Commonwealth v. Daly (Lawyers Weekly No. 11-104-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 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 […]