WEBVTT
1
00:00:00.000 --> 00:00:02.790
SJC-13638.
2
00:00:02.790 --> 00:00:05.733
Commonwealth B. Robin B. Adams.
3
00:00:07.230 --> 00:00:08.283
Attorney Faulkner.
4
00:00:09.840 --> 00:00:13.650
Good morning. May it please the court.
5
00:00:13.650 --> 00:00:17.490
This is a case where the defense
6
00:00:17.490 --> 00:00:22.470
presented evidence in support of two defenses.
7
00:00:22.470 --> 00:00:24.660
The animal cruelty statute
8
00:00:24.660 --> 00:00:29.660
requires a finding that there be no justifiable cause.
9
00:00:29.730 --> 00:00:34.730
And that comes straight out of Commonwealth versus Zaleski
10
00:00:35.010 --> 00:00:40.010
and Commonwealth versus Lufki, Lufkin, I'm sorry.
11
00:00:41.250 --> 00:00:45.120
And in this case, there was presented a request
12
00:00:45.120 --> 00:00:47.550
for jury instructions that were consistent
13
00:00:47.550 --> 00:00:51.000
with the defense evidence that was presented.
14
00:00:51.000 --> 00:00:54.070
Those were defense of another animal
15
00:00:54.930 --> 00:00:59.103
and bonafide discipline of the animal.
16
00:01:00.450 --> 00:01:02.700
The defendant testified in his own defense
17
00:01:02.700 --> 00:01:04.950
that that was his purpose.
18
00:01:04.950 --> 00:01:09.240
There was also evidence from other sources
19
00:01:09.240 --> 00:01:11.070
that corroborated that.
20
00:01:11.070 --> 00:01:13.620
So for instance, the three witnesses,
21
00:01:13.620 --> 00:01:15.870
fact witnesses for the Commonwealth
22
00:01:15.870 --> 00:01:17.250
testified that the defendant
23
00:01:17.250 --> 00:01:19.533
was punching his dog repeatedly.
24
00:01:20.460 --> 00:01:21.870
But the defendant testified
25
00:01:21.870 --> 00:01:24.300
that he was not punching the dog with force.
26
00:01:24.300 --> 00:01:27.540
He testified that he was using
27
00:01:27.540 --> 00:01:29.610
what he had been trained to do in martial arts,
28
00:01:29.610 --> 00:01:31.860
which is light or point contact
29
00:01:31.860 --> 00:01:34.920
Counsel, could I go back to your first stated reason?
30
00:01:34.920 --> 00:01:38.580
So the two bases that you gave,
31
00:01:38.580 --> 00:01:41.520
or at least that were presented to the trial Judge,
32
00:01:41.520 --> 00:01:44.460
let's start first with the defense of another animal.
33
00:01:44.460 --> 00:01:47.520
Do you need case law that says
34
00:01:47.520 --> 00:01:52.520
you can come to the aid of a wild undomesticated animal?
35
00:01:52.890 --> 00:01:55.055
Well, there isn't a case that says that
36
00:01:55.055 --> 00:01:56.370
in the Commonwealth.
So what would be
37
00:01:56.370 --> 00:02:00.031
the basis to say I should be able to
38
00:02:00.031 --> 00:02:05.031
adduce expert testimony on a theory that has never been,
39
00:02:06.000 --> 00:02:08.190
at least as far as I could find,
40
00:02:08.190 --> 00:02:10.110
any authority in Massachusetts
41
00:02:10.110 --> 00:02:14.340
or really anywhere to say that that's a reasonable basis
42
00:02:14.340 --> 00:02:17.340
to say the jury should be given evidence
43
00:02:17.340 --> 00:02:18.963
in terms of an expert on that?
44
00:02:20.520 --> 00:02:22.950
Well, first of all,
45
00:02:22.950 --> 00:02:25.470
the expert testimony didn't only go to that defense-
46
00:02:25.470 --> 00:02:27.345
Sure, but I'm asking you to...
47
00:02:27.345 --> 00:02:32.310
I'm going to that particular prong of the defense.
48
00:02:32.310 --> 00:02:33.810
So in terms of the defense of another,
49
00:02:33.810 --> 00:02:36.570
the Commonwealth points out that there are three states
50
00:02:36.570 --> 00:02:39.150
that do build in defense of another animal
51
00:02:39.150 --> 00:02:44.150
into their case law without regard to any specific animal.
52
00:02:44.520 --> 00:02:48.630
The Massachusetts statute simply talks about justification.
53
00:02:48.630 --> 00:02:51.660
And the question is whether that's a common law defense.
54
00:02:51.660 --> 00:02:55.830
It hasn't been raised, it has also not been found
55
00:02:55.830 --> 00:02:58.620
to be an incorrect defense.
56
00:02:58.620 --> 00:03:02.880
And I think when we look at the case law
57
00:03:02.880 --> 00:03:06.810
around defense of another person, self-defense,
58
00:03:06.810 --> 00:03:08.460
these are justifications
59
00:03:08.460 --> 00:03:11.460
that deal with competing harms.
60
00:03:11.460 --> 00:03:14.610
And here if the competing harm is to prevent
61
00:03:14.610 --> 00:03:18.300
a wild animal from being killed using some amount of force,
62
00:03:18.300 --> 00:03:20.334
no more than necessary, of course.
63
00:03:20.334 --> 00:03:23.730
And that's what was requested in that jury instruction.
64
00:03:23.730 --> 00:03:25.320
But that's at the end of trial, right?
65
00:03:25.320 --> 00:03:27.660
So we're talking, I'm assuming you agree
66
00:03:27.660 --> 00:03:30.450
that we're talking about an abuse of discretion standard
67
00:03:30.450 --> 00:03:35.010
on the trial judge either giving it or not giving it.
68
00:03:35.010 --> 00:03:36.150
Well, I don't agree.
69
00:03:36.150 --> 00:03:40.761
It depends if the, in terms of a jury instruction,
70
00:03:40.761 --> 00:03:44.220
if any view of the evidence supports the instruction
71
00:03:44.220 --> 00:03:47.280
and the instruction is correct as a matter of law,
72
00:03:47.280 --> 00:03:48.870
then it must be given.
73
00:03:48.870 --> 00:03:50.730
That's not an abusive discretion standard,
74
00:03:50.730 --> 00:03:52.920
that would be a de novo standard in this court.
75
00:03:52.920 --> 00:03:54.540
Well, there's a lot of ifs in that.
76
00:03:54.540 --> 00:03:57.240
So I guess again going back,
77
00:03:57.240 --> 00:04:01.560
the evidence at least that in the light most favorable
78
00:04:01.560 --> 00:04:03.180
to the Commonwealth,
79
00:04:03.180 --> 00:04:08.100
suggests that they did not find any blood on Bodhi
80
00:04:08.100 --> 00:04:10.710
to support at least the testimony
81
00:04:10.710 --> 00:04:12.510
or the view of your client
82
00:04:12.510 --> 00:04:14.970
that there was this kind of bloody back and forth
83
00:04:14.970 --> 00:04:16.980
such that he had to intervene
84
00:04:16.980 --> 00:04:19.920
on behalf of the whatever the animal was.
85
00:04:19.920 --> 00:04:24.660
Does that play into the judge's discretion
86
00:04:24.660 --> 00:04:26.730
in whether or not the evidence fits
87
00:04:26.730 --> 00:04:29.160
to give that kind of an instruction?
88
00:04:29.160 --> 00:04:29.993
No, your Honor.
89
00:04:29.993 --> 00:04:32.940
And the reason is because the evidence is not viewed
90
00:04:32.940 --> 00:04:34.860
in the light most favorable to the Commonwealth
91
00:04:34.860 --> 00:04:36.390
when we're dealing with jury's instructions.
92
00:04:36.390 --> 00:04:38.670
It's viewed in the light most favorable to the defendant.
93
00:04:38.670 --> 00:04:40.260
But isn't the jury instruction
94
00:04:40.260 --> 00:04:43.800
that you've got broader than the one you're requesting?
95
00:04:43.800 --> 00:04:46.590
Any justification is enough.
96
00:04:46.590 --> 00:04:49.800
So what are you accomplishing
97
00:04:49.800 --> 00:04:52.950
by sort of putting in these particularities,
98
00:04:52.950 --> 00:04:56.220
when you can rely on anything your client was doing
99
00:04:56.220 --> 00:04:59.700
that was justified is enough?
100
00:04:59.700 --> 00:05:01.980
Well, that's the argument that the Commonwealth makes.
101
00:05:01.980 --> 00:05:03.810
And I think the problem with that argument
102
00:05:03.810 --> 00:05:07.260
is the jury is left entirely unguided
103
00:05:07.260 --> 00:05:11.010
with respect to what is an adequate justification
104
00:05:11.010 --> 00:05:12.030
under the law.
105
00:05:12.030 --> 00:05:14.130
But I assume like in closing,
106
00:05:14.130 --> 00:05:18.480
you're saying he was justified in protecting his,
107
00:05:18.480 --> 00:05:20.790
or I can't remember if we're protecting the hedgehog
108
00:05:20.790 --> 00:05:23.010
or we're protecting your dog,
109
00:05:23.010 --> 00:05:26.043
but he's justified in how he behaves here, right?
110
00:05:26.940 --> 00:05:28.770
Right. So that's the closing argument.
111
00:05:28.770 --> 00:05:32.670
But the problem is that the jury is never instructed
112
00:05:32.670 --> 00:05:34.950
that if they believe that that's true,
113
00:05:34.950 --> 00:05:37.920
that that is an adequate justification under the law.
114
00:05:37.920 --> 00:05:42.270
The jury's just left to decide whether they believe
115
00:05:42.270 --> 00:05:43.350
that it's justified.
116
00:05:43.350 --> 00:05:44.820
And that's not really the standard
117
00:05:44.820 --> 00:05:46.290
that the jury's to be implying.
118
00:05:46.290 --> 00:05:49.137
If there is a justification under the law,
119
00:05:49.137 --> 00:05:50.820
the jury needs to be given that
120
00:05:50.820 --> 00:05:52.830
so that they can determine
121
00:05:52.830 --> 00:05:56.820
whether the defendant has met that justification or not.
122
00:05:56.820 --> 00:05:58.440
Not simply whether they believe
123
00:05:58.440 --> 00:06:00.810
that that's justification or not.
124
00:06:00.810 --> 00:06:02.520
Counsel, going back to viewing the evidence,
125
00:06:02.520 --> 00:06:04.500
as you suggested in the light most favorable
126
00:06:04.500 --> 00:06:05.430
to the defendant.
127
00:06:05.430 --> 00:06:07.920
Can you explain why this particular instruction,
128
00:06:07.920 --> 00:06:09.600
and I'm still focused on the defense
129
00:06:09.600 --> 00:06:11.070
of an animal instruction,
130
00:06:11.070 --> 00:06:14.550
was warranted if it even were available at law?
131
00:06:14.550 --> 00:06:17.700
Where if I'm not misunderstanding the testimony,
132
00:06:17.700 --> 00:06:19.890
the defendant himself testified
133
00:06:19.890 --> 00:06:23.280
that he had already separated his dog
134
00:06:23.280 --> 00:06:25.710
from the groundhog at the time
135
00:06:25.710 --> 00:06:28.740
he was doing the disputed strikes.
136
00:06:28.740 --> 00:06:30.690
Well, he had separated the dog,
137
00:06:30.690 --> 00:06:33.600
but the dog also had gotten away from him
138
00:06:33.600 --> 00:06:35.310
and was trying to get away from him
139
00:06:35.310 --> 00:06:38.190
and get back to the groundhog.
140
00:06:38.190 --> 00:06:40.920
And I think that also goes back,
141
00:06:40.920 --> 00:06:43.530
and this is where I think both of these two issues
142
00:06:43.530 --> 00:06:45.450
do interplay with each other,
143
00:06:45.450 --> 00:06:49.770
is it also goes back to the issue of the expert testimony.
144
00:06:49.770 --> 00:06:53.910
So the defense was deprived of the testimony
145
00:06:53.910 --> 00:06:56.523
that this is a dog that had a high prey drive.
146
00:06:57.420 --> 00:07:00.480
And had the jury been given that additional evidence
147
00:07:00.480 --> 00:07:02.130
that the dog is a high prey drive,
148
00:07:02.130 --> 00:07:05.160
that is something that would've also supported it.
149
00:07:05.160 --> 00:07:07.563
And if we look through the expert report,
150
00:07:09.510 --> 00:07:14.130
Ms. Puff talks about the tunnel vision that the dog has,
151
00:07:14.130 --> 00:07:16.500
that a dog with a high prey drive has,
152
00:07:16.500 --> 00:07:19.350
and that it takes something more to snap the dog out of it.
153
00:07:19.350 --> 00:07:21.270
And that's why simply that's separating-
154
00:07:21.270 --> 00:07:25.830
How does a vet tech know anything about a high prey drive?
155
00:07:25.830 --> 00:07:29.370
That sounds like something required for a scientist
156
00:07:29.370 --> 00:07:31.050
or at least a veterinarian.
157
00:07:31.050 --> 00:07:33.870
I mean, she helps take care of dogs
158
00:07:33.870 --> 00:07:36.690
when they arrive at the vet.
159
00:07:36.690 --> 00:07:39.360
She doesn't know anything about their prey drives.
160
00:07:39.360 --> 00:07:42.270
Well, she has training and experience though
161
00:07:42.270 --> 00:07:46.809
in giving these safer behavioral assessments,
162
00:07:46.809 --> 00:07:51.120
and she has done those behavioral assessments,
163
00:07:51.120 --> 00:07:54.320
and we're talking about determining which dogs get-
164
00:07:54.320 --> 00:07:58.260
A pray drive is something
165
00:07:58.260 --> 00:08:00.900
that requires background knowledge, right?
166
00:08:00.900 --> 00:08:05.900
It's not just whether the dog is jumpy at the vet, right?
167
00:08:05.970 --> 00:08:07.801
I mean, correct.
168
00:08:07.801 --> 00:08:11.340
But veterinarians and a vet tech
169
00:08:11.340 --> 00:08:13.230
who is working in a veterinarian's office
170
00:08:13.230 --> 00:08:14.820
have to determine which animals
171
00:08:14.820 --> 00:08:17.520
can be in which room together.
172
00:08:17.520 --> 00:08:20.490
They have to make those kinds of judgements all the time.
173
00:08:20.490 --> 00:08:22.230
So she's doing behavioral assessments
174
00:08:22.230 --> 00:08:24.600
in terms of which animals can go to which homes
175
00:08:24.600 --> 00:08:26.820
and has been doing that for a very long time,
176
00:08:26.820 --> 00:08:29.790
but is also dealing with animals
177
00:08:29.790 --> 00:08:33.210
on a day-to-day basis in a clinical setting
178
00:08:33.210 --> 00:08:34.830
where there are multiple animals
179
00:08:34.830 --> 00:08:37.260
and they have to deal with these kinds of issues.
180
00:08:37.260 --> 00:08:40.500
Counsel, help me on the report.
181
00:08:40.500 --> 00:08:44.190
Did she outline specific experience
182
00:08:44.190 --> 00:08:46.173
with this breed of dog?
183
00:08:47.160 --> 00:08:50.730
She did not specifically talk about experience
184
00:08:50.730 --> 00:08:52.590
with this particular breed of dogs.
185
00:08:52.590 --> 00:08:54.330
So let me stop you there.
186
00:08:54.330 --> 00:08:57.630
So isn't one of the factors under Daubert-Lanigan
187
00:08:57.630 --> 00:09:01.650
that you can apply it to the facts and circumstances here?
188
00:09:01.650 --> 00:09:03.870
So even if the trial judge
189
00:09:03.870 --> 00:09:07.500
credited that perhaps she did these behavioral things
190
00:09:07.500 --> 00:09:12.500
in general, would that necessarily inform
191
00:09:12.810 --> 00:09:15.000
whether or not it, whatever she had to say
192
00:09:15.000 --> 00:09:18.389
would be helpful about this breed of dog?
193
00:09:18.389 --> 00:09:19.222
[Attorney Faulkner] Well, I think that would go
194
00:09:19.222 --> 00:09:21.180
to the weight of the evidence.
195
00:09:21.180 --> 00:09:23.340
That's not an admissibility factor?
196
00:09:23.340 --> 00:09:26.010
I think that that is beyond an admissibility factor
197
00:09:26.010 --> 00:09:27.840
because if she's to the point
198
00:09:27.840 --> 00:09:30.480
where she can make a determination
199
00:09:30.480 --> 00:09:35.480
about the different behaviors of various animals,
200
00:09:35.520 --> 00:09:39.210
the jury can determine whether they believe that
201
00:09:39.210 --> 00:09:40.730
in this case.
202
00:09:40.730 --> 00:09:44.130
But I think the key question as to the gatekeeper function
203
00:09:44.130 --> 00:09:47.370
is simply whether she has the experience to do it at all.
204
00:09:47.370 --> 00:09:50.343
And I would suggest that it's not just,
205
00:09:51.502 --> 00:09:53.430
the trial judge I think talks about
206
00:09:53.430 --> 00:09:55.050
how she doesn't have the education
207
00:09:55.050 --> 00:09:56.640
to make these determinations,
208
00:09:56.640 --> 00:10:00.810
but the expert testimony cases in this court
209
00:10:00.810 --> 00:10:03.060
go well beyond simply education
210
00:10:03.060 --> 00:10:07.230
and clearly recognize that training and experience
211
00:10:07.230 --> 00:10:08.700
are significant factors
212
00:10:08.700 --> 00:10:11.190
and can lead to the admissibility of evidence
213
00:10:11.190 --> 00:10:16.190
that a core category of expertise that's based on training
214
00:10:16.320 --> 00:10:17.153
and experiences.
215
00:10:17.153 --> 00:10:18.990
Of course, police officer expert testimony,
216
00:10:18.990 --> 00:10:21.720
which is regularly admitted within the Commonwealth.
217
00:10:21.720 --> 00:10:23.940
And so this is somebody who has, again,
218
00:10:23.940 --> 00:10:28.833
a long history of both assessing injuries,
219
00:10:29.700 --> 00:10:32.370
determining and triaging injuries,
220
00:10:32.370 --> 00:10:35.160
and also performing behavioral assessment.
221
00:10:35.160 --> 00:10:39.150
So I think that goes to both prongs of the expert.
222
00:10:39.150 --> 00:10:43.110
And I would just add that even if one prong
223
00:10:43.110 --> 00:10:45.990
of the expertise was determined to be excluded,
224
00:10:45.990 --> 00:10:49.260
that doesn't mean that the other one needs to as well.
225
00:10:49.260 --> 00:10:53.190
And so even if this court determined
226
00:10:53.190 --> 00:10:56.640
that it was proper to exclude the evidence
227
00:10:56.640 --> 00:10:59.640
as to the prey drive,
228
00:10:59.640 --> 00:11:02.220
it's still important that her testimony
229
00:11:02.220 --> 00:11:04.980
as to the pain response.
230
00:11:04.980 --> 00:11:07.140
And the Commonwealth in the trial court
231
00:11:07.140 --> 00:11:09.690
kept characterizing that as pain tolerance.
232
00:11:09.690 --> 00:11:11.610
And that's not at all what was being proffered.
233
00:11:11.610 --> 00:11:13.320
It was pain response.
234
00:11:13.320 --> 00:11:16.260
And the reason that that was an important
235
00:11:16.260 --> 00:11:18.660
piece of testimony in the trial court is
236
00:11:18.660 --> 00:11:23.660
because what the expert opinion was seeking to demonstrate
237
00:11:25.170 --> 00:11:28.020
to the court is not that the dog was necessarily
238
00:11:28.020 --> 00:11:30.340
in any more or less pain than any other dog,
239
00:11:30.340 --> 00:11:34.350
but because the dog had demonstrated a pain response
240
00:11:34.350 --> 00:11:36.393
with regard to one area of its body,
241
00:11:37.290 --> 00:11:39.180
that means that that's the kind of dog
242
00:11:39.180 --> 00:11:42.600
that you can elicit a pain response from,
243
00:11:42.600 --> 00:11:43.860
doesn't have anything to do
244
00:11:43.860 --> 00:11:46.320
with necessarily whether the dog's feeling the pain,
245
00:11:46.320 --> 00:11:49.890
but the dog when it's examined by the veterinarian
246
00:11:49.890 --> 00:11:51.450
who also did testify-
247
00:11:51.450 --> 00:11:52.350
I'm confused.
248
00:11:52.350 --> 00:11:55.380
So the veterinarian gives a very favorable testimony
249
00:11:55.380 --> 00:11:59.010
to your client saying there's just no injuries,
250
00:11:59.010 --> 00:12:00.840
no apparent injuries to the head,
251
00:12:00.840 --> 00:12:05.731
which is where your client was supposedly pounding the dog.
252
00:12:05.731 --> 00:12:06.564
[Attorney Faulkner] Right.
253
00:12:06.564 --> 00:12:08.640
So there are no injuries there.
254
00:12:08.640 --> 00:12:12.123
What's the value of the pain response point?
255
00:12:14.391 --> 00:12:16.740
It doesn't enhance anything, right?
256
00:12:16.740 --> 00:12:18.570
Well, I disagree because,
257
00:12:18.570 --> 00:12:20.253
it's simply because there aren't,
258
00:12:21.960 --> 00:12:23.400
there's no brain injuries.
259
00:12:23.400 --> 00:12:25.072
She does a neurological inquiry-
260
00:12:25.072 --> 00:12:27.600
Oh, there's no bruising, no swelling, nothing.
261
00:12:27.600 --> 00:12:30.000
I mean that supports your client.
262
00:12:30.000 --> 00:12:32.940
The jury clearly didn't find that compelling,
263
00:12:32.940 --> 00:12:35.940
but it supports your client's view
264
00:12:35.940 --> 00:12:37.230
that he did just what he said,
265
00:12:37.230 --> 00:12:40.500
which is that sort of abbreviated punch
266
00:12:40.500 --> 00:12:42.330
that he's talking about.
267
00:12:42.330 --> 00:12:43.920
Right, but a jury could find
268
00:12:43.920 --> 00:12:45.630
that even though there weren't injuries,
269
00:12:45.630 --> 00:12:47.670
the dog was in pain.
270
00:12:47.670 --> 00:12:49.890
And I think-
Can I ask you about the...
271
00:12:49.890 --> 00:12:52.590
It seems like your client is trying
272
00:12:52.590 --> 00:12:53.700
to have its cake and eat it.
273
00:12:53.700 --> 00:12:55.473
And maybe these are jury issues,
274
00:12:56.640 --> 00:13:01.440
but it goes to prejudice as an overall.
275
00:13:01.440 --> 00:13:05.430
So we basically have a scenario where he says
276
00:13:05.430 --> 00:13:09.510
he has to make these heroic steps to save the groundhog
277
00:13:09.510 --> 00:13:13.020
even after the groundhog is away.
278
00:13:13.020 --> 00:13:15.510
So he has to discipline the dog.
279
00:13:15.510 --> 00:13:17.867
And then he says, well, I had to discipline the dog
280
00:13:17.867 --> 00:13:20.160
and it has a high prey drive,
281
00:13:20.160 --> 00:13:22.860
so I have to really, like any self-defense,
282
00:13:22.860 --> 00:13:26.190
use necessary force.
283
00:13:26.190 --> 00:13:29.580
But I just pull my punches 'cause I'm a karate guy.
284
00:13:29.580 --> 00:13:32.430
It seems like there's a prejudice issue
285
00:13:32.430 --> 00:13:35.400
that these things, these thoughts are contradictory,
286
00:13:35.400 --> 00:13:38.103
and it seems that although you may be right,
287
00:13:39.030 --> 00:13:41.930
there's a lack of prejudice because of that contradiction.
288
00:13:42.900 --> 00:13:44.220
I'm not sure that's right
289
00:13:44.220 --> 00:13:47.370
because I'm not sure that there is
290
00:13:47.370 --> 00:13:49.500
quite the inherent contradiction
291
00:13:49.500 --> 00:13:50.550
that your Honor suggests.
292
00:13:50.550 --> 00:13:52.500
And at any rate, I think that is something
293
00:13:52.500 --> 00:13:54.060
for the jury to determine.
294
00:13:54.060 --> 00:13:56.850
But he testifies that what he's trying to do with these
295
00:13:56.850 --> 00:14:01.320
is snap the dog out of it, to get his attention.
296
00:14:01.320 --> 00:14:04.500
And that that is a way that he's learned
297
00:14:04.500 --> 00:14:07.830
that the dog will respond to that.
298
00:14:07.830 --> 00:14:10.770
So he's doing that to elicit the response.
299
00:14:10.770 --> 00:14:14.790
And it's consistent with the veterinary testimony.
300
00:14:14.790 --> 00:14:18.660
His testimony about pulling the punches is more consistent
301
00:14:18.660 --> 00:14:20.580
with the veterinary evidence, obviously,
302
00:14:20.580 --> 00:14:21.930
than the witness testimony
303
00:14:21.930 --> 00:14:25.470
because they testify that he's hitting the dog with force
304
00:14:25.470 --> 00:14:27.150
up to 10 times.
305
00:14:27.150 --> 00:14:31.650
And there's no evidence, even though both the veterinarian
306
00:14:31.650 --> 00:14:34.590
and the vet tech testified that there would be
307
00:14:34.590 --> 00:14:38.550
both physical injuries and neurological injuries,
308
00:14:38.550 --> 00:14:39.840
there's nothing of the sort.
309
00:14:39.840 --> 00:14:42.630
So that leaves the jury, again,
310
00:14:42.630 --> 00:14:46.920
simply in determining whether the dog may have been in pain.
311
00:14:46.920 --> 00:14:49.410
And that I think goes back to, again,
312
00:14:49.410 --> 00:14:53.280
the pain response testimony would've been necessary
313
00:14:53.280 --> 00:14:55.380
and appropriate and supportive of the defense.
314
00:14:55.380 --> 00:14:58.380
Are you, so you're basically saying,
315
00:14:58.380 --> 00:14:59.490
correct me if I'm wrong,
316
00:14:59.490 --> 00:15:02.160
that if the jury instruction had been given
317
00:15:02.160 --> 00:15:06.090
that it's amount of force as necessary that fits the bill.
318
00:15:06.090 --> 00:15:08.120
I think that that would've assisted the defense.
319
00:15:08.120 --> 00:15:10.470
It was consistent with the law
320
00:15:10.470 --> 00:15:14.610
and that denying the jury,
321
00:15:14.610 --> 00:15:16.820
that jury instruction deprived the defendant of his defense.
322
00:15:16.820 --> 00:15:19.020
So just justifiable doesn't do
323
00:15:19.020 --> 00:15:21.595
what that jury instruction would give?
324
00:15:21.595 --> 00:15:22.428
[Attorney Faulkner] Excuse me.
325
00:15:22.428 --> 00:15:24.030
Just saying justifiable
326
00:15:24.030 --> 00:15:28.410
doesn't give the flavor of self-defense, essentially.
327
00:15:28.410 --> 00:15:29.243
Correct.
328
00:15:29.243 --> 00:15:32.130
Because it's just an open-ended justifiable
329
00:15:32.130 --> 00:15:34.230
where the jury is just weighing whether they think
330
00:15:34.230 --> 00:15:35.730
it was an appropriate action or not
331
00:15:35.730 --> 00:15:39.077
as opposed to whether the law protects that kind of action.
332
00:15:39.077 --> 00:15:42.990
Do you think that the jury's verdict
333
00:15:42.990 --> 00:15:46.680
necessarily indicates that they did not credit
334
00:15:46.680 --> 00:15:50.733
your client's testimony about pulling back on the punches?
335
00:15:51.577 --> 00:15:53.940
[Attorney Faulkner] It certainly is possible.
336
00:15:53.940 --> 00:15:55.710
What other explanation could there be
337
00:15:55.710 --> 00:15:56.733
for the verdict?
338
00:15:58.230 --> 00:16:00.460
I mean, isn't that necessarily
339
00:16:01.680 --> 00:16:05.193
an embedded factual determination in this verdict?
340
00:16:07.050 --> 00:16:09.030
So I think that the jury
341
00:16:09.030 --> 00:16:11.460
doesn't have to necessarily discredit that.
342
00:16:11.460 --> 00:16:14.279
If the jury finds, again,
343
00:16:14.279 --> 00:16:16.830
and I would liken it to assault and battery case law.
344
00:16:16.830 --> 00:16:18.030
You don't have to prove injuries
345
00:16:18.030 --> 00:16:19.050
for an assault and battery.
346
00:16:19.050 --> 00:16:21.030
Any amount of pain is enough.
347
00:16:21.030 --> 00:16:23.880
If it's a harmful contact,
348
00:16:23.880 --> 00:16:26.940
we have serious bodily injury answers for it, right?
349
00:16:26.940 --> 00:16:29.340
So if the jury finds that there's some pain
350
00:16:29.340 --> 00:16:31.920
that comes with this contact,
351
00:16:31.920 --> 00:16:35.010
that might have been enough for them to determine
352
00:16:35.010 --> 00:16:37.050
that that's appropriate to the verdict.
353
00:16:37.050 --> 00:16:40.020
And again, I think that's where being given
354
00:16:40.020 --> 00:16:44.790
the justifications, particularized justifications,
355
00:16:44.790 --> 00:16:46.990
it might have made a difference in the case.
356
00:16:48.796 --> 00:16:50.914
[Justice Wolohojian] Okay.
No further questions?
357
00:16:50.914 --> 00:16:51.747
[Justice Wolohojian] Thank you.
358
00:16:53.070 --> 00:16:54.243
Okay, Attorney Cohen.
359
00:16:58.740 --> 00:16:59.573
Good morning.
360
00:16:59.573 --> 00:17:00.780
May I please the court, Jennifer Cohen
361
00:17:00.780 --> 00:17:02.460
for the Commonwealth.
362
00:17:02.460 --> 00:17:04.740
The Commonwealth argues that the instruction
363
00:17:04.740 --> 00:17:07.320
as given at the trial was adequate.
364
00:17:07.320 --> 00:17:12.210
And in fact, the instruction as to justification
365
00:17:12.210 --> 00:17:14.760
or the definition of animal cruelty
366
00:17:14.760 --> 00:17:18.660
is so broad and is very favorable to the defendant as it is.
367
00:17:18.660 --> 00:17:23.010
While there may be some reason for elaborating on-
368
00:17:23.010 --> 00:17:24.450
How do we know it's so broad?
369
00:17:24.450 --> 00:17:27.720
I mean, you know, we incorporate
370
00:17:27.720 --> 00:17:31.290
all these sort of standard instructions.
371
00:17:31.290 --> 00:17:32.640
It provides definition,
372
00:17:32.640 --> 00:17:37.597
But why, how does the jury know what's justifiable here
373
00:17:38.550 --> 00:17:41.430
without sort of further clarification?
374
00:17:41.430 --> 00:17:43.920
I mean, I think the way that this is worded
375
00:17:43.920 --> 00:17:45.480
is any justification.
376
00:17:45.480 --> 00:17:49.200
And I think that the defendant also raised the defenses
377
00:17:49.200 --> 00:17:50.033
that he's now working.
378
00:17:50.033 --> 00:17:51.390
It's a complete defense, correct?
379
00:17:51.390 --> 00:17:52.440
Yes, your Honor. It's a-
380
00:17:52.440 --> 00:17:54.806
All right, if this was a person case...
381
00:17:54.806 --> 00:17:55.639
Yeah.
382
00:17:55.639 --> 00:17:59.280
And the judge didn't instruct on assault on self-defense,
383
00:17:59.280 --> 00:18:00.210
would you be standing here
384
00:18:00.210 --> 00:18:01.610
or would just concede error?
385
00:18:02.718 --> 00:18:05.100
Well, I think that even if an instruction-
386
00:18:05.100 --> 00:18:06.210
I think the answer's probably yes,
387
00:18:06.210 --> 00:18:07.470
correct?
388
00:18:07.470 --> 00:18:08.550
Potentially yes.
389
00:18:08.550 --> 00:18:12.240
But I do think that in these particular circumstances,
390
00:18:12.240 --> 00:18:13.920
even if this court were to decide
391
00:18:13.920 --> 00:18:16.590
that the instruction should have been given,
392
00:18:16.590 --> 00:18:18.090
and it was our not to give it,
393
00:18:18.090 --> 00:18:18.923
I would still argue
394
00:18:18.923 --> 00:18:20.640
that there was no prejudice to the defendant
395
00:18:20.640 --> 00:18:24.870
given that the definition of cruelty was read three times.
396
00:18:24.870 --> 00:18:28.620
The jury was instructed very thoroughly
397
00:18:28.620 --> 00:18:30.308
on the fact that this was the-
398
00:18:30.308 --> 00:18:31.211
Before we move to prejudice, though,
399
00:18:31.211 --> 00:18:33.734
I just wanna, 'cause you know,
400
00:18:33.734 --> 00:18:36.030
this is sort of a Pandora's box.
401
00:18:36.030 --> 00:18:37.890
Are we gonna have agitant evidence here?
402
00:18:37.890 --> 00:18:39.930
Are we gonna, I mean, how far are we gonna go
403
00:18:39.930 --> 00:18:40.763
with all of this?
404
00:18:40.763 --> 00:18:43.860
Are we gonna incorporate all of the people defenses
405
00:18:43.860 --> 00:18:45.183
and subtleties to it?
406
00:18:46.980 --> 00:18:47.813
Sure.
407
00:18:47.813 --> 00:18:49.140
And your Honor, that's why the Commonwealth
408
00:18:49.140 --> 00:18:52.170
is also arguing that this is a determination
409
00:18:52.170 --> 00:18:53.910
that's better left to the legislature.
410
00:18:53.910 --> 00:18:57.510
I think that the legislature has demonstrated an interest
411
00:18:57.510 --> 00:19:00.750
in the area of animal cruelty.
412
00:19:00.750 --> 00:19:03.360
The recent task force provided recommendations,
413
00:19:03.360 --> 00:19:08.110
which pretty much exclusively pertained to education
414
00:19:09.330 --> 00:19:10.740
as a recommendation, not-
415
00:19:10.740 --> 00:19:13.020
Do we need to provide some more clarity
416
00:19:13.020 --> 00:19:17.973
about what justification means, or is it self-explanatory?
417
00:19:19.080 --> 00:19:22.770
I think it's left to the jury to decide
418
00:19:22.770 --> 00:19:24.510
what a justification is.
419
00:19:24.510 --> 00:19:27.870
I just, I would argue that allowing
420
00:19:27.870 --> 00:19:32.820
these kinds of defenses to be raised in animal cruelty cases
421
00:19:33.720 --> 00:19:38.670
raise questions of public policy
422
00:19:38.670 --> 00:19:43.670
that I'm not sure Massachusetts is interested in promoting.
423
00:19:44.880 --> 00:19:49.880
Well, I guess if there were a reason for the clarity,
424
00:19:50.460 --> 00:19:53.130
I certainly think this is one case that highlights that.
425
00:19:53.130 --> 00:19:54.775
I mean, are we going to, I mean,
426
00:19:54.775 --> 00:19:59.460
if it were domestic, if they were a dog park
427
00:19:59.460 --> 00:20:02.310
and it was another domesticated dog
428
00:20:02.310 --> 00:20:05.880
that the Bodhi took after,
429
00:20:05.880 --> 00:20:09.960
I don't think there would be much in debate that
430
00:20:09.960 --> 00:20:12.360
yeah, you've gotta stop that, right?
431
00:20:12.360 --> 00:20:14.070
I mean, you've gotta intervene.
432
00:20:14.070 --> 00:20:16.770
And if we're talking about a wild animal,
433
00:20:16.770 --> 00:20:18.750
I don't know that that's necessarily
434
00:20:18.750 --> 00:20:19.980
in the same neighborhood.
435
00:20:19.980 --> 00:20:22.020
And wouldn't that have been something
436
00:20:22.020 --> 00:20:24.000
that could have been the clarity
437
00:20:24.000 --> 00:20:27.003
that perhaps the justification needed?
438
00:20:28.200 --> 00:20:29.033
Sure.
439
00:20:29.033 --> 00:20:33.060
And I think though your Honor's,
440
00:20:33.060 --> 00:20:35.970
raising of these kind of hypotheticals
441
00:20:35.970 --> 00:20:37.770
is kind of part of the problem here.
442
00:20:37.770 --> 00:20:41.100
I agree that if we were talking about a fight
443
00:20:41.100 --> 00:20:45.840
between two dogs, that an instruction on bonafide discipline
444
00:20:45.840 --> 00:20:48.750
or defense of another may have been more warranted.
445
00:20:48.750 --> 00:20:52.110
But I think once you start looking at,
446
00:20:52.110 --> 00:20:54.690
I guess the instruction that my brother is requesting
447
00:20:54.690 --> 00:20:58.260
is defense of a wild animal.
448
00:20:58.260 --> 00:20:59.280
And I think-
449
00:20:59.280 --> 00:21:01.050
Well, he's requesting two.
450
00:21:01.050 --> 00:21:01.883
Sure, sure.
451
00:21:01.883 --> 00:21:03.510
I guess defense of,
452
00:21:03.510 --> 00:21:06.758
but the instruction on defense of another animal
453
00:21:06.758 --> 00:21:09.570
is defensive, basically any animal.
454
00:21:09.570 --> 00:21:10.403
It's not just-
455
00:21:10.403 --> 00:21:14.190
But is the animal cruelty statute limited to...
456
00:21:14.190 --> 00:21:15.680
Doesn't it extend to all animals?
457
00:21:15.680 --> 00:21:16.710
It it does, your Honor.
458
00:21:16.710 --> 00:21:20.190
But I think this instruction as requested,
459
00:21:20.190 --> 00:21:23.640
leaves us in a situation
460
00:21:23.640 --> 00:21:28.380
where a person can punch a bird
461
00:21:28.380 --> 00:21:30.720
and then claim that they were defending a worm
462
00:21:30.720 --> 00:21:31.680
from being eaten.
463
00:21:31.680 --> 00:21:34.650
I think this instruction could potentially apply
464
00:21:34.650 --> 00:21:36.600
to all sorts of circumstances
465
00:21:36.600 --> 00:21:38.220
that I'm not sure that the Commonwealth
466
00:21:38.220 --> 00:21:40.980
would want the defense to be applicable.
467
00:21:40.980 --> 00:21:41.813
I think this-
468
00:21:41.813 --> 00:21:44.310
What about the bonafide discipline instruction?
469
00:21:44.310 --> 00:21:45.840
Why wouldn't that be appropriate?
470
00:21:45.840 --> 00:21:50.280
I see why the wild animal versus domesticated animal defense
471
00:21:50.280 --> 00:21:51.930
might require a policy decision.
472
00:21:51.930 --> 00:21:54.450
But what about the bonafide discipline?
473
00:21:54.450 --> 00:21:57.750
So I think comparing this to
474
00:21:57.750 --> 00:22:00.450
the parental discipline instruction, you know,
475
00:22:00.450 --> 00:22:05.250
the three prongs that the Commonwealth must disprove
476
00:22:05.250 --> 00:22:07.830
beyond a reasonable doubt, probably could be translated
477
00:22:07.830 --> 00:22:10.950
into the area of animal cruelty.
478
00:22:10.950 --> 00:22:13.290
However, there are two paragraphs that follow
479
00:22:13.290 --> 00:22:15.210
that outline the factors
480
00:22:15.210 --> 00:22:16.500
that the jury should consider
481
00:22:16.500 --> 00:22:20.640
when deciding whether force used as reasonable
482
00:22:20.640 --> 00:22:22.170
or reasonable in the circumstances.
483
00:22:22.170 --> 00:22:25.200
And I'm not sure that those paragraphs necessarily translate
484
00:22:25.200 --> 00:22:27.300
to the world of animals.
485
00:22:27.300 --> 00:22:28.770
I'm not sure of that.
486
00:22:28.770 --> 00:22:30.810
And I think once an instruction is given,
487
00:22:30.810 --> 00:22:32.760
using those sorts of factors,
488
00:22:32.760 --> 00:22:34.650
that puts something in the jury's head
489
00:22:34.650 --> 00:22:37.260
that I'm not sure should be there.
490
00:22:37.260 --> 00:22:41.553
I think, you know, it's talking about the age of the child.
491
00:22:42.780 --> 00:22:43.920
It's a mental-
492
00:22:43.920 --> 00:22:47.790
So you're fine with the three-pronged durable test?
493
00:22:47.790 --> 00:22:48.900
I think that potentially-
494
00:22:48.900 --> 00:22:51.270
But not the subsequent instructions
495
00:22:51.270 --> 00:22:53.190
that follow the two paragraphs?
496
00:22:53.190 --> 00:22:56.890
Yes, and I think that perhaps
497
00:22:58.380 --> 00:23:00.870
elaborating on the instruction at least
498
00:23:00.870 --> 00:23:03.060
of defense of another animal
499
00:23:03.060 --> 00:23:06.393
could be more protective of victims of animal cruelty.
500
00:23:07.740 --> 00:23:11.130
But sticking with the bonafide discipline,
501
00:23:11.130 --> 00:23:13.650
your position is that the adoption
502
00:23:13.650 --> 00:23:15.660
of the durable three pronged standard,
503
00:23:15.660 --> 00:23:18.240
without the subsequent paragraphs, would be permissible?
504
00:23:18.240 --> 00:23:19.440
I think that you would,
505
00:23:19.440 --> 00:23:21.660
I think that that would also be better left
506
00:23:21.660 --> 00:23:23.069
to the legislature.
507
00:23:23.069 --> 00:23:24.360
[Justice Wendlandt] Why?
Because I think
508
00:23:24.360 --> 00:23:28.890
those factors of reasonability in the context
509
00:23:28.890 --> 00:23:32.970
of animal cruelty need to be looked into further.
510
00:23:32.970 --> 00:23:34.290
I think that-
511
00:23:34.290 --> 00:23:36.457
Well, isn't that what the Zaleski
512
00:23:36.457 --> 00:23:38.810
and the Lefkin cases already provide?
513
00:23:38.810 --> 00:23:39.643
Sure.
514
00:23:39.643 --> 00:23:42.270
So it seems to be part of our law already.
515
00:23:42.270 --> 00:23:46.200
And the three factors, I mean of the three factors,
516
00:23:46.200 --> 00:23:50.070
do any of those not really codify the Lutkin standard?
517
00:23:50.070 --> 00:23:52.110
So I think the other point, your Honor,
518
00:23:52.110 --> 00:23:54.030
is that that is a case from the 1800s
519
00:23:54.030 --> 00:23:54.881
and it pertains to horses-
520
00:23:54.881 --> 00:23:56.760
Right, but Zaleski is 2009
521
00:23:56.760 --> 00:23:59.490
and mean, granted, it's the appeal score, not the SJC,
522
00:23:59.490 --> 00:24:01.260
but still, it's binding law.
523
00:24:01.260 --> 00:24:03.810
And I think the instruction given there
524
00:24:03.810 --> 00:24:06.060
was fairly perfunctory.
525
00:24:06.060 --> 00:24:08.820
And that bonafide discipline is a defense
526
00:24:08.820 --> 00:24:10.650
was the only instruction that was given.
527
00:24:10.650 --> 00:24:12.930
So I would agree that is a defense.
528
00:24:12.930 --> 00:24:16.050
I would just say that the instruction as written now
529
00:24:16.050 --> 00:24:19.860
adequately covers any justification whatsoever.
530
00:24:19.860 --> 00:24:21.990
And to elaborate further
531
00:24:21.990 --> 00:24:23.670
and to create parameters
532
00:24:23.670 --> 00:24:26.160
that a jury is now going to be considering
533
00:24:26.160 --> 00:24:28.080
is something that should be left to the legislature
534
00:24:28.080 --> 00:24:31.980
because of those various factors later on.
535
00:24:31.980 --> 00:24:35.040
We need to decide whether bonafide discipline,
536
00:24:35.040 --> 00:24:37.890
if that instruction can apply to any animal
537
00:24:37.890 --> 00:24:38.970
that a person might own.
538
00:24:38.970 --> 00:24:41.788
Does that apply to a horse, a snake, a dog?
539
00:24:41.788 --> 00:24:43.650
[Justice Wendlandt] Well, I mean, Lufkin was a horse.
540
00:24:43.650 --> 00:24:44.490
Sure.
[Justice Wendlandt] Yeah.
541
00:24:44.490 --> 00:24:45.450
Yep.
542
00:24:45.450 --> 00:24:47.340
But again, the only instruction given
543
00:24:47.340 --> 00:24:50.477
is that bonafide discipline is a defense.
544
00:24:50.477 --> 00:24:52.080
[Justice Wendlandt] But that was given here?
545
00:24:52.080 --> 00:24:53.250
In Lufkin.
546
00:24:53.250 --> 00:24:55.080
I know, but was that given in this case?
547
00:24:55.080 --> 00:24:57.540
No, any justification for.
548
00:24:57.540 --> 00:25:00.630
Okay. And the instruction that was requested was?
549
00:25:00.630 --> 00:25:03.029
Akin to Lufkin.
550
00:25:03.029 --> 00:25:05.040
[Justice Wendlandt] Okay. And that was not given?
551
00:25:05.040 --> 00:25:05.880
That was not given.
552
00:25:05.880 --> 00:25:07.200
And I would also note, your Honor,
553
00:25:07.200 --> 00:25:09.690
that at this stage it does appear that
554
00:25:09.690 --> 00:25:11.640
my brother is asking for an instruction
555
00:25:11.640 --> 00:25:13.350
more akin to parental discipline-
556
00:25:13.350 --> 00:25:17.700
But your fallback is that the requested instruction,
557
00:25:17.700 --> 00:25:20.430
which doesn't have the dorville three factors
558
00:25:20.430 --> 00:25:21.783
would've been proper.
559
00:25:23.580 --> 00:25:26.220
I think it is a defense.
560
00:25:26.220 --> 00:25:28.800
I think that it was within the judge's discretion
561
00:25:28.800 --> 00:25:31.350
to provide or not provide that instruction.
562
00:25:31.350 --> 00:25:33.930
I think the instruction given adequately addressed
563
00:25:33.930 --> 00:25:35.400
any justification.
564
00:25:35.400 --> 00:25:39.690
And how would the judge exercise that discretion?
565
00:25:39.690 --> 00:25:41.460
What are the factors that the judge would need
566
00:25:41.460 --> 00:25:45.630
to determine, in determining whether
567
00:25:45.630 --> 00:25:48.810
to give a Lufkin life instruction that was requested here?
568
00:25:48.810 --> 00:25:50.133
Well, I think here,
569
00:25:51.060 --> 00:25:53.310
looking at the evidence in the light most favorable
570
00:25:53.310 --> 00:25:54.455
to the defendant-
571
00:25:54.455 --> 00:25:55.288
[Justice Wendlandt] Yes.
572
00:25:55.288 --> 00:25:58.500
I would argue that the defenses weren't raised.
573
00:25:58.500 --> 00:25:59.520
I would argue that the,
574
00:25:59.520 --> 00:26:02.580
even the defendant's testimony wasn't supportive
575
00:26:02.580 --> 00:26:04.320
of either of the defenses.
576
00:26:04.320 --> 00:26:06.510
It wasn't supportive of bonafide discipline?
577
00:26:06.510 --> 00:26:09.000
I mean, he's walking away from the dog
578
00:26:09.000 --> 00:26:11.610
saying, I, you know, the dog will follow it.
579
00:26:11.610 --> 00:26:14.700
Turns out the dog has this high prey instinct apparently,
580
00:26:14.700 --> 00:26:15.900
and won't listen.
581
00:26:15.900 --> 00:26:20.900
And so then he captures the dog and pretends to punch him.
582
00:26:20.910 --> 00:26:23.633
Sure, and if your Honor disagrees with that position,
583
00:26:23.633 --> 00:26:25.347
I do think nonetheless there was no-
584
00:26:25.347 --> 00:26:28.290
But just applying the test that you've articulated.
585
00:26:28.290 --> 00:26:31.230
Viewing the facts in the light most favorable
586
00:26:31.230 --> 00:26:33.030
to the defendant,
587
00:26:33.030 --> 00:26:35.490
he was raising a bonafide discipline defense.
588
00:26:35.490 --> 00:26:36.390
Wouldn't you agree?
589
00:26:36.390 --> 00:26:41.390
I would argue that he perhaps raised bonafide discipline.
590
00:26:41.520 --> 00:26:44.287
I don't think that he raised defense of another.
591
00:26:44.287 --> 00:26:45.600
[Justice Wendlandt] Okay.
But then I would say
592
00:26:45.600 --> 00:26:47.640
that even in those circumstances,
593
00:26:47.640 --> 00:26:48.990
there was no prejudice to him,
594
00:26:48.990 --> 00:26:52.110
given the fact that the definition of cruelty
595
00:26:52.110 --> 00:26:54.313
was read multiple times, that the burden was-
596
00:26:54.313 --> 00:26:56.310
But wasn't that read multiple times,
597
00:26:56.310 --> 00:26:59.190
as I recall, because the jury repeatedly asked?
598
00:26:59.190 --> 00:27:00.023
Yes.
599
00:27:00.023 --> 00:27:01.170
Doesn't that indicate some question
600
00:27:01.170 --> 00:27:03.900
on the jury's part about what the law
601
00:27:03.900 --> 00:27:05.220
that they were supposed to apply was?
602
00:27:05.220 --> 00:27:08.340
Sure, and I think the way that the instruction is written,
603
00:27:08.340 --> 00:27:11.520
I would concede that it is a bit confusing
604
00:27:11.520 --> 00:27:13.560
that the definition of animal cruelty
605
00:27:13.560 --> 00:27:15.420
comes so late in the instruction.
606
00:27:15.420 --> 00:27:18.990
I think that if that were given at the outset,
607
00:27:18.990 --> 00:27:22.680
as it appears to apply to the entirety of the instruction,
608
00:27:22.680 --> 00:27:25.770
that would perhaps be a better way to instruct the jury.
609
00:27:25.770 --> 00:27:30.180
But I do think that part of what the foreperson said
610
00:27:30.180 --> 00:27:32.823
was something to the effect of,
611
00:27:33.660 --> 00:27:34.860
can you give us the definition
612
00:27:34.860 --> 00:27:36.090
of what we're looking for?
613
00:27:36.090 --> 00:27:39.120
I think it was clear that that applied to the entirety
614
00:27:39.120 --> 00:27:40.140
of the instruction.
615
00:27:40.140 --> 00:27:41.820
That was what they were looking for.
616
00:27:41.820 --> 00:27:44.040
They knew that it was the Commonwealth's burden
617
00:27:44.040 --> 00:27:48.000
to prove that there was animal cruelty
618
00:27:48.000 --> 00:27:49.050
beyond a reasonable doubt.
619
00:27:49.050 --> 00:27:49.883
And so-
620
00:27:49.883 --> 00:27:52.920
Counsel, if you take those two things though,
621
00:27:52.920 --> 00:27:57.920
it really then dovetails into the issue about the expert.
622
00:27:58.410 --> 00:28:00.090
Because if they have all these questions
623
00:28:00.090 --> 00:28:01.650
about what animal cruelty is,
624
00:28:01.650 --> 00:28:06.333
and he is raising a bonafide discipline defense,
625
00:28:07.350 --> 00:28:10.770
what I'm struggling with in this case is it did not,
626
00:28:10.770 --> 00:28:15.060
at least the evaluation of his potential expert testimony.
627
00:28:15.060 --> 00:28:17.520
So if we know one of the reasons
628
00:28:17.520 --> 00:28:20.010
why we allow expert testimony
629
00:28:20.010 --> 00:28:22.440
is it's helpful to the jury
630
00:28:22.440 --> 00:28:24.480
and they have all of these questions.
631
00:28:24.480 --> 00:28:27.210
Wouldn't it have been helpful to the jury
632
00:28:27.210 --> 00:28:28.890
to hear from this expert?
633
00:28:28.890 --> 00:28:31.290
Whatever weight they wanted to give to it was one thing,
634
00:28:31.290 --> 00:28:36.177
but to helpful, because it helps inform the animal cruelty
635
00:28:36.177 --> 00:28:39.390
and the bonafide discipline defense
636
00:28:39.390 --> 00:28:44.390
if they hear, hey, this dog has no off button
637
00:28:44.640 --> 00:28:47.130
once he gets kind of in a lather.
638
00:28:47.130 --> 00:28:51.120
And the Commonwealth didn't raise emotion in limine.
639
00:28:51.120 --> 00:28:52.710
It happened midstream.
640
00:28:52.710 --> 00:28:56.280
The witness was on the witness stand.
641
00:28:56.280 --> 00:28:59.481
How do we use all of that in engaging
642
00:28:59.481 --> 00:29:01.590
the abusive discretion here
643
00:29:01.590 --> 00:29:05.913
because the defendant was left kind of flatfooted.
644
00:29:07.320 --> 00:29:09.510
Respectfully, I disagree, your Honor.
645
00:29:09.510 --> 00:29:12.690
I do think that it would've been better
646
00:29:12.690 --> 00:29:15.570
if the issue had been raised in the motion in limine phase
647
00:29:15.570 --> 00:29:18.423
or if a voir dire had been conducted of the expert.
648
00:29:19.440 --> 00:29:22.350
Nonetheless, I think the testimony that was given
649
00:29:22.350 --> 00:29:27.350
by the Ms.Puff and her CV didn't indicate in any way
650
00:29:28.650 --> 00:29:33.090
that she would be qualified to testify to pain response
651
00:29:33.090 --> 00:29:36.510
or neurology or animal behavior.
652
00:29:36.510 --> 00:29:41.510
I do think that she mentioned that the safer assessments,
653
00:29:41.760 --> 00:29:43.530
I think that's in her report.
654
00:29:43.530 --> 00:29:45.000
But when you look back at her CV,
655
00:29:45.000 --> 00:29:47.700
it's clear that she was conducting those assessments
656
00:29:47.700 --> 00:29:49.680
in 2013 and 2014.
657
00:29:49.680 --> 00:29:53.400
So I do agree it would've been better to address this
658
00:29:53.400 --> 00:29:56.520
more fully out of the earshot of the jury.
659
00:29:56.520 --> 00:29:59.613
But I do think, given the fact that her testimony,
660
00:30:00.630 --> 00:30:02.940
didn't, what she was gonna testify
661
00:30:02.940 --> 00:30:05.430
didn't seem to come within the purview
662
00:30:05.430 --> 00:30:08.400
of her actual expertise or her day-to-day work.
663
00:30:08.400 --> 00:30:10.080
I think it was in the judge's discretion
664
00:30:10.080 --> 00:30:12.240
to exclude her testimony as an expert
665
00:30:12.240 --> 00:30:15.540
on those specific points.
666
00:30:15.540 --> 00:30:18.540
But even if the court disagrees with that,
667
00:30:18.540 --> 00:30:21.060
I do think that exclusion of the testimony here
668
00:30:21.060 --> 00:30:23.130
is harmless beyond a reasonable doubt.
669
00:30:23.130 --> 00:30:26.490
Because the testimony about pain response
670
00:30:26.490 --> 00:30:28.230
essentially would've been cumulative
671
00:30:28.230 --> 00:30:30.660
to what the veterinarian testified,
672
00:30:30.660 --> 00:30:34.980
where she testified that the only pain that the dog
673
00:30:34.980 --> 00:30:36.870
seemed to be feeling was in its foot.
674
00:30:36.870 --> 00:30:39.420
There were no other physical injuries to the dog.
675
00:30:39.420 --> 00:30:41.010
And I think she also testified
676
00:30:41.010 --> 00:30:44.580
that it would be very unlikely for any injuries
677
00:30:44.580 --> 00:30:47.400
to appear more than 24 hours after an incident.
678
00:30:47.400 --> 00:30:49.980
So I think as far as pain response goes,
679
00:30:49.980 --> 00:30:53.190
that was extremely favorable evidence for the defendant
680
00:30:53.190 --> 00:30:58.190
and essentially covered that portion of Ms.Puff's testimony.
681
00:30:58.800 --> 00:31:01.173
And I think as far as the prey drive,
682
00:31:03.180 --> 00:31:06.210
I would still say that the Commonwealth witnesses
683
00:31:06.210 --> 00:31:09.300
were all consistent in the fact that the dog
684
00:31:09.300 --> 00:31:12.690
wasn't listening, was fixated on something.
685
00:31:12.690 --> 00:31:14.490
It was clearly being disobedient.
686
00:31:14.490 --> 00:31:18.600
I think the Commonwealth's testimony was consistent
687
00:31:18.600 --> 00:31:22.560
with the defendant's theory there.
688
00:31:22.560 --> 00:31:27.210
And so, again, I think that where Ms. Puff wasn't allowed
689
00:31:27.210 --> 00:31:28.530
to testify as an expert,
690
00:31:28.530 --> 00:31:33.530
the defendant wasn't losing out on that as a defense.
691
00:31:35.820 --> 00:31:39.690
The one thing, so the definition of cruelty,
692
00:31:39.690 --> 00:31:42.180
it's severe or unnecessary, right?
693
00:31:42.180 --> 00:31:45.630
It helps clarify the meaning of justifiable cause.
694
00:31:45.630 --> 00:31:50.630
But I take it, the argument is you don't know how much pain
695
00:31:52.140 --> 00:31:55.623
you need to inflict to shut the dog down.
696
00:31:57.240 --> 00:31:59.940
And by excluding the prey drive
697
00:31:59.940 --> 00:32:01.390
and this other stuff, you're,
698
00:32:02.880 --> 00:32:04.860
the jury has a difficult call
699
00:32:04.860 --> 00:32:08.403
if it credited the defendant, you know?
700
00:32:09.390 --> 00:32:11.460
Right? It's a tough...
701
00:32:11.460 --> 00:32:14.400
How much is enough to shut the dog down?
702
00:32:14.400 --> 00:32:15.480
I would disagree.
703
00:32:15.480 --> 00:32:17.393
And I would say that-
Go ahead.
704
00:32:18.510 --> 00:32:20.070
Even fake punching a dog
705
00:32:20.070 --> 00:32:22.290
would be a very unreasonable action.
706
00:32:22.290 --> 00:32:23.123
Really?
707
00:32:23.123 --> 00:32:25.080
If he was telling the truth
708
00:32:25.080 --> 00:32:27.540
and these fake punches would shut the dog down
709
00:32:27.540 --> 00:32:31.290
without hurting the dog, isn't that a good defense?
710
00:32:31.290 --> 00:32:33.600
I mean, he gets himself into a problem
711
00:32:33.600 --> 00:32:35.850
when he talks about all the blood on the different animals
712
00:32:35.850 --> 00:32:37.890
and there's no blood anywhere.
713
00:32:37.890 --> 00:32:42.000
But if it's true and he's punching the dog
714
00:32:42.000 --> 00:32:44.040
without touching the dog,
715
00:32:44.040 --> 00:32:45.960
that seems pretty good, right?
716
00:32:45.960 --> 00:32:47.910
I think using a scare tactic
717
00:32:47.910 --> 00:32:51.060
to discipline something is unreasonable.
718
00:32:51.060 --> 00:32:53.730
I think we would not be supportive of that
719
00:32:53.730 --> 00:32:55.308
if it were a child.
720
00:32:55.308 --> 00:32:57.148
I know, but a dog's not a child.
721
00:32:57.148 --> 00:32:57.981
A dog is-
No, it's not.
722
00:32:57.981 --> 00:32:59.520
But it's the living thing.
723
00:32:59.520 --> 00:33:02.040
And I think that fake punching as a scare tactic
724
00:33:02.040 --> 00:33:05.550
is not a reasonable way of disciplining an animal,
725
00:33:05.550 --> 00:33:08.700
especially where he could have easily just used his hand
726
00:33:08.700 --> 00:33:10.950
to put the dog on a leash instead of fake punching.
727
00:33:10.950 --> 00:33:13.020
But isn't that a classic jury question?
728
00:33:13.020 --> 00:33:14.940
Whether it is or not is not reasonable
729
00:33:14.940 --> 00:33:17.970
to discipline your dog by fake punching it?
730
00:33:17.970 --> 00:33:20.400
And I think where the jury were instructed is that
731
00:33:20.400 --> 00:33:22.770
there could be any justification
732
00:33:22.770 --> 00:33:24.060
for this defendant's actions,
733
00:33:24.060 --> 00:33:27.210
I would agree with Justice Wallahogan
734
00:33:27.210 --> 00:33:30.840
earlier stating that I think that the jury
735
00:33:30.840 --> 00:33:33.450
did not credit the defendant's testimony.
736
00:33:33.450 --> 00:33:36.900
I think that was what was found in their verdict.
737
00:33:36.900 --> 00:33:39.510
I don't think they credited that this was fake punching.
738
00:33:39.510 --> 00:33:42.360
And I think even if they did think it was fake punching,
739
00:33:42.360 --> 00:33:43.950
it was a question for the jury,
740
00:33:43.950 --> 00:33:46.450
but I think they didn't credit the defendant here.