County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – The trial court did not abuse its discretion in denying Appellant’s motion for mistrial following prosecutorial comments.  Judgment and sentences affirmed. Lombardi v. State, No. CRC 06-67 APANO, (Fla. 6th Cir.App.Ct. December 2, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

DIANE FRANCES LOMBARDI,     

                     Appellant,

                                                              UCN:            512010CF002657A000WS

v.                                                           Case No:      CRC-10-002657-CFAWS

                                                              Lower No:    08-8244-MMAWS

 

STATE OF FLORIDA,                                     

                     Appellee.                                             

_____________________________/

Appeal from Pasco County Court

County Judge Radford Smith

 

Lynda Beth Barack, Esq.

for Appellant

 

Kris Parker, A.S.A.    

for Appellee

 

 

 

 

ORDER AND OPINION

 

          Appellant argues that the trial court erred by denying her motion for mistrial.  Specifically, Appellant contends that she should be granted a new trial on her 42-count misdemeanor animal cruelty charges based on testimony and prosecutorial comments that the animals in her care were cannibalizing.  We find that the trial court did not abuse its discretion in denying Appellant’s motion for mistrial.  Any error, if any, was harmless and did not contribute to the verdict.  Therefore, this court affirms Appellant’s judgments and sentences, as set forth below.


FACTUAL BACKGROUND

On October 23, 2008, Appellant was charged with 42 counts of animal cruelty relating to dogs in her care.  All these first degree misdemeanors occurred on or about November 15, 2007.  At the trial held before Judge Radford Smith, on March 30, 2010, the following was presented:

Deputy Brian Welshans testified that he responded to a call on November 15, 2007 at 16034 Frost Drive in Hudson at 3:39 in the afternoon (referred to at trial as “Residence A”).  It was initially a death investigation at Residence A regarding Appellant’s sister who had passed, but the original deputy on scene called Deputy Welshans for the animal complaint.  By the time he arrived, several other detectives, animal control, and code enforcement were already there. 

Deputy Welshans briefly stuck his head into what he believed was Residence A’s front door.  He observed about three inches of debris on the ground and a strong odor.  The debris appeared to be dog feces that had turned white.  Deputy Welshans could not stick his head in for more than a couple of seconds without being sick.  Deputy Welshans was not able to walk through the front door because of the smell and that it was unsafe without any protective gear.  The first deputy had to force the door open to even look inside.  Deputy Welshans concluded that the house was absolutely not suitable for anybody to be living, and that the dogs were neglected.  Appellant explained to Deputy Welshans that the residence became in that condition because she was unable to care for the house and her sick sister. 

As animal control brought out the animals through the garage, Deputy Welshans observed them.  Some of the dogs were so malnourished that he could see their rib cages under their skin.  Some had open sores; some were covered in fleas.  A lot of them looked like they had been inbreeding together. 

Loraine Drake testified that she was an officer with Animal Service of Pasco County when she was called out to Residence A by her supervisor to assist Officer Morgan, who was already on scene.  They were eventually instructed to go into the house.  Many dogs were in the house, and forensics needed the area cleared of any dogs before they could get inside to investigate an incident involving a deceased person in the backyard. 

Appellant secured most of the dogs in the garage; however a few dogs remained in the house that animal control had to secure.  Officer Drake actually went into the home to secure those dogs left inside and was eventually able to secure all the dogs.  Officer Drake heard that Appellant was living inside the garage in Residence A.  The dogs were put inside the garage so that investigators could see the living conditions inside. 

Photographs of the inside of the house were entered into evidence, which depicted a house full of feces that were a couple of inches thick and mostly dried.  Most of the matter was feces that were old and dried with fresh laying on top and mostly runny stools.  The feces were all over the house.  Debris was knocked over with fecal matter piled on top, all in layers.  The photographs also showed smudges from paw prints, cobwebs, and dirt.  A lot of garbage debris was torn up, as well as a couch that was also torn up.  Another photograph depicted several layers of fecal matter, garbage bags, a fan, and household garbage that were embedded in the fecal matter.  More photographs showed even more layers of fecal matter, which were very runny and some appearing bloody.  There were a lot of dog food bags folded up and a lot of household garbage laying all over the floor with layers of fecal matter on top.  Yet another photograph depicted a torn-out recliner, dirt, fecal matter, and cobwebs with dirt and dust hanging on to it.  Another depicted what appeared to have been a dining room with fecal matter so thick it completely covered the floor, a dining room table, a chair, and a computer monitor.  The last photograph showed a lot of trash all over the floor with fecal matter on top, dog food bags, household garbage, a torn out couch, and fecal matter splattered all over the wall; the windows were cracked open with a fan in it. 

When Officer Drake entered the house, the fan depicted in the last photograph was running.  There were paw prints all over the wall as though the dogs would get fresh air from that point.  That one spot had more filth on the walls than any other.  It was still daylight outside; the inside was dimly lit with some light bulbs from a chandelier that had a lot of cobwebs and dirt on it.  While in the house, Officer Drake did not notice any dog food bowls or any source of water.    

Officer Drake did not see the garage before the dogs were moved in there.  Appellant told her that she lived in the garage.  By the time Officer Drake saw the condition of the garage, there were many dogs in there for some time.  They had already trashed that part of the garage, so it was difficult for her to tell what it looked like prior to the dogs being put in there.

Officer Drake also went into Residence B, which was across the street from Residence A.  It was deplorable as well, but the first residence was worse since there were more dogs living in Residence A.  About fifteen dogs were living in Residence B.  Officer Drake did not notice any food or water in that residence either, nor did she recall any ventilation. 

Officer Drake observed the dogs as they were brought out.  They were in poor condition—thin, dirty, and unsocialized.  In five years of being with animal control, this was the worst that Officer Drake had ever seen. 

On cross-examination, Officer Drake testified that a dog can go no more than seven days without water.  The dogs had to be captured using control poles because they were not socialized and not friendly.  Appellant did not appear to be in a condition to try to get the dogs into cages.  The dogs trashed the garage in only a couple of hours because they were jumping all over the place. 

On redirect, Officer Drake testified that it appeared to have been weeks, if not months, of fecal matter accumulated.  It was several inches thick.  The front door could not be opened.  The dogs had the run of the house based on the amount of fecal matter found throughout.  The only room that was not full of fecal matter was one back room where the deceased person had lived. 

Selena F. Morgan, also with animal services, testified that she was called out by the Pasco County Sherriff’s Office to assist at Residence A.  There were multiple dogs in the residence that needed to be secured so that they could enter.  Officer Morgan was the first animal control officer on the scene.  She was the responding control officer, but Officers Altman, Drake, Whitehead, and Mallory (the supervisor) were there too.  Multiple deputies were also there. 

When Officer Morgan first arrived, she met with Appellant so that she could secure the dogs for the deputies.  Officer Morgan entered Residence A with Officers Drake and Altman for a few minutes after Appellant had secured the dogs in the garage to make sure that all the dogs were secure.  Officer Morgan similarly described all the photographs that were already entered into evidence and testified that they were a fair and accurate depiction.  Officer Morgan described the smell in the home as “just unbearable” and “horrendous,” as the residence was completely covered with feces and urine.  Her eyes were watering; it was hard to breathe from the ammonia smell.  She did not see any deceased animals or carcasses inside the house.  The dogs she did come into contact with were emaciated, extremely thin, sickly, short hair, dull coats, and very unsocialized; they all looked to be in horrendous health.  Officer Morgan did not see any water source or any food bowls the entire time she was in the house.  There were approximately 35 to 40 dogs, but she did not count them one by one.  In all of her time with animal control, this was the worst that Officer Morgan had ever seen. 

On cross-examination, Officer Morgan testified that she had been called out before on complaints about Appellant, but all the complaints that she was aware of were closed as unfounded.  Officer Morgan agreed that photographs were not taken of every room in Residence A.  At least one dog had since been returned to Appellant.  When Officer Morgan arrived, she recalled seeing some dogs in the backyard, which were the same dogs she had seen when she went out there a week before.  She never had a chance to see the bathroom area of Residence A.

Officer Drake was recalled.  She testified that she had an opportunity to observe the bathroom.  A photograph, which Officer Drake described as a black-looking toilet and fecal matter, was introduced into evidence.  Officer Drake just walked by and looked, but did not go into the back bedroom.  A photograph of the bedroom with a lot of trash, dog food bags, and fecal matter was entered into evidence.  Officer Drake could not tell if anyone was living in that room or not.  Officer Drake described Residence A as a medium-sized, one story house with five rooms and one or two bathrooms. 

Ronald Altman testified that he was an animal control officer, who was called out to Residence A in November 2007.  When he originally arrived, animal control was assisting the sheriff’s office in gaining entry into the house.  Officer Altman entered the house with the sheriff’s deputies.  He was inside for less than a half an hour.  Officer Altman described the same photographs entered into evidence as largely depicting debris, fecal matter, and empty dog food bags.  Officer Altman walked into one bedroom at the backside of the house.  He did not see any food or water bowls.  The dogs were thin, on the emaciated side, not sociable, and had to be brought out on control poles.

Officer Altman also went into Residence B across the street.  The conditions were similar to Residence A, except that he did not recall as much of the fecal matter as hardened.  There were about fifteen dogs at Residence B.  Officer Altman did not recall seeing any food or water there.  The air was stagnant, probably from no air conditioning and no ventilation.  Officer Altman could not recall whether there were some dim lights, or if they had to use flashlights.  He did not go into the first house’s garage or speak with Appellant that night.  Officer Altman had never seen anything worse. 

On cross-examination, Officer Altman testified that the extraction took place in the evening when it was starting to get dark, but he was not part of the extraction.  He believed that there might have been a fence around the backyard.  Officer Altman was aware that Appellant went through a custody hearing and one dog was given back to her. 

Carol Whitehead with animal services testified that she was called out to Residence A to assist other officers with an animal cruelty case.  She was involved with impounding the dogs.  All the dogs were thin, not cared for, and had fleas.  Ms. Whitehead did not go into the residence, only into the garage.  The garage had a lot of debris, urine, feces, and dog food.  All of the dogs were in there at one time.  The urine and feces were all fairly fresh.  It did not appear that any of the dogs were living in the garage.  It appeared that someone was living in the garage because there was a couch and some other furniture in there.  Appellant told her that there were about 25 dogs in the garage and that she provided for them by giving them food and water every day.  For the amount of dogs, this was the worst case Officer Whitehead had ever seen. 

On cross-examination, Officer Whitehead testified that each officer that impounded a dog would take the dog directly to a veterinarian to be examined. 

On redirect, Officer Whitehead clarified that Appellant stated she fed the dogs by taking a large bag of dog food, breaking it open, and throwing it on the floor. 

Kevin Mallory, a supervisor with Pasco County Animal Services, testified that he was on his way home, but had heard about the incident and decided to stop by to see if he could assist.  He had an animal transport vehicle that he brought.  Once an animal was taken from the garage, the veterinarian (Dr. Spencer) would examine the animal.  After the animal was examined, it was loaded onto a vehicle.  Officer Mallory never went into the garage; the animals were brought to him.  Most of the dogs looked very similar to each other.  Sometimes when a dog was put on a control pole to remove it from the garage, the other dogs would try to attack it.  The dogs were not friendly to humans.  It was questionable whether or not Officer Mallory had seen worse; he had seen other conditions that were comparable, but this would definitely rank up there. 

On cross-examination, Officer Mallory testified that he recalled empty dog food bags, but not any full ones.  He never went into the house. 

On redirect, Officer Mallory testified that about 4,000 dogs are euthanized each year in Pasco County. 

Annette Doying with the Office of Emergency Management in Pasco County testified that she received a call from animal control asking for a response from the hazardous materials team to do some air monitoring.  They suspected that there would be high concentrates of ammonia, which is a byproduct of urine, and hydrogen sulfide, which is a byproduct of feces.  She had responded to two other animal hoarding calls in her career. 

Ms. Doying went into Appellant’s house wearing Level C protective gear.  It is a coated Tyvek suit with built-in booties that zips up under the chin and an elasticized hood.  It is coated with an impermeable coating so that no liquid or powder can permeate the suit.  She also wore taped on triple gloves, rubber boots with the suit tucked in, and a full-face air purifying respirator with ammonia filter cartridges.  Her partner, Paul Latham, also went into the house with a suit.  It was a federal requirement that two enter at once.  Subsequent to entry and conducting the air monitoring, they assisted code enforcement, the building officials, and some of the animal control officers with their selection, donning, and use of personal protective equipment similar to what they wore. 

Ms. Doying entered both houses.  It was difficult to open the front door in Residence A because there was debris behind it.  They entered through the living room.  It was very dark, and they chose to use flashlights.  There was a lot of disarray and fecal matter, but she could not smell anything because of her protective gear.  The couch cushions were all a-tumble and every surface of the couch was covered in feces.  There were a lot of insects all over the walls and ceiling.  Crickets were crawling everywhere.  As they proceeded down the hallway, Ms. Doying observed a partially skeletonized dead dog in one bedroom that was dark and insect-filled with feces everywhere.  Ms. Doying was wearing black mud boots that came just below her knee, and it was very squishy.  They had to proceed carefully because there were a lot of rip hazards to their suits and they could not quite see what they were in.  There was a back room that had a window open, which was significant to her findings.  Overall, Residence A was very cluttered, disarrayed, and covered in feces.  Ms. Doyer did not notice any sources of water or food bowls for the dogs.  There were dozens of dog food bags between the two homes.   

Ms. Doying was shown the photographs entered into evidence, which she described as typical of what she saw—a lot of fecal matter covering high and low; personal furnishings that were a-tumble, obviously long disuse; an abundance of empty, ripped, dry dog food bags scattered about with fecal matter on top.  Ms. Doying described another photo of as a good representation of the quality of the fecal matter.

Ms. Doying could feel a wet, moist squishiness under her boot, but as a hazardous material technician, she was most concerned about the dried fecal matter.  As the dry fecal matter was impacted by her foot, it would dust up and float into the air and become something that could endanger someone through respiratory means.  When they used their flashlights, they could see the dust smote that was probably ten times the normal concentration of powdery substances moving through the air.  This is what the dogs were breathing.

Ms. Doying explained in great detail about how she measured the ammonia levels using a Drager gas analyzer.  In the case of ammonia, she looks at three things: Immediately Dangerous to Life and Health (IDLH), which is at 300 parts per million, Short Term Exposure Limit (STEL), at 35 parts per million someone in that condition for fifteen minutes will suffer ill health effects or possibly die, and Permissible Exposure Limit (PEL), a time-weighted calculation to determine if someone were to work eight hours in that condition would suffer chronic health effects, which is at  50 parts per million.  These values were determined by the National Institute of Safety Standards based on mammal testing. 

In Residence A, Ms. Doying measured in the hallway near the kitchen (the center of the house), near the back bedroom, and in the garage.  In Residence B, the garage, living room, and back bedroom were tested.  In Residence A, the hallway gave a reading of 7 parts per million, while the garage gave a reading of 2-3 parts per million.  In Residence B, there was only a trace reading in the garage, but 15 parts per million in the living room.  Some of the immediate known effects to staying in such an environment with more than a trace reading would be that one would immediately become desensitized to the smell, and within ten to fifteen minutes one would not smell it at all.  The next thing that happens is that one will have small scale lung damage that will eventually break down the lung tissue and begin to introduce water vapor into the lungs.  Long-term exposure to ammonia is known to create pulmonary edema, which is basically drowning in your own lungs, and the body can no longer alter that.  Ammonia and hydrogen sulfide will create new gases as they decompose.  The reading in the hallway and garage of Residence A were lower due to the ventilation—the window in back bedroom and front door were open, along with the garage door that were not normally open.  In her opinion, the dogs could have suffered long-term, negative, respiratory effects from the ammonia levels.

On cross-examination, Ms. Doyer clarified that they used flashlights despite the sun being out because the bulk of the interior home was very dark with the exception of the back room where a window was open. 

On redirect, Ms. Doyer further explained that no lights were turned on prior to her entry.  The fecal matter literally covered the windows.  She specifically remembered two windows without any curtains or blinds that had fecal matter completely splattered on the glass.  It is standard procedure to not activate any electricity in case there is an explosive gas environment. 

Paul Latham with the Office of Emergency Management testified that he was summoned to both homes.  His job was to evaluate the atmosphere and determine whether or not it was a safe environment for those involved in the operation.  Upon entering Residence A, they had some challenges opening the front door due to the fecal matter.  They had to maneuver around a lot of tripping and falling hazards throughout the house.  They were concerned about ripping their suits on sharp, pointy objects.  In some areas, the fecal matter was six to eight inches deep.  Since there was no lighting in the house, they had to use flashlights.  The sun was still out because they arrived around four o’clock.  There was one deceased animal in a bedroom on the left side as they walked down the hallway to the back of the house.  Mr. Latham did not notice any sources of water or bowls for food.  There were empty bags of dog food throughout the home and garage.  Dog food was poured around counter tops on all floors for the dogs to eat. 

On cross-examination, Mr. Latham testified that he did not see any bowls or the animals’ water bucket.  He also testified that the fecal matter was six to eight inches deep in some locations. 

Dr. Terry Spencer testified that she was the veterinarian for Pasco County Animal Services.  There are standards of care that are the minimum that any animal should receive to be treated humanely: clean food, regular feedings, clean water, adequate space, daily exercise, and not being housed where they are competing for resources or with incompatible animals (such as intact males housed with in-heat females, or puppies housed with adults).  Puppies can be injured by the adults, and infectious diseases can be transmitted from adults to puppies that do not have adequate immune systems.  The number of dogs alone would not have met the conditions; no more than twelve adult dogs are recommended to be kept in one enclosure at any time.  That would require them to have adequate cleanliness to prevent them from being in their own waste matter and from being on any sharp surfaces or debris that could cause injuries to them as they move around the facility.  If these requirements are not met, animals will begin to show signs of neglect, such as deteriorating body condition, getting thinner, not getting adequate food, showing signs of parasitism, infectious diseases, lack of socialization, and any type of diseases that were being vaccinated.  Leaving intact males with females that are in heat could cause the dogs to continue to breed and multiply, which is what happened.

Dr. Spencer was called out to Appellant’s house on November 14, 2007 at about four o’clock in the afternoon and worked until close to midnight.  Dr. Spencer’s job was to examine the animals as they were removed to determine who needed immediate veterinary care and who needed further workup.  She never went inside either of the homes.  Dr. Spencer examined the dogs on the driveway in front of both houses, as it was not possible to examine the dogs inside.  As it got darker, she worked from headlights from cars.  Animal control officers would go in the garage and remove the dogs one by one on a rabies control pole, then bring them to Dr. Spencer, who would examine the dog on the driveway before loading it onto a truck.  Appellant was at her side as each dog came out and told her its name and history. 

Dr. Spencer testified that there were surprisingly few puppies with over 40 dogs.  It would not be a good situation for puppies.  They certainly would be exposed to infectious diseases.  Puppies are much more susceptible to viruses that adults could survive or be shedding all the time, such as parvovirus.  Puppies would certainly die where there are a lot of feces and unvaccinated animals.  Plus, in a situation where there is competition for resources, like food and water, a puppy would not survive.  Defense counsel objected based partly on speculation and that the State was implicating a prior bad act that there were puppies that were killed, which would make it a felony animal cruelty case.  The State argued that it was Dr. Spencer’s professional opinion as to the strange circumstances that there were not many puppies in this group of dogs.  The trial court overruled the objection, which now serves as the basis for this appeal. 

Dr. Spencer continued that puppies would not be able to compete with an adult male or female dog for food.  Where resources are limited, adult dogs would compete with their own young for food, and not necessarily provide for them.  They would not be able to survive in a dog fight with an adult dog.  The State inquired whether it was Dr. Spencer’s opinion that the dogs were cannibalizing.  Defense counsel again objected before Dr. Spencer answered.  The State argued that it was Dr. Spencer’s opinion based on what she saw.  Defense counsel moved for a mistrial based on the opinion that the State was seeking to inflame the jury by asking about cannibalism when there was no evidence.  The trial court denied the motion for mistrial.  The State never inquired further as to the cannibalism.

Dr. Spencer testified that she examined 43 dogs.  There were 45, but two escaped by slipping through the door and running off the property.  As each dog was taken out, they were each given plastic, temporary, ID collars that were numbered.  The dogs were given a shelter ID number once they were transported to animal services.  Dr. Spencer tried to do a standard physical exam on each dog from head to toe, using the Tufts Animal Care Condition Scale.     

Dr. Spencer testified as to each and every dog using the shelter identification number and its medical record.  Every dog had a flea infestation; some were so covered that they were spraying them at the site with anti-flea spray.  A photograph of each dog was entered into evidence with the exception of D7694.  Dr. Spencer testified to the condition of each dog.  There were two young puppies: D7689 and D7691.  They were Chihuahua/Shih-Tzu littermates who were six to seven weeks old, still learning to eat, with parasites and fleas.  They were taken out of the garage with their mother first because they would not have survived in the garage with all the other dogs.  Two other puppies were later removed from the garage: D7719 and D7722.  D7719 was a third puppy, who was underweight, pale and had a heart murmur.  A blood test revealed that this puppy was anemic, and it was positive for hookworms and whipworms.  D7722 was a fourth puppy with fleas, hookworms, and whipworms. 

As a whole, the dogs were thin or emaciated, full of fleas and worms, had various parasites and skin issues, and wounded.  The adult male dogs tended to have a better physique than the others because they were able to compete better for food than some of the less aggressive dogs.  Dr. Spencer was particularly worried about D7704 and D7705.  D7704 appeared to be starving to death: emaciated with no body fat at all, heart arrhythmia (anemic to the point where it was not pumping blood properly), body could no longer produce red blood cells properly, and inadequate nutrition.  It also had hookworms and whipworms like all the other dogs.  Dr. Spencer was most concerned with D7705, which was emaciated, lacerations on its face, standing skin infection with crusts and wounds.  It was beyond having an abnormal heart rhythm; it had a very slow heartbeat in the midst of all the stress.  Dr. Spencer was worried that this dog was about to die.  It did not have much energy to continue—it had parasites, muscle mass loss, no body fat, an infection, and septic, which could have been avoided with diligent care.      

Almost all the dogs were given a body condition score of four to five with five being the worst.  The exceptions were D7721 and D7727, who were given a three and D7726, who was given a two.  Some dogs were too wild to be examined beyond a visual physical exam, but photographs were introduced of those dogs and testimony further revealed their physical condition. 

Appellant told Dr. Spencer that they were all her dogs in her house, although some of the dogs may have belonged to her daughter; and there were a couple that some man claimed he had left with her.  There was no doubt in Dr. Spencer’s mind that all of the dogs were Appellant’s.  There was no mix up with the dogs since once the dogs were taken off the animal control trucks, they were placed in a separate building away from the rest of the population at the shelter.  The identification tags were given to the dogs when they were taken off the trucks and put in the shelter. 

It was improbable that a dog could live in those conditions and not have fleas or some sort of health problem.  Appellant was by Dr. Spencer’s side when she examined the dogs.  Dr. Spencer had no way of knowing if Appellant was accurate with the names that she told her, but Appellant got confused with many of the dogs.  She would call one Rocky and then the next dog she would say that the other dog was the real Rocky.  Dr. Spencer would record Rocky I or Rocky II.  They got up to Rocky III several times.  The younger dogs that were six months or younger were adopted into homes.  They tried to put four of the younger ones that were not quite social enough into rescue homes, but no one would take them.  The dogs that were not able to be adopted or rescued were euthanized.

On cross-examination, Dr. Spencer testified that the photos of the dogs were taken at the shelter either the next day or within a couple of days.  Dr. Spencer asked Appellant at the scene for medical records, but she could not produce any.  Appellant told her that Babette was taken to PAWS and de-wormed two weeks prior.  Appellant also told her that Suzy, a different dog, had been vaccinated and licensed.  Dr. Spencer did not recall any other health statements made by Appellant.

On redirect, Dr. Spencer explained that not all the dogs were tested for worms because they were not able to get independent fecal samples since some were in groups.  There would be no way to tell from which dog the fecal sample came.  It was not feasible for them to take pictures of all the dogs at the scene.  Dr. Spencer was not provided with any documentation to show that any of the dogs went to the vet.  Even if there was documentation, it would be difficult to identify which dog would have been to the vet since they all looked similar.

On recross, Dr. Spencer explained that she does not normally show up on the scene.  It was too dark to take pictures.  The State rested its case, and Appellant moved for a judgment of acquittal, which was denied. 

Debra Spencer testified first for the defense.  She owns the Pet Food Warehouse in Hudson.  Ms. Spencer sold Appellant milk replacer about five or six times prior to November 2007.  Milk replacer is a supplement for newborn puppies that do not have a mother to nurse, or for pregnant or lactating females.  Ms. Spencer did not recall Appellant buying any other food or identification tags.  When shown a dog tag, Ms. Spencer agreed that it could have come from her store. 

On cross-examination, Ms. Spencer testified that she did not know Appellant’s name until recently.  She recognized her face and voice.  Ms. Spencer did not recall Appellant buying 42 identification tags.

Dr. Astrid Miranda testified that she was employed as a veterinarian at Banfield, which was in the PetSmart in Trinity.  Appellant brought in a dog named Suzy for the first time on January 15, 2008 (about two months after the incident) and for the last time on May 17, 2008.  According to the paperwork, Suzy was not malnourished and did not have a flea infestation.  Suzy appeared friendly and socialized.

On cross-examination, Dr. Miranda testified that it was her understanding that Dr. Spencer with Pasco County had initially started doing the heartworm treatment.  Appellant wanted to try a holistic approach of avocado and two cigarettes that was recommended to her from a friend.  Dr. Miranda explained to Appellant that the court stated that she had to treat it.  Appellant wanted to try a couple of holistic treatments first.  When Appellant returned, the dog tested negative.  Dr. Miranda assumed that either the initial treatment worked or that the worms might have died due to their age.  Appellant had also purchased a heartworm prevention product. 

Pamela Lawson testified that she was the office manager at PAWS (“Pasco Animal Welfare Society”) Spay and Neuter Clinic.  Appellant brought in a litter of puppies on October 10, 2006 to be dewormed and have their first set of vaccines.  On November 1, 2007, Appellant came in with a five-year-old Chihuahua mix, named Babette, for deworming and to have her anus expressed.  The records did not indicate that there was any flea infestation, social problems, or malnourishment. 

On cross-examination, Ms. Lawson testified that she did not see the dogs or have personal knowledge.  The records indicated that Babette, Teddy, Cupcake, Puppy 3, and Puppy 4 were seen. 

Dr. Patricia Weston-Bogart testified that she owned the Best Choice Veterinary Hospital and had been to Appellant’s home several times in March of 2000, January of 2003, February of 2005, December of 2006, and May of 2007.  She recalled seeing Bear, but not all of the dogs.  On one of those instances, she saw several dogs and just did rabies vaccines.  In May of 2007, Dr. Weston-Bogart saw six dogs for rabies and licenses, which was brought on by an animal control request.  She always does full exams on all the pets; they were deemed healthy enough to receive the rabies vaccine.  Dr. Weston-Bogart determined that the six dogs were a little thin.  Bear had a sore on his left hip and an ear infection.  Appellant stated that Lucky had been having seizures, so a heartworm test and blood was taken.  Only one fecal was done due to Appellant’s financial constraints, which was done on the thinnest dog, Buddy.  Buddy was determined to have both hookworms and whipworms.  Appellant did not purchase a dewormer from Dr. Weston-Bogart because she stated that she had already purchased an over-the-counter dewormer.  Dr. Weston-Bogart commented to Appellant that the dogs could also have tapeworms since one of the dogs (Bear) had a lot of fleas.  The other dogs had fleas, just not as bad as Bear.  Dr. Weston-Bogart told Appellant that the over-the-counter product she had purchased only treated hookworms and whipworms.  On May 14, 2007, Appellant called requesting the dewormer from Dr. Weston-Bogart that would take care of the hookworms and whipworms, but she never picked it up.  The dogs she saw were shy, but not skittish and hiding.  Bear, whom Dr. Weston-Bogart had seen before, was a tall, laid-back Irish wolfhound, who was not nearly as shy.

In her opinion, the dogs were being cared for at that time.  Appellant “expressed an interest,” a term Dr. Weston-Bogart stated she was using broadly, in fixing the things that she noticed were wrong with the dogs.  Bear had an ear infection, which was better than it had been on past visits.  Appellant commented that she had been cleaning his ears.  Appellant brought out medications that she thought had been dispensed from another veterinarian, but they actually had Dr. Weston-Bogart’s labels on them.  They determined that the antibiotic Cephalexin was probably to treat the sore on Bear’s hip, which was probably from fleas.  The anti-inflammatory Mometamax could have been used to treat the ears, but she did not have enough, so Dr. Weston-Bogart was going to dispense some more, but Appellant did not get it.  The two bottles of medication were entered into evidence. 

Dr. Weston-Bogart also discussed with Appellant how she was feeding her dogs—putting the food out on the garage floor in a big pile, not in a bowl, and allowing all the dogs to eat together.  Dr. Weston-Bogart recommended that she get separate bowls for each of them.   

On cross-examination, Dr. Weston-Bogart stated that she saw Bear, Lucky, Buddy, Suzy, Judy, and Randy.  They all had fleas, but Bear’s were the worst.  Appellant only allowed her to test one dog for worms, which wound up being Buddy, who was the thinnest and definitely underweight.  Dr. Weston-Bogart never went inside the home or even to the front door; Appellant always met her on the driveway.  Dr. Weston-Bogart has a 30-foot motor home that is air-conditioned, where they met.  In her professional opinion, 30 or more dogs should not be housed together unless it is a kenneling or breeding facility with special licensure and care.  If Appellant followed through on purchasing a dewormer, it was never from her.  In her professional experience, the dogs that Dr. Weston-Bogart saw were not properly cared for. 

Paul Heinerth testified that he had been Appellant’s next door neighbor since 2001.  The first week of November in 2007, he saw Appellant playing with a handful of puppies out in the yard.  He had heard dogs barking in the back, but had not heard or seen any other dogs.  Mr. Heinerth described the puppies as cute, fat, and sassy; they had round bellies and were wobbling.

On cross-examination, Mr. Heinerth testified that he only heard three distinctive barks.  He never went or saw inside Appellant’s house.  She had kept her yard in the same condition as others in the neighborhood.  Mr. Heinerth still lives there, but Appellant does not since her house is gone. 

On redirect, Mr. Heinerth explained that the house across the street is still there.  Appellant is not living there; someone else is though. 

On recross, Mr. Heinerth testified that he did not notice any smells emanating from the house until the last month.  He never noticed any windows open.

Rachel Lombardi, Appellant’s daughter, testified that Appellant was living in her grandfather’s house at 16034 Frost Drive (Residence A) in November of 2007.  Appellant also had a house across the street.  Rachel Lombardi lived at both houses up until about one month before the incident occurred. 

Rachel Lombardi testified about the progression of dogs that her mother owned, starting with Suzy (Rachel brought to her mother) and Bear (a neutered, Australian Shepherd).  Appellant then rescued a dog that was starving and on the streets.  About a week before the occurrence, Rachel Lombardi stated that she only saw fifteen, fat, healthy puppies. 

Rachel Lombardi further testified that the house looked nothing like in the photographs; the only thing that looked accurate was the dog food bags.  Most of the dogs in the photographs did not look like any of the dogs Appellant owned.  Rachel Lombardi testified that she had seen her mother go a whole day without eating to feed her animals; she fed the dogs more than herself.  Even after defense counsel pointed that dogs cannot work a tap, Rachel Lombardi was unable to explain any more than that the dogs drank from the faucet or outside in the garage by the water hose.  Rachel Lombardi testified that the house was in perfect condition when she was inside two weeks before. 

On cross-examination, Rachel Lombardi clarified that she lived in Residence A until about October of 2007.  Rachel Lombardi guessed that Appellant had around 20-35 dogs, but it was possible that she had 35 to 40.  Rachel Lombardi did not think most of the dogs in the photographs were the same ones that her mother owned.  Rachel Lombardi believed that someone came into her mother’s home and placed petrified, cemented urine and feces on the floors, walls, and windows.  In the alternative, someone might have digitally superimposed the pictures.  Rachel Lombardi did not think it was possible for dogs to get their feces in some of the places that were shown in the photographs.  Animal control and all the other people that went into the home were lying.  Rachel Lombardi testified that Appellant lived in the garage at the end because there were too many animals. 

Ralph Jacobson, Appellant’s cousin, testified that he would stop in to see his aunt and uncle (Appellant’s mother and father) every Tuesday for the past ten to twelve years.  He had not been in the house for about a month prior to the occurrence, but at that time, there were no problems or dog feces on the floors.  Appellant had a lot of dogs; he never counted them though.  Appellant always had big bags of food.  There were three or four basins of water around the floor and in the garage. 

When shown the photographs of the dogs, Mr. Jacobson only believed nine of them could have been Appellant’s dogs; he was uncertain about six; the rest he did not recognize.  The dogs were fine about a month prior to the incident.  They were mostly in the yard running around, about fifteen at a time.  When shown the photographs of the house, Mr. Jacobson testified that the house did not look like that the last time he saw it.  Appellant gave him a part-Chihuahua dog four to five days before the incident.  He took the dog to the vet, and it was determined to be in good shape with no fleas.

On cross-examination, Mr. Jacobson testified that he saw Appellant almost weekly before her house was demolished.  The last time he was inside the house was about four to five weeks before the incident.  He did not go in all of the rooms.  Mr. Jacobson went into the living room, the Florida room, the kitchen, and the garage.  When shown the photographs of the house, he could not recognize the rooms.  The house had a musty dog smell, but not an ammonia smell.  The basins of water held at least a gallon of water.  The food bags were split open with food inside.  The State questioned how Mr. Jacobson had claimed to visit every week, yet he could not recall the street name and claimed to know which dogs she owned and which Appellant did not. 

Scott Jones testified that he was Appellant’s lawn guy, who also did shopping for Appellant because she did not have a car.  He would go to Appellant’s house every day, but never went inside because there was no reason to do so.  Appellant had twenty dogs outside all the time, all of which were healthy.  When asked whether the dogs had fleas, he responded that all dogs have fleas.  Mr. Jones bought five bags of dog food every two days.  Appellant would give the dogs five gallon buckets of water in the morning and at night.  He also bought flea medicine for Appellant from Wal-Mart.  Mr. Jones also bought Appellant a garden hose.  Appellant would go shopping with Mr. Jones a lot of the times.  Appellant paid Mr. Jones for her services.  Mr. Jones was shown photographs of the dogs, but he did not recognize a single dog as belonging to Appellant. 

On cross-examination, Mr. Jones testified that Appellant pays him well, and he does not want to see her in trouble.  Mr. Jones clarified that he was in the house only once, on the day that they took the dogs out.  He was in the back bedroom.  Mr. Jones also remembered that he was in the house a second time, after the house was condemned.  He crawled in the house through the back window so he would not get bitten by a dog.  Mr. Jones was confident that he could recognize all of Appellant’s dogs because he had seen them a lot outside.  He never smelled anything unusual.  Appellant had about three water buckets and a big pot too. 

On redirect, Mr. Jones testified that he was in the room that he identified after the dogs had been removed and after the house had been condemned, about five to ten days after the incident.

On recross, Mr. Jones testified that the time he climbed through the window because he did not want to be bitten by dogs was before the house was condemned and the dogs were still in the house.

Appellant testified that she was 61 years old and retired.  She moved into Residence A on November 6, 1996.  Her parents lived there for years prior to her moving in to take care of them and her crippled sister.  Appellant got her first dog, Bear, from animal control in 1998.  Although she no longer had Bear in November of 2007, his dog tags were entered into evidence.  Appellant’s daughter brought her Suzy when she was a puppy.  The dog Appellant took in was Hank, who hung around her house and ate all the cat food she had put out for the stray cats.  Appellant admitted that she had 38 to 42 dogs in November of 2007.  The number of dogs grew when Hank “kind of” got Suzy pregnant.  Suzy had a litter of six puppies, but three of them died from parvovirus.  Appellant did not think that anyone would want to adopt the surviving puppies with parvovirus, and she thought, “What’s one more?”  Those puppies grew up and had more puppies with the same parvovirus.  Appellant was able to save a number of them, but could not adopt them out.  She did not surrender the puppies to animal services because they will put down a non-purebred dog that is sick within three days.  Appellant called ASPCA a number of times, but they were always too full.  Appellant eventually fell in love with them and they became like her children. 

Appellant testified that she fed and watered the dogs.  She had a five-gallon water bucket in the house and a big stainless steel pot in the kitchen.  Appellant alternated the dogs between her house and her father’s house.  She took the dogs outside for exercise; she had a six-foot concave fence.  Appellant cared for her sister, who had cerebral palsy.  She lived to 65, beyond where she should have, dying on November 6, 2007.  Her sister died at home, but not in the house.  Things got away from Appellant when her sister was hospitalized for over a month just prior to her death. 

Animal control had been to her house prior to the November 14, 2007 incident.  The neighbor behind her house constantly called animal control, even when she only had four dogs at Residence A.  The animal control officers made her bring the dogs outside to view the dogs; all the allegations were unfounded or some dogs would only need to get their licenses renewed. 

Appellant testified that her house was not as bad as the photographs depicted on November 14, 2007.  The State had control of her house after the incident.  Appellant recognized Babette and her two babies: Cupcake and Baby Bear from the photographs entered into evidence, but denied owning the other dogs (although a few she claimed looked similar but were too thin, bleeding, or the wrong size). 

Appellant did her best to care for the animals.  She did not just give them dog food, she would make them dog food sandwiches.  The reason why Appellant would put the food on the floor was because there were so many of them; that way, everyone would get some.  She would take a second bag and sit it down in the middle of the kitchen floor so they could munch on that after they got full from eating what she put on the floor.  Appellant would lug the water over to the house across the street.  She would change the water twice a day, even if it did not need it.  If she was stuck in the hospital for a couple of days, they could drink out of the toilet. 

On the afternoon of the incident, there were already about 15 dogs (mostly puppies) out in the yard and five or six adult dogs in the house across the street with one about to give birth (Dodie).  They asked if there was a way to get the other dogs out, and Appellant came up with a plan to put them in the garage.  It was dark when the veterinarian asked Appellant what the names of the some of the dogs were.  Appellant further testified that she bought Frontline all the time.  At the time they took the dogs, they were ready to be de-flead again.  She also used what she called “20 Mule Team Borax” on the carpet for bugs.

On cross-examination, Appellant clarified that she had two dogs named Bear.  Big Bear died in 2006, and Little Bear was a puppy at the time of the incident.  Appellant admitted that caring for 42 dogs in her home at the same time was too many, and she knew that.  They had food and water, and she knew she needed to decrease the population.  At the same time, her heart was not going to let them be destroyed. 

Appellant did not intentionally let it get out of control.  She had two homes, two backyards, and plenty of ventilation, but she could not take them outside to use the bathroom because she was in the hospital eight to ten hours a day.  She left all the big dog food bags out after she fed them, hoping they would go to the bathroom on there.  Before her sister got sick, she would take the dogs out during the day and let them out again at night.  She had a backyard; all she had to do was open the sliding glass door and the dogs would go outside.  Both homes had a fence, and she would rotate the dogs.  Appellant believed that they were getting proper exercise every day, although they could have gotten more when she was in the hospital.  Her problem was that she was not getting help from anybody; her daughter could have helped her more, but she did not (She is young and pursuing a singing career.).  Appellant kept the dogs in plain view so that anyone coming by could adopt them if they were interested.  Appellant did not like having that much responsibility; it was just too much.  Appellant furthered, “I was like Old Mother Hubbard, you know, I lived in a shoe.  I had so many children, I didn’t know what to do.  That’s really what it amounted to.  But as far as cruelty, my God, never.  Never could I ever hurt an animal.”  Appellant did not know that her sister was going to get sick, so she could not adopt them out or take them out because she was in the hospital.  Five of her dogs had six or seven puppies, all in the same week.  Appellant tried separating the intact males so that they would not breed.  The State asked Appellant, “How can you separate this many dogs in one home?” to which Appellant responded, “Can you give me an answer to that?”  When told Appellant was the one that had to answer the questions, she stated that she had a lot of hope and believed something miraculous was going to happen.  Appellant had thought of selling her house and getting a farm.         

Appellant admitted that her house was bad, but not as bad as the photographs depicted.  It did not get that way all at once; it was a little bit at a time.  Appellant thought that the evidence had been tampered.  Appellant admitted talking to a newspaper reporter, who took a photograph of the inside of the house from outside. 

When Appellant had all the dogs, she would buy about five to six 15-pound bags of dog food every two days—one bag went to one house, and two went to the other across the street.  Appellant would go through the garage, not the front way where there were feces.  She would not use bowls; rather Appellant would spread it out nice and thick all around the clean floor in the Florida room.  Then she would get another bag and put that on the clean kitchen floor; the bag would be open and rolled down.  Appellant would go out to the water main on the side of the house, where she would fill up the bucket and carry it into the house.  Appellant would also fill up a stainless steel pot in the kitchen.  She would similarly feed and water the dogs across the street.  When Appellant went in at night, there was still water most of the time, but she would freshen it anyway. 

Appellant did not always live in the garage.  Appellant did not believe that the photographs of her house were a fair and accurate depiction; it was an over-exaggeration.  The other witnesses could have been deliberately lying or tampering with evidence by placing fecal matter throughout.  It is possible that a burglar came in and placed fecal matter in certain places because they were planning on stealing items such as the toilet bowl.  Appellant also did not believe that the Emergency Response team was being honest about the air quality or the bugs and crickets.  Appellant does not think that the witnesses who testified against her had a vendetta; those who work for the State stick together because they do not want to jeopardize their jobs. 

Appellant’s renewed motion for judgment of acquittal was denied.  The jury found Appellant guilty as charged to all 42 counts of animal cruelty.  On April 1, 2010, Appellant was sentenced to ten days jail time followed by 6 months consecutive probation for each of the 42 counts for a total of 21 years.  A timely notice of appeal was filed on April 27, 2010.                 

 

               

LAW AND ANALYSIS

          On appeal, Appellant argues that the trial court abused its discretion when it denied Appellant’s motion for mistrial on the basis that the questions and testimony about the lack of puppies at Appellant’s home only served to improperly inflame the jury.  On direct examination by the State, the veterinarian for Pasco County Animal Services, Dr. Terry Spencer, was asked why she thought that there were not many puppies out of the 42 dogs.  Dr. Spencer responded,

“That would not be a good situation for puppies to be living in.  They certainly would be exposed to infectious disease.  Puppies are much more susceptible to viruses that adults could survive or be shedding all the time, like parvovirus.  So puppies certainly would die in a situation where there’s lots of feces around and unvaccinated animals.  Plus, in a situation where there’s competition for resources, like food and water, a puppy would not survive that.  They would – ”

 

Defense counsel objected, arguing that it was speculation and introduced prior bad acts that puppies had been killed, which would amount to a felony animal cruelty case.  The defense further argued that any probative value was far outweighed by the prejudicial effect.  The State responded that it was a professional opinion given to the strange circumstance that there were not many puppies within the group of dogs.  The State furthered that it would be her professional opinion that the puppies could not survive due to the neglect and lack of necessities given to the dogs.  The trial court overruled defense counsel’s objection and allowed Dr. Spencer to testify freely. 

          The State asked Dr. Spencer to finish her response to the question as to why there were so few puppies.  Dr. Spencer testified that puppies would not be able to compete with an adult male dog for food or even an adult female.  She further testified that in situations where resources are limited, adult dogs would certainly compete with their own young for food, and not necessarily provide for them.  Puppies would not be able to survive in a dog fight with an adult dog.  The State asked if it was Dr. Spencer’s opinion that the dogs were cannibalizing.  Before Dr. Spencer could answer, defense counsel again objected and moved for mistrial, arguing that the State was seeking to inflame the jury by asking about cannibalism.  The State maintained that it was a professional opinion.   Even though the trial court denied the motion for mistrial, the State never inquired further as to the possibility of cannibalism.  Defense counsel renewed the motion for mistrial at the close of the State’s case and again at the close of all evidence.

          On appeal, a trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review.  Serrano v. State, 64 So. 3d 93 (Fla. 2011).  A trial court should only grant a motion for mistrial when the error is so prejudicial as to vitiate the entire trial.  Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008).  In this case, the trial court properly denied Appellant’s motion for mistrial. 

Under Florida Statute 90.402, relevant evidence is generally admissible unless precluded by a specific rule of exclusion.  The testimony regarding the possibility that adult dogs were competing with and possibly preying upon younger dogs, as a result of Appellant’s neglect in caring for these animals, was relevant to establish the charged crimes.  Florida Statute 828.12(1) states that a person is guilty of animal cruelty when she “unnecessary overloads, overdrives, torments, deprives of necessary sustenance, or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in any vehicle, or otherwise, any animal in a cruel or inhumane manner.”  The misdemeanor statute includes situations in which an animal may be killed by neglect, but does not require the State to prove it was done intentionally, unlike Florida’s felony animal cruelty statute under section 828.12(2).  The testimony did not logically lead to the conclusion that Appellant herself was intentionally killing any of the puppies, nor was any such evidence presented.  It was worth the jury’s consideration, within this misdemeanor trial, to examine the expert’s opinion as to what was happening to the neglected dogs in Appellant’s home.  Therefore, Appellant’s argument that the killing of puppies would fall under the separate charge of felony animal cruelty is misplaced.  The testimony was relevant to prove the charges. 

Relevant evidence, however, can still be excluded if its probative value is outweighed by the danger of unfair prejudice, pursuant to Florida Statute 90.403.  While the allusion to dogs cannibalizing inside Appellant’s house could have inflamed the jury, its inclusion in the trial was harmless.  The evidence in this case was so overwhelming that there is no reasonable possibility that any of the claimed errors affected the verdict.  State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).  As such, any error, if any, was harmless.

Appellant further argues that she should be granted a new trial based on the similar comments made by the State during closing argument.  Although the record does not indicate that the specific question was answered about cannibalizing, the State argued, “The vet even stated that they were fighting each other for food so much that they may have been cannibalizing one another.”  Appellant contends that this comment was a misrepresentation of Dr. Spencer’s testimony and further served to inflame the jury such that Appellant did not receive a fair trial.  Appellant, however, never objected to this comment during closing argument.

For an issue to be preserved for appeal, it must be presented to the lower court.  Doorbal v. State, 983 So. 2d 464, 492 (Fla. 2008).  To have preserved the issue, Appellant needed to have made a timely, contemporaneous objection and state the legal ground for that objection.  It must have been the specific contention asserted as a legal ground for the objection below.  Farina v. State, 937 So. 2d 612, 628 (Fla. 2006).  A failure to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments on appeal.  Card v. State, 803 So. 2d 613, 622 (Fla. 2001).  When the unobjected-to comments rise to the level of fundamental error—an error that reaches down into the validity of the trial itself to the extent that a guilty verdict could not have been obtained without the assistance of the alleged error—an exception to the contemporaneous objection rule is made.  Id., at 622.  While the prosecutorial comment in this case may have been improper, it did not rise to the level of fundamental error.  Even if the prosecutorial comment had been preserved, and this court was to have considered the cumulative effect of the testimony and comment, we find that there is no reasonable probability that the trial’s outcome would have changed given the overwhelming evidence.  The challenged testimony and comment do not warrant reversal.  It is therefore,

          ORDERED AND ADJUDGED that Appellant’s convictions and sentences are hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 2nd day of December 2011.

          Original order entered on December 2, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.

 

 

 

 

 

Copies to:

Lynda Beth Barack, Esq.

Kris Parker, A.S.A.