaint," Commonwealth v. Brennan, 481 Mass. 146, 147 (2018), 

quoting Commonwealth v. Ilya I., 470 Mass. 625, 626 (2015), 

which here consists of the application and five "supplemental 

narratives" by investigators. We summarize the information in a 

light most favorable to the Commonwealth. See Brennan, supra at 

149. On Christmas Day 2020, the defendant's family arrived at 

an animal hospital with a fourteen year old dog with a large 

mass on his side. The staff recommended that the dog have 

surgery to remove the mass. Rather than authorize the surgery, 

the defendant's family took the dog home. About three weeks 

later, on the evening of January 13, 2021, the defendant and her 

mother brought the dog back to the animal hospital.1 By this 

point, the dog was anemic, unable to stand or walk, and 

suffering from bed sores, and he had a necrotic mass on his side

as well as an open necrotic wound. The dog's breathing was 

1 The narratives about the visits to the animal hospital on

December 25, and January 13 through January 14, speak of "the 

owners" and "the Russos," without differentiating which acts 

were performed by the defendant and which by other members of 

her family. The complaint application establishes that the

defendant owned the dog, and she does not contest either her 

ownership or her identity. We therefore assume that she was 

properly named as the defendant.
3

labored. The veterinarian recommended humane euthanasia, 

opining that there was no way to control the dog's "super 

painful" condition. After leaving the dog at the animal 

hospital overnight, the family requested the previously 

recommended surgery to remove the mass. The veterinarian 

declined, saying that the dog probably would not survive. The 

defendant's family took the dog home, representing that a 

different veterinarian would euthanize him.

Suspecting that the family would not have the dog

euthanized, the veterinarian reported the defendant to the 

Animal Rescue League of Boston (ARL).2 The next day, the 

defendant contacted the ARL's law enforcement hotline and 

reported that the dog was in good health, eating, drinking, and 

beginning to act normal again. The defendant explained that she 

would not euthanize the dog because his health had improved and 

provided a telephone number for return calls. Beginning that 

day, and over the following weeks, the assigned ARL investigator

2 Veterinarians are obligated to report suspicions of animal 

cruelty to "a police officer or special state police officer 

appointed under section 57 of chapter 22C." G. L. c. 112, 

§ 58B. General Laws c. 22C, § 57, authorizes the colonel of the 

State police to appoint duly accredited agents of the ARL (among 

others) as "special state police officers" with "the powers of 

constables and police officers to arrest and detain any person 

violating any law for the prevention of cruelty to animals." We 

assume for purposes of this appeal that the ARL inspector was 

duly appointed.
4

repeatedly tried to reach the defendant by telephone and at 

home, leaving notices and messages, with no success.

On February 4, the ARL investigator returned to the 

defendant's home and was admitted by her mother.3 The 

investigator found the dog in the living room, lying on the 

couch on a piece of linen and wearing a diaper. The dog was 

still and stiff, taking periodic shallow breaths. He had raw 

sores on his legs and appeared thin, with a distended belly. 

When the investigator asked to see the mass, the defendant's 

mother turned the dog on his other side, causing the dog to gasp 

for air and exposing a large mass. In response to the 

investigator's comment that the dog was suffering and needed 

immediate medical attention, the defendant's mother displayed a 

bag of pills, saying that they were the dog's pain pills but 

that he no longer needed them. The family again declined to 

euthanize the dog or get him medical attention; the defendant's 

mother said that the dog would "die at home."4

3 Three family members were in the home, none of whom was 

the defendant. The defendant's mother identified the defendant 

as the dog's owner.

4 Though not included in the "four corners" of the complaint 

and not relevant to our analysis, the record shows that the 

investigator obtained a warrant, seized the dog, and had him

euthanized.
5

The defendant was charged with violating the animal cruelty 

statute, G. L. c. 272, § 77, and she moved to dismiss the 

complaint. The motion was allowed, and this appeal followed.

Discussion. 1. Standard of review. "In reviewing a 

motion to dismiss a complaint, the judge must decide whether the 

complaint application contains 'sufficient evidence to establish 

the identity of the accused and . . . probable cause to arrest 

[her].'" Commonwealth v. Humberto H., 466 Mass. 562, 565 

(2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163 

(1982). "This standard is 'considerably less exacting than a 

requirement of sufficient evidence to warrant a guilty 

finding.'" Brennan, 481 Mass. at 149, quoting Commonwealth v.

O'Dell, 392 Mass. 445, 451 (1984). "To establish probable 

cause, the complaint application must set forth 'reasonably 

trustworthy information sufficient to warrant a reasonable or 

prudent person in believing that the defendant has committed the 

offense.'" Humberto H., supra at 565, quoting Commonwealth v.

Roman, 414 Mass. 642, 643 (1993). "Whether the complaint 

application establishes probable cause is a question of law; 

thus, 'we review the motion judge's . . . determination de 

novo.'" Brennan, supra, quoting Humberto H., supra at 566. "We 

are in as good a position as a motion judge to assess the 

evidence submitted in support of the application for a criminal 

complaint, and we consider the evidence in the light most 
6

favorable to the Commonwealth without deference to the motion 

judge's factual findings or legal conclusions." Brennan, supra.

2. Animal cruelty statute. "In every question of 

statutory interpretation, we begin our analysis with the plain 

language of the statute." Commonwealth v. Escobar, 490 Mass. 

488, 493 (2022). It is a fundamental principle of statutory 

interpretation that

"a statute must be interpreted according to the intent of 

the Legislature ascertained from all its words construed by 

the ordinary and approved usage of the language, considered 

in connection with the cause of its enactment, the mischief 

or imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers 

may be effectuated."

Commonwealth v. Clinton, 491 Mass. 756, 766 (2023), quoting 

Oracle USA, Inc. v Commissioner of Revenue, 487 Mass. 518, 522 

(2021).

"[E]ach clause or phrase is to be construed with reference 

to every other clause or phrase without giving undue 

emphasis to any one group of words, so that, if reasonably 

possible, all parts shall be construed as consistent with 

each other so as to form a harmonious enactment effectual 

to accomplish its manifest purpose."

Commonwealth v. Paul, 96 Mass. App. Ct. 263, 268-269 (2019), 

quoting Selectmen of Topsfield v. State Racing Comm'n, 324 Mass.

309, 312-313 (1949). "[N]one of the words of a statute is to be 

regarded as superfluous" (citation omitted). Commonwealth v.

Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass.

617, 618 (1967).
7

Against that analytical backdrop, we focus on the words 

chosen by the Legislature. Most of the statute is devoted to 

criminalizing specific acts of cruelty against animals. It 

begins a long list of prohibited conduct with, "Whoever 

overdrives, overloads, drives when overloaded, overworks, 

tortures, torments, deprives of necessary sustenance, cruelly 

beats, mutilates or kills an animal," and further criminalizes 

the action of "us[ing] [an animal] in a cruel or inhuman manner 

in a race, game, or contest, or in training therefor," or 

"inflict[ing] unnecessary cruelty upon [an animal], or 

unnecessarily fail[ing] to provide it with proper food, drink, 

shelter, sanitary environment, or protection from the 

weather . . . ." G. L. c. 272, § 77.

After these specific prohibitions comes the language at 

issue in this case, which imposes criminal penalties on anyone 

who, "having the charge or custody of an animal . . . knowingly 

and willfully authorizes or permits it to be subjected to 

unnecessary torture, suffering or cruelty . . . ." G. L. 

c. 272, § 77. This language is distinct from the preceding 

portion of the statute in at least two ways. First, it requires

a "knowing" and "willful" mental state to trigger liability. 

See Commonwealth v. Erickson, 74 Mass. App. Ct. 172, 176 (2009), 

cert. denied, 558 U.S. 1153 (2010) ("The heightened mental state 

of 'knowing' and 'willful' conduct was included by the 
8

Legislature only in two portions of G. L. c. 272, § 77, . . .

[including] where someone 'knowingly and willfully authorizes or 

permits [an animal] to be subjected to unnecessary torture, 

suffering, or cruelty . . .'").

Second, it criminalizes the conduct of one who has charge 

of an animal but, rather than inflicting the harm directly, as 

in the preceding proscriptions, "authorizes or permits" the 

animal "to be subjected to" harm. G. L. c. 272, § 77. The 

passive construction stands in stark contrast to the active 

voice of the other verbs in the statute. Unlike those verbs, 

"subjected to" identifies no actor. Yet there must be one. "I 

was subjected to a grueling cross-examination" makes sense, 

while "I was subjected to a herniated disc" does not. See The 

American Heritage Book of English Usage 46 (1996) ("In the 

passive voice . . . [t]he person or thing that is acted upon 

becomes the subject, and the performer of the action gets put in 

a prepositional phrase beginning with by or is omitted from the 

sentence altogether"). "Subjected to" was added in 1868 and has 

been included in all subsequent versions of the statute.5

5 See St. 1868, c. 212, § 2; St. 1869, c. 344, § 2; P.S. 

(1882), c. 207, § 53; R.L. (1902), c. 212, § 70; G. L. c. 272, 

§ 77. Tellingly, the 1869 revision struck a provision from the 

1868 statute that criminalized the act of a custodian who 

authorized or permitted an animal "to suffer unnecessary torture 

or cruelty." In addition to striking the phrase "to suffer,"

the statute was revised to add "suffering" between "torture" and 

"cruelty." St. 1869, c. 344, § 2. This change supports our 
9

Because we "presume, as we must, that the Legislature 

intended what the words of the statute say," Commonwealth v.

Williamson, 462 Mass. 676, 679 (2012), quoting Commonwealth v. 

Young, 453 Mass. 707, 713 (2009), we accept that, by the 

language at issue here, the Legislature deliberately chose to 

criminalize only situations where someone (or something) 

"subjected" the animal to the harm at issue. See, e.g., 

Commonwealth v. Turner, 145 Mass. 296, 299 (1887) (evidence 

sufficient to go to jury where defendant custodian of fox let it

loose to be hunted by dogs, who "caught [fox] and mangled it");6

Commonwealth v. Thornton, 113 Mass. 457, 458 (1873) (indictment 

charged crime through allegation defendant "knowingly and 

wilfully suffer[ed] and permit[ted] [a] dog to be bitten, 

mangled and cruelly tortured by a certain other dog"). We have 

not found, nor have the parties cited, a case in which a 

person's failure to intervene with the complicated, 

heartbreaking, painful end of an animal's life has been 

interpreted as "subjecting" an animal to statutorily prohibited

interpretation that the Legislature intended criminal liability 

to lie only when the animal was "subjected to" the harm, rather 

than simply "suffering" the harm.

6 The statute then in effect, P.S. (1882), c. 207, § 53,

criminalized, in pertinent part, the actions of an "owner, 

possessor, or person having the charge or custody of an animal, 

who . . . knowingly and wilfully authorizes or permits it to be 

subjected to unnecessary torture, suffering, or cruelty of any 

kind . . . ."
10

harm.7 We decline to extend the statute in this way. In so 

deciding, we rule only on the facts of the case before us and 

express no opinion whether, in a different situation, depriving 

an animal of medical care might violate the statute.8

Conclusion. For the foregoing reasons, we affirm the order 

allowing the defendant's motion to dismiss the criminal 

complaint.9

So ordered.

7 The Commonwealth resists the notion that it charged the 

defendant because she failed to euthanize the dog, noting 

instead that the complaint alleged broader criminal conduct,

that of permitting unnecessary torture or suffering by not 

treating the dog's pain and labored breathing. Although this 

position rings discordantly against the facts as argued at the 

hearing by the Commonwealth -- the veterinarian "recommended 

humane euthanasia . . . because this [fourteen year old] dog's 

pain could not be controlled" -- we need not address this 

argument given our conclusion that the complaint did not allege 

a crime contemplated by the statute.

8 Between 1982 and 2010, the Legislature considered and 

rejected at least three bills that would have criminalized the 

defendant's conduct. See House Doc. No. 1303 (Jan. 13, 2009); 

House Doc. No. 1339 (Jan. 10, 2007); House Doc. No. 865 (Jan. 6, 

1982). We recognize that "[w]e do not draw conclusions 

concerning the intent of the Legislature based on the failure to 

enact a subsequent amendment," Cook v. Patient Edu, LLC, 465 

Mass. 548, 555 n.14 (2013), and note these proposed amendments 

solely as background.

9 The defendant seeks leave "to file the appropriate 

affidavits and other information" supporting her request for 

appellate attorney's fees and costs. In compliance with Mass. 

R. Crim. P. 15 (d), as amended, 476 Mass. 1501 (2017), the 

defendant may do so within thirty days of the issuance of the 

rescript. See Commonwealth v. Ennis, 441 Mass. 718, 720 (2004); 

Commonwealth v. Santos, 99 Mass. App. Ct. 360, 365 (2021).