Opinion
No. 12–P–976.
2013-09-24
COMMONWEALTH v. Daniel M. PICTROWSKI.
By the Court (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions on thirteen counts of animal cruelty, G.L. c. 272, § 77.
He complains that the governing statute is void for vagueness in failing to set forth more definitive requirements for what constitutes a “sanitary environment.” He also takes issue with the propriety of his waiver of trial by jury given his oral request, during the judge's colloquy, to move the trial “out of town.” Additionally, he complains of ineffectiveness of counsel for his failure to further inquire of police bias and harassment on redirect examination. Finally, the defendant claims the prosecutor made an improper argument during the sentencing phase of the trial that unfairly led to a condition of probation. We affirm. Void for vagueness. The defendant raises his “void for vagueness” contention for the first time on appeal, rather than by filing a pretrial motion to dismiss, or raising it during trial. Consequently, the defendant properly acknowledges that our review of this issue is limited to a determination whether a substantial risk of a miscarriage of justice exists. We conclude that there is no such risk.
.G.L. c. 272, § 77, as amended by St.1984, c. 50, states, in relevant part that: “whoever, having the charge or custody of an animal, either as owner or otherwise, inflicts unnecessary cruelty upon it, or unnecessarily fails to provide it with proper food, drink, shelter, sanitary environment, or protection from the weather, ... shall be punished ...”
“A law is unconstitutionally vague if it is not sufficiently explicit to give clear warning as to proscribed activities.... A law is not vague, however, if it requires a person to conform his conduct to an imprecise but comprehensive normative standard so that [people] of common intelligence will know its meaning.” Commonwealth v. Orlando, 371 Mass. 732, 734, 359 N.E.2d 310 (1977), quoting from Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). “Moreover, even when the outer boundaries of a law are imprecise, such imprecision does not permit a facial attack on the entire law by one whose conduct ‘falls squarely within the “hard core” of the [law's] proscriptions,’ ... particularly if greater specificity in the law is impractical.” Ibid., quoting from Broadrick, supra. “When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose....” Commonwealth v. Robinson, 444 Mass. 102, 105, 825 N.E.2d 1021 (2005), quoting from Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977).
In our view, the defendant cannot sustain his facial attack on the entirety of G.L. c. 272, § 77, because the phrase “sanitary environment” is sufficiently definite with respect to the evidence of the defendant's actual conduct in this case. See Orlando, supra. The judge found, with ample support in the evidence, that the conditions were unsanitary on two bases, the first of which is sufficient for our purposes here; namely, the defendant did not remove the dogs' fecal matter in a regular and thorough manner, which resulted in the dogs living in filth.
Officer Breault testified that the dogs were kept in “sort of a make-shift kennel” that contained “a lot of feces.” He testified that the dogs “were [lying] in their own excrement.” Several of the Commonwealth's witnesses testified to the very strong odor of urine and feces both inside the house and in the kennel area. The dogs' kennel area had a bare earth floor with large holes and no bedding for the dogs. Additionally, pieces of metal fencing and grating that could injure the dogs “was completely covered with fecal matter in various degrees of decay ... [,] and [contained] dogs [that] were covered in feces and urine.” Finally, Officer Breault testified that there was fecal matter in the kitchen, that the Defendant began to hose down the kitchen floor while the police were present, and that the defendant then pushed the hosed fecal matter into a hole that appeared to go into the basement.
However the term “sanitary environment” might be seen to apply to cases at the margin, the evidence in this case shows that the defendant's conduct here “falls squarely within the ‘hard core’ of the [law's] proscriptions.” Ibid.
The second basis was that the defendant placed grating in the dogs' living area that could damage the dogs' paws, and that the likelihood of injury increased the likelihood of infection and illness from exposure to the fecal matter.
Jury waiver. The defendant claims that his waiver of trial by jury was involuntary due to the unresolved nature of his change of venue request. We disagree. It was only during the latter stages of the judge's colloquy that the defendant first asked if the trial could be moved “out of town” due to the “heinous” nature of the allegations. The judge correctly stated that a motion for a change of venue had not been properly made and ruled, in effect, that she would not consider such a request.
The colloquy was then completed and the judge found that the waiver was intelligent and voluntary. The defendant properly does not take issue with the content of the colloquy itself since it was complete, nor does he suggest that his request to move the trial was properly supported. His contention is that without resolution of the requested change of venue, his decision to waive a jury was neither intelligent nor voluntary. The facts as developed during the colloquy belie this claim, however, and we find no merit in it.
A trial judge may order a change of venue if “there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial.” Mass.R.Crim.P. 37(b)(1), 378 Mass. 914 (1979). “A change of venue should be ordered only ‘with great caution and only after a solid foundation of fact has been first established.’ ” Commonwealth v. Toolan, 460 Mass. 452, 462, 951 N.E.2d 903 (2011), quoting from Commonwealth v. McCowen, 458 Mass. 476 (2010). No such showing was made.
Redirect examination on bias. We discern, likewise, no merit to the defendant's claim, made for the first time on direct appeal, of the ineffectiveness of counsel for having failed to inquire, on redirect examination, of police bias and harassment. As the record fails to support this claim “indisputably,” we need not consider it. Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344, 639 N.E.2d 1092 (1994). Compare Commonwealth v. Zinser, 446 Mass. 807, 811, 847 N.E.2d 1095 (2006). Moreover, the defendant does not identify other information he would have provided on further examination by his counsel.
Sentencing. The condition of probation that the defendant not engage in animal breeding had a proper basis in the evidence elicited during trial and was well within the proper scope of probationary purposes. Therefore, we discern no merit to the defendant's unpreserved claim that the prosecutor erroneously associated the defendant's case with “puppy mills” to improperly influence the judge in sentencing. Contrary to the prosecutor's recommendation for a sentence of incarceration, the judge placed the defendant on probation with this special condition.
We note that the governing statute was amended, effective October 31, 2012, after the defendant's conviction, to prohibit a person convicted of violating this statute generally from having contact with animals. See St.2012, c. 193, § 49.
Judgments affirmed.