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Durbin v. Board of Selectmen of Kingston9/15/2004
testify) immediately after the attack on Daniel under the excited utterance exception to the hearsay rule. See Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990) ("an utterance is spontaneous if it is made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability"); Commonwealth v. Whelton, 428 Mass. 24, 26 (1998) (same).
(3) No harm was caused the Durbins as a result of the District Court judge's denial of "Requested Rulings of Law" Nos. 4, 11, and 12, because even if each dog subject to a hearing and order under G. L. c. 140, § 157, must specifically be proven a "nuisance" by reason of a "vicious disposition" (but see Commonwealth v. Ferreri, 30 Mass. App. Ct. 966, 968 ), there was more than sufficient evidence in the record to warrant reasonable inferences supporting the finding that both dogs were involved in the attack on Daniel and that both dogs had on a number of occasions combined to engage in menacing behavior toward others in the neighborhood as, indeed, the District Court "specifically" so found.
(4) The District Court judge properly denied "Requested Ruling of Law" No. 5, because neither the plain language of G. L. c. 140, § 157, nor any case authority supports the Durbins' proposition that a dog cannot be determined to be a nuisance where the behavior complained of occurred on the property of the owner and did not interfere with the rights of the community at large. Compare Commonwealth v. Ferreri, 30 Mass. App. Ct. at 966-968 (District Court properly ordered removal of the defendant's dogs where behavior complained of was excessive and disruptive barking -- conduct subject to sanctions under the statute -- while on the defendant's own property).
(5) "Requested Ruling of Law" No. 6 was properly denied, as there is no authority for the Durbins' unduly restrictive interpretation of the statute that, in order for a dog to be deemed a nuisance by reason of vicious disposition, it must be proven that the dog was "accustomed to attack and injure mankind" and that the dog possessed "a general propensity" to be vicious to others. Even if the denial were erroneous, no harm ensued (as the Superior Court judge expressly determined) in light of the previously noted evidence that the two dogs had acted together in numerous acts of assaultive, menacing behavior that came perilously close to causing physical injury and frightened residents of and visitors to the neighborhood, both on and off the Durbins' property and in spite of measures they had taken to restrain the animals.
Conclusion
Although the Durbins offered evidence that might rationally have supported a finding that Bear and Sampson were not of "vicious disposition," the District Court judge had discretion to reject this evidence in light of the town's evidence demonstrating the contrary, which we conclude was sufficiently substantial to justify the disposal order. See note 7, supra. The town's evidence supported the judge's findings that both dogs had participated in the attack on Daniel; that the attack had in fact been a severe mauling resulting in numerous punctures, abrasions and bruising; that both dogs had exhibited aggressive behavior while on the Durbins' property toward individuals not on the property; that the dogs had previously escaped from the Durbins' yard and had threatened members of the community; and that on several occasions the Durbins were delinquent in taking steps to retrieve the dogs after they had run off the property. We also conclude that the District Court judge's order to destroy the dogs was not infected by error of law but was made in light of evidence he ha
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