-: SJC-13638.
Commonwealth B. Robin B. Adams.
Attorney Faulkner.
-: Good morning. May it please the court.
This is a case where the defense
presented evidence in support of two defenses.
The animal cruelty statute
requires a finding that there be no justifiable cause.
And that comes straight out of Commonwealth versus Zaleski
and Commonwealth versus Lufki, Lufkin, I'm sorry.
And in this case, there was presented a request
for jury instructions that were consistent
with the defense evidence that was presented.
Those were defense of another animal
and bonafide discipline of the animal.
The defendant testified in his own defense
that that was his purpose.
There was also evidence from other sources
that corroborated that.
So for instance, the three witnesses,
fact witnesses for the Commonwealth
testified that the defendant
was punching his dog repeatedly.
But the defendant testified
that he was not punching the dog with force.
He testified that he was using
what he had been trained to do in martial arts,
which is light or point contact
-: Counsel, could I go back to your first stated reason?
So the two bases that you gave,
or at least that were presented to the trial Judge,
let's start first with the defense of another animal.
Do you need case law that says
you can come to the aid of a wild undomesticated animal?
-: Well, there isn't a case that says that
in the Commonwealth. -: So what would be
the basis to say I should be able to
adduce expert testimony on a theory that has never been,
at least as far as I could find,
any authority in Massachusetts
or really anywhere to say that that's a reasonable basis
to say the jury should be given evidence
in terms of an expert on that?
-: Well, first of all,
the expert testimony didn't only go to that defense-
-: Sure, but I'm asking you to...
I'm going to that particular prong of the defense.
-: So in terms of the defense of another,
the Commonwealth points out that there are three states
that do build in defense of another animal
into their case law without regard to any specific animal.
The Massachusetts statute simply talks about justification.
And the question is whether that's a common law defense.
It hasn't been raised, it has also not been found
to be an incorrect defense.
And I think when we look at the case law
around defense of another person, self-defense,
these are justifications
that deal with competing harms.
And here if the competing harm is to prevent
a wild animal from being killed using some amount of force,
no more than necessary, of course.
And that's what was requested in that jury instruction.
-: But that's at the end of trial, right?
So we're talking, I'm assuming you agree
that we're talking about an abuse of discretion standard
on the trial judge either giving it or not giving it.
-: Well, I don't agree.
It depends if the, in terms of a jury instruction,
if any view of the evidence supports the instruction
and the instruction is correct as a matter of law,
then it must be given.
That's not an abusive discretion standard,
that would be a de novo standard in this court.
-: Well, there's a lot of ifs in that.
So I guess again going back,
the evidence at least that in the light most favorable
to the Commonwealth,
suggests that they did not find any blood on Bodhi
to support at least the testimony
or the view of your client
that there was this kind of bloody back and forth
such that he had to intervene
on behalf of the whatever the animal was.
Does that play into the judge's discretion
in whether or not the evidence fits
to give that kind of an instruction?
-: No, your Honor.
And the reason is because the evidence is not viewed
in the light most favorable to the Commonwealth
when we're dealing with jury's instructions.
It's viewed in the light most favorable to the defendant.
-: But isn't the jury instruction
that you've got broader than the one you're requesting?
Any justification is enough.
So what are you accomplishing
by sort of putting in these particularities,
when you can rely on anything your client was doing
that was justified is enough?
-: Well, that's the argument that the Commonwealth makes.
And I think the problem with that argument
is the jury is left entirely unguided
with respect to what is an adequate justification
under the law.
-: But I assume like in closing,
you're saying he was justified in protecting his,
or I can't remember if we're protecting the hedgehog
or we're protecting your dog,
but he's justified in how he behaves here, right?
-: Right. So that's the closing argument.
But the problem is that the jury is never instructed
that if they believe that that's true,
that that is an adequate justification under the law.
The jury's just left to decide whether they believe
that it's justified.
And that's not really the standard
that the jury's to be implying.
If there is a justification under the law,
the jury needs to be given that
so that they can determine
whether the defendant has met that justification or not.
Not simply whether they believe
that that's justification or not.
-: Counsel, going back to viewing the evidence,
as you suggested in the light most favorable
to the defendant.
Can you explain why this particular instruction,
and I'm still focused on the defense
of an animal instruction,
was warranted if it even were available at law?
Where if I'm not misunderstanding the testimony,
the defendant himself testified
that he had already separated his dog
from the groundhog at the time
he was doing the disputed strikes.
-: Well, he had separated the dog,
but the dog also had gotten away from him
and was trying to get away from him
and get back to the groundhog.
And I think that also goes back,
and this is where I think both of these two issues
do interplay with each other,
is it also goes back to the issue of the expert testimony.
So the defense was deprived of the testimony
that this is a dog that had a high prey drive.
And had the jury been given that additional evidence
that the dog is a high prey drive,
that is something that would've also supported it.
And if we look through the expert report,
Ms. Puff talks about the tunnel vision that the dog has,
that a dog with a high prey drive has,
and that it takes something more to snap the dog out of it.
And that's why simply that's separating-
-: How does a vet tech know anything about a high prey drive?
That sounds like something required for a scientist
or at least a veterinarian.
I mean, she helps take care of dogs
when they arrive at the vet.
She doesn't know anything about their prey drives.
-: Well, she has training and experience though
in giving these safer behavioral assessments,
and she has done those behavioral assessments,
and we're talking about determining which dogs get-
-: A pray drive is something
that requires background knowledge, right?
It's not just whether the dog is jumpy at the vet, right?
-: I mean, correct.
But veterinarians and a vet tech
who is working in a veterinarian's office
have to determine which animals
can be in which room together.
They have to make those kinds of judgements all the time.
So she's doing behavioral assessments
in terms of which animals can go to which homes
and has been doing that for a very long time,
but is also dealing with animals
on a day-to-day basis in a clinical setting
where there are multiple animals
and they have to deal with these kinds of issues.
-: Counsel, help me on the report.
Did she outline specific experience
with this breed of dog?
-: She did not specifically talk about experience
with this particular breed of dogs.
-: So let me stop you there.
So isn't one of the factors under Daubert-Lanigan
that you can apply it to the facts and circumstances here?
So even if the trial judge
credited that perhaps she did these behavioral things
in general, would that necessarily inform
whether or not it, whatever she had to say
would be helpful about this breed of dog?
-: [Attorney Faulkner] Well, I think that would go
to the weight of the evidence.
-: That's not an admissibility factor?
-: I think that that is beyond an admissibility factor
because if she's to the point
where she can make a determination
about the different behaviors of various animals,
the jury can determine whether they believe that
in this case.
But I think the key question as to the gatekeeper function
is simply whether she has the experience to do it at all.
And I would suggest that it's not just,
the trial judge I think talks about
how she doesn't have the education
to make these determinations,
but the expert testimony cases in this court
go well beyond simply education
and clearly recognize that training and experience
are significant factors
and can lead to the admissibility of evidence
that a core category of expertise that's based on training
and experiences.
Of course, police officer expert testimony,
which is regularly admitted within the Commonwealth.
And so this is somebody who has, again,
a long history of both assessing injuries,
determining and triaging injuries,
and also performing behavioral assessment.
So I think that goes to both prongs of the expert.
And I would just add that even if one prong
of the expertise was determined to be excluded,
that doesn't mean that the other one needs to as well.
And so even if this court determined
that it was proper to exclude the evidence
as to the prey drive,
it's still important that her testimony
as to the pain response.
And the Commonwealth in the trial court
kept characterizing that as pain tolerance.
And that's not at all what was being proffered.
It was pain response.
And the reason that that was an important
piece of testimony in the trial court is
because what the expert opinion was seeking to demonstrate
to the court is not that the dog was necessarily
in any more or less pain than any other dog,
but because the dog had demonstrated a pain response
with regard to one area of its body,
that means that that's the kind of dog
that you can elicit a pain response from,
doesn't have anything to do
with necessarily whether the dog's feeling the pain,
but the dog when it's examined by the veterinarian
who also did testify-
-: I'm confused.
So the veterinarian gives a very favorable testimony
to your client saying there's just no injuries,
no apparent injuries to the head,
which is where your client was supposedly pounding the dog.
-: [Attorney Faulkner] Right.
-: So there are no injuries there.
What's the value of the pain response point?
It doesn't enhance anything, right?
-: Well, I disagree because,
it's simply because there aren't,
there's no brain injuries.
She does a neurological inquiry-
-: Oh, there's no bruising, no swelling, nothing.
I mean that supports your client.
The jury clearly didn't find that compelling,
but it supports your client's view
that he did just what he said,
which is that sort of abbreviated punch
that he's talking about.
-: Right, but a jury could find
that even though there weren't injuries,
the dog was in pain.
And I think- -: Can I ask you about the...
It seems like your client is trying
to have its cake and eat it.
And maybe these are jury issues,
but it goes to prejudice as an overall.
So we basically have a scenario where he says
he has to make these heroic steps to save the groundhog
even after the groundhog is away.
So he has to discipline the dog.
And then he says, well, I had to discipline the dog
and it has a high prey drive,
so I have to really, like any self-defense,
use necessary force.
But I just pull my punches 'cause I'm a karate guy.
It seems like there's a prejudice issue
that these things, these thoughts are contradictory,
and it seems that although you may be right,
there's a lack of prejudice because of that contradiction.
-: I'm not sure that's right
because I'm not sure that there is
quite the inherent contradiction
that your Honor suggests.
And at any rate, I think that is something
for the jury to determine.
But he testifies that what he's trying to do with these
is snap the dog out of it, to get his attention.
And that that is a way that he's learned
that the dog will respond to that.
So he's doing that to elicit the response.
And it's consistent with the veterinary testimony.
His testimony about pulling the punches is more consistent
with the veterinary evidence, obviously,
than the witness testimony
because they testify that he's hitting the dog with force
up to 10 times.
And there's no evidence, even though both the veterinarian
and the vet tech testified that there would be
both physical injuries and neurological injuries,
there's nothing of the sort.
So that leaves the jury, again,
simply in determining whether the dog may have been in pain.
And that I think goes back to, again,
the pain response testimony would've been necessary
and appropriate and supportive of the defense.
-: Are you, so you're basically saying,
correct me if I'm wrong,
that if the jury instruction had been given
that it's amount of force as necessary that fits the bill.
-: I think that that would've assisted the defense.
It was consistent with the law
and that denying the jury,
that jury instruction deprived the defendant of his defense.
-: So just justifiable doesn't do
what that jury instruction would give?
-: [Attorney Faulkner] Excuse me.
-: Just saying justifiable
doesn't give the flavor of self-defense, essentially.
-: Correct.
Because it's just an open-ended justifiable
where the jury is just weighing whether they think
it was an appropriate action or not
as opposed to whether the law protects that kind of action.
-: Do you think that the jury's verdict
necessarily indicates that they did not credit
your client's testimony about pulling back on the punches?
-: [Attorney Faulkner] It certainly is possible.
-: What other explanation could there be
for the verdict?
I mean, isn't that necessarily
an embedded factual determination in this verdict?
-: So I think that the jury
doesn't have to necessarily discredit that.
If the jury finds, again,
and I would liken it to assault and battery case law.
You don't have to prove injuries
for an assault and battery.
Any amount of pain is enough.
If it's a harmful contact,
we have serious bodily injury answers for it, right?
So if the jury finds that there's some pain
that comes with this contact,
that might have been enough for them to determine
that that's appropriate to the verdict.
And again, I think that's where being given
the justifications, particularized justifications,
it might have made a difference in the case.
-: [Justice Wolohojian] Okay. -: No further questions?
-: [Justice Wolohojian] Thank you.
-: Okay, Attorney Cohen.
-: Good morning.
May I please the court, Jennifer Cohen
for the Commonwealth.
The Commonwealth argues that the instruction
as given at the trial was adequate.
And in fact, the instruction as to justification
or the definition of animal cruelty
is so broad and is very favorable to the defendant as it is.
While there may be some reason for elaborating on-
-: How do we know it's so broad?
I mean, you know, we incorporate
all these sort of standard instructions.
It provides definition,
But why, how does the jury know what's justifiable here
without sort of further clarification?
-: I mean, I think the way that this is worded
is any justification.
And I think that the defendant also raised the defenses
that he's now working.
Justice Gaziano: It's a complete defense, correct?
-: Yes, your Honor. It's a-
-: All right, if this was a person case...
Attorney Cohen: Yeah.
-: And the judge didn't instruct on assault on self-defense,
would you be standing here
or would just concede error?
-: Well, I think that even if an instruction-
Justice Gaziano: I think the answer's probably yes,
correct?
-: Potentially yes.
But I do think that in these particular circumstances,
even if this court were to decide
that the instruction should have been given,
and it was our not to give it,
I would still argue
that there was no prejudice to the defendant
given that the definition of cruelty was read three times.
The jury was instructed very thoroughly
on the fact that this was the-
-: Before we move to prejudice, though,
I just wanna, 'cause you know,
this is sort of a Pandora's box.
Are we gonna have agitant evidence here?
Are we gonna, I mean, how far are we gonna go
with all of this?
Are we gonna incorporate all of the people defenses
and subtleties to it?
-: Sure.
And your Honor, that's why the Commonwealth
is also arguing that this is a determination
that's better left to the legislature.
I think that the legislature has demonstrated an interest
in the area of animal cruelty.
The recent task force provided recommendations,
which pretty much exclusively pertained to education
as a recommendation, not-
-: Do we need to provide some more clarity
about what justification means, or is it self-explanatory?
-: I think it's left to the jury to decide
what a justification is.
I just, I would argue that allowing
these kinds of defenses to be raised in animal cruelty cases
raise questions of public policy
that I'm not sure Massachusetts is interested in promoting.
-: Well, I guess if there were a reason for the clarity,
I certainly think this is one case that highlights that.
I mean, are we going to, I mean,
if it were domestic, if they were a dog park
and it was another domesticated dog
that the Bodhi took after,
I don't think there would be much in debate that
yeah, you've gotta stop that, right?
I mean, you've gotta intervene.
And if we're talking about a wild animal,
I don't know that that's necessarily
in the same neighborhood.
And wouldn't that have been something
that could have been the clarity
that perhaps the justification needed?
-: Sure.
And I think though your Honor's,
raising of these kind of hypotheticals
is kind of part of the problem here.
I agree that if we were talking about a fight
between two dogs, that an instruction on bonafide discipline
or defense of another may have been more warranted.
But I think once you start looking at,
I guess the instruction that my brother is requesting
is defense of a wild animal.
And I think-
-: Well, he's requesting two.
Justice Dewar: Sure, sure.
I guess defense of,
but the instruction on defense of another animal
is defensive, basically any animal.
It's not just-
-: But is the animal cruelty statute limited to...
Doesn't it extend to all animals?
-: It it does, your Honor.
But I think this instruction as requested,
leaves us in a situation
where a person can punch a bird
and then claim that they were defending a worm
from being eaten.
I think this instruction could potentially apply
to all sorts of circumstances
that I'm not sure that the Commonwealth
would want the defense to be applicable.
I think this-
-: What about the bonafide discipline instruction?
Why wouldn't that be appropriate?
I see why the wild animal versus domesticated animal defense
might require a policy decision.
But what about the bonafide discipline?
-: So I think comparing this to
the parental discipline instruction, you know,
the three prongs that the Commonwealth must disprove
beyond a reasonable doubt, probably could be translated
into the area of animal cruelty.
However, there are two paragraphs that follow
that outline the factors
that the jury should consider
when deciding whether force used as reasonable
or reasonable in the circumstances.
And I'm not sure that those paragraphs necessarily translate
to the world of animals.
I'm not sure of that.
And I think once an instruction is given,
using those sorts of factors,
that puts something in the jury's head
that I'm not sure should be there.
I think, you know, it's talking about the age of the child.
It's a mental-
-: So you're fine with the three-pronged durable test?
Attorney Cohen: I think that potentially-
-: But not the subsequent instructions
that follow the two paragraphs?
-: Yes, and I think that perhaps
elaborating on the instruction at least
of defense of another animal
could be more protective of victims of animal cruelty.
-: But sticking with the bonafide discipline,
your position is that the adoption
of the durable three pronged standard,
without the subsequent paragraphs, would be permissible?
-: I think that you would,
I think that that would also be better left
to the legislature.
-: [Justice Wendlandt] Why? -: Because I think
those factors of reasonability in the context
of animal cruelty need to be looked into further.
I think that-
-: Well, isn't that what the Zaleski
and the Lefkin cases already provide?
Attorney Cohen: Sure.
-: So it seems to be part of our law already.
And the three factors, I mean of the three factors,
do any of those not really codify the Lutkin standard?
-: So I think the other point, your Honor,
is that that is a case from the 1800s
and it pertains to horses-
-: Right, but Zaleski is 2009
and mean, granted, it's the appeal score, not the SJC,
but still, it's binding law.
-: And I think the instruction given there
was fairly perfunctory.
And that bonafide discipline is a defense
was the only instruction that was given.
So I would agree that is a defense.
I would just say that the instruction as written now
adequately covers any justification whatsoever.
And to elaborate further
and to create parameters
that a jury is now going to be considering
is something that should be left to the legislature
because of those various factors later on.
We need to decide whether bonafide discipline,
if that instruction can apply to any animal
that a person might own.
Does that apply to a horse, a snake, a dog?
-: [Justice Wendlandt] Well, I mean, Lufkin was a horse.
-: Sure. -: [Justice Wendlandt] Yeah.
-: Yep.
But again, the only instruction given
is that bonafide discipline is a defense.
-: [Justice Wendlandt] But that was given here?
-: In Lufkin.
-: I know, but was that given in this case?
Attorney Cohen: No, any justification for.
-: Okay. And the instruction that was requested was?
-: Akin to Lufkin.
-: [Justice Wendlandt] Okay. And that was not given?
-: That was not given.
And I would also note, your Honor,
that at this stage it does appear that
my brother is asking for an instruction
more akin to parental discipline-
-: But your fallback is that the requested instruction,
which doesn't have the dorville three factors
would've been proper.
-: I think it is a defense.
I think that it was within the judge's discretion
to provide or not provide that instruction.
I think the instruction given adequately addressed
any justification.
-: And how would the judge exercise that discretion?
What are the factors that the judge would need
to determine, in determining whether
to give a Lufkin life instruction that was requested here?
-: Well, I think here,
looking at the evidence in the light most favorable
to the defendant-
-: [Justice Wendlandt] Yes.
-: I would argue that the defenses weren't raised.
I would argue that the,
even the defendant's testimony wasn't supportive
of either of the defenses.
-: It wasn't supportive of bonafide discipline?
I mean, he's walking away from the dog
saying, I, you know, the dog will follow it.
Turns out the dog has this high prey instinct apparently,
and won't listen.
And so then he captures the dog and pretends to punch him.
-: Sure, and if your Honor disagrees with that position,
I do think nonetheless there was no-
-: But just applying the test that you've articulated.
Viewing the facts in the light most favorable
to the defendant,
he was raising a bonafide discipline defense.
Wouldn't you agree?
-: I would argue that he perhaps raised bonafide discipline.
I don't think that he raised defense of another.
-: [Justice Wendlandt] Okay. -: But then I would say
that even in those circumstances,
there was no prejudice to him,
given the fact that the definition of cruelty
was read multiple times, that the burden was-
Justice Dewar: But wasn't that read multiple times,
as I recall, because the jury repeatedly asked?
-: Yes.
-: Doesn't that indicate some question
on the jury's part about what the law
that they were supposed to apply was?
-: Sure, and I think the way that the instruction is written,
I would concede that it is a bit confusing
that the definition of animal cruelty
comes so late in the instruction.
I think that if that were given at the outset,
as it appears to apply to the entirety of the instruction,
that would perhaps be a better way to instruct the jury.
But I do think that part of what the foreperson said
was something to the effect of,
can you give us the definition
of what we're looking for?
I think it was clear that that applied to the entirety
of the instruction.
That was what they were looking for.
They knew that it was the Commonwealth's burden
to prove that there was animal cruelty
beyond a reasonable doubt.
And so-
-: Counsel, if you take those two things though,
it really then dovetails into the issue about the expert.
Because if they have all these questions
about what animal cruelty is,
and he is raising a bonafide discipline defense,
what I'm struggling with in this case is it did not,
at least the evaluation of his potential expert testimony.
So if we know one of the reasons
why we allow expert testimony
is it's helpful to the jury
and they have all of these questions.
Wouldn't it have been helpful to the jury
to hear from this expert?
Whatever weight they wanted to give to it was one thing,
but to helpful, because it helps inform the animal cruelty
and the bonafide discipline defense
if they hear, hey, this dog has no off button
once he gets kind of in a lather.
And the Commonwealth didn't raise emotion in limine.
It happened midstream.
The witness was on the witness stand.
How do we use all of that in engaging
the abusive discretion here
because the defendant was left kind of flatfooted.
-: Respectfully, I disagree, your Honor.
I do think that it would've been better
if the issue had been raised in the motion in limine phase
or if a voir dire had been conducted of the expert.
Nonetheless, I think the testimony that was given
by the Ms.Puff and her CV didn't indicate in any way
that she would be qualified to testify to pain response
or neurology or animal behavior.
I do think that she mentioned that the safer assessments,
I think that's in her report.
But when you look back at her CV,
it's clear that she was conducting those assessments
in 2013 and 2014.
So I do agree it would've been better to address this
more fully out of the earshot of the jury.
But I do think, given the fact that her testimony,
didn't, what she was gonna testify
didn't seem to come within the purview
of her actual expertise or her day-to-day work.
I think it was in the judge's discretion
to exclude her testimony as an expert
on those specific points.
But even if the court disagrees with that,
I do think that exclusion of the testimony here
is harmless beyond a reasonable doubt.
Because the testimony about pain response
essentially would've been cumulative
to what the veterinarian testified,
where she testified that the only pain that the dog
seemed to be feeling was in its foot.
There were no other physical injuries to the dog.
And I think she also testified
that it would be very unlikely for any injuries
to appear more than 24 hours after an incident.
So I think as far as pain response goes,
that was extremely favorable evidence for the defendant
and essentially covered that portion of Ms.Puff's testimony.
And I think as far as the prey drive,
I would still say that the Commonwealth witnesses
were all consistent in the fact that the dog
wasn't listening, was fixated on something.
It was clearly being disobedient.
I think the Commonwealth's testimony was consistent
with the defendant's theory there.
And so, again, I think that where Ms. Puff wasn't allowed
to testify as an expert,
the defendant wasn't losing out on that as a defense.
-: The one thing, so the definition of cruelty,
it's severe or unnecessary, right?
It helps clarify the meaning of justifiable cause.
But I take it, the argument is you don't know how much pain
you need to inflict to shut the dog down.
And by excluding the prey drive
and this other stuff, you're,
the jury has a difficult call
if it credited the defendant, you know?
Right? It's a tough...
How much is enough to shut the dog down?
-: I would disagree.
And I would say that- Justice Kafker: Go ahead.
-: Even fake punching a dog
would be a very unreasonable action.
-: Really?
If he was telling the truth
and these fake punches would shut the dog down
without hurting the dog, isn't that a good defense?
I mean, he gets himself into a problem
when he talks about all the blood on the different animals
and there's no blood anywhere.
But if it's true and he's punching the dog
without touching the dog,
that seems pretty good, right?
-: I think using a scare tactic
to discipline something is unreasonable.
I think we would not be supportive of that
if it were a child.
Justice Kafker: I know, but a dog's not a child.
A dog is- -: No, it's not.
But it's the living thing.
And I think that fake punching as a scare tactic
is not a reasonable way of disciplining an animal,
especially where he could have easily just used his hand
to put the dog on a leash instead of fake punching.
-: But isn't that a classic jury question?
Whether it is or not is not reasonable
to discipline your dog by fake punching it?
-: And I think where the jury were instructed is that
there could be any justification
for this defendant's actions,
I would agree with Justice Wallahogan
earlier stating that I think that the jury
did not credit the defendant's testimony.
I think that was what was found in their verdict.
I don't think they credited that this was fake punching.
And I think even if they did think it was fake punching,
it was a question for the jury,
but I think they didn't credit the defendant here.