Commonwealth v. Radoslaw Czerkawski.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-653

COMMONWEALTH

vs.

RADOSLAW CZERKAWSKI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted of twelve counts of animal

cruelty following a jury trial.1 Prior to trial, the defendant

moved for a change of venue due to what he claimed was

substantial pretrial publicity that interfered with his right to

a fair and impartial jury. This motion was denied. The

defendant renewed the motion for a change of venue before a

second judge, and it was denied again.2 After conviction, the

defendant noticed an appeal, which we stayed to allow him to

file a motion for a new trial. That motion was denied, and the

1The defendant was found not guilty on a single count of
misleading police.

2 Neither motion judge was the trial judge.
defendant filed a second notice of appeal. In this consolidated

appeal, the defendant argues that the pretrial publicity was so

substantial as to require a change of venue due to impairment of

the local jury pool. We affirm.

1. Background. a. Facts. Viewing the evidence in the

light most favorable to the Commonwealth, the jury could have

found the following facts. In January 2013, the defendant,

Radoslaw Czerkawski, began working as a caregiver for Janina

Stock, who was ninety-four years old at the time, after having

been hired by her grandchildren. The defendant worked in that

position, living with Stock in her home in Quincy, until Stock

died on the morning of August 31, 2013. In February 2013, while

he was working as Stock's caregiver, the defendant sent a

message to Stock's granddaughter that Stock wanted to get a dog.

The granddaughter remarked that Stock had never allowed her to

have a dog, but there is no evidence in the record that she told

the defendant whether he could get a dog. After Stock's death,

the defendant submitted receipts for reimbursement to Stock's

grandson, one of which was for dog food. The grandson was

surprised by this receipt, as he did not believe anyone in the

house had a dog.

On the morning of August 31, 2013, the day Stock died, an

emaciated dog with extensive injuries and no collar or other

identification was found by two passersby, abandoned down the

2
road from Stock's home. The passersby called the Quincy police

department, and the responding officer called animal control,

which picked up the dog.

Later that morning, the dog was brought from the Quincy

Animal Shelter to the VCA South Shore Animal Hospital. A

veterinarian examined the dog, which was a female white pit bull

with brown spots. The veterinarian found that the dog was very

emaciated, could not bear weight on any of her limbs, and had

the following injuries: swollen joints, an injured eye, burns

on her nose, a lacerated tongue, very long nails, and wounds on

her head. The dog presented as if she were in pain. The

veterinarian concluded that these were inflicted injuries.

After the examination, the dog was euthanized due to the

severity of her injuries.

A necropsy, which is a postmortem examination of an animal,

was performed on the dog by another veterinarian. In addition

to the things found by the first veterinarian, she also found

that the dog had bruising in one lung, a blood clot in her

chest, fractured ribs and spine, swollen and dislocated leg

joints, and a fractured femur. This veterinarian, too,

concluded that the dog's injuries were all inflicted.

At first, the police had no information about the dog

beyond her condition, and they did not know who had abused the

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dog. As described below, there were several news stories about

the discovery of the dog and about her condition.

After seeing one such news story on television, a woman

contacted the Quincy police department because she recognized

the dog as her former dog "Kyia." Kyia was a pit bull mix that

she had given away to a couple who responded to the woman's

Craigslist advertisement in May 2013. In June 2013, the couple

in turn gave Kyia away through a Craigslist advertisement. One

member of the couple gave Kyia to a man who had what he

described as an Albanian or Polish accent. Later, that member

of the couple examined a photographic array and identified the

defendant as the man to whom he had given Kyia with what he

described as 89.9 percent certainty. At the time that the

couple gave Kyia away, she was in good health and did not have

injuries.

The Craigslist advertisement posted by the couple was later

found in the Internet history on the defendant's laptop. His

laptop also showed an Internet search for free pets, and his

browser history showed visits to several animal-related

websites, including Petfinder and the Massachusetts Society for

the Prevention of Cruelty to Animals.

The veterinarian who performed the necropsy on the dog had

extracted a tissue sample and sent it to a genetics laboratory.

Samples taken by the police from red-brown stains found in

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Stock's home were also sent to the laboratory. Finally, a

sample taken from a collar found in the defendant's rental car

was sent to the same laboratory. A forensic analyst at the

genetics laboratory concluded that the deoxyribonucleic acid

(DNA) profile for the tissue sample extracted from the dog's

body matched the DNA profile for some of the samples taken from

Stock's home and the sample taken from the collar.

b. Pretrial publicity. After the dog was discovered, when

nothing about her was known and there were no suspects, there

was substantial media coverage of her suspected abuse, and the

dog was nicknamed "Puppy Doe." Photographs of the dog in life-

like positions taken at the time of the necropsy were circulated

in the media, and the office of the district attorney for the

Norfolk district (district attorney) asked the public for help

in identifying the individual responsible for the abuse of the

dog. During its publicity campaign, the district attorney's

office issued a press release stating, "It is highly unlikely

that this level of sadistic cruelty could be shown to one animal

and not be part of a pattern involving other animals or perhaps

vulnerable people." In September 2013, a vigil for the dog was

held in Quincy, and the district attorney attended and spoke,

making a statement similar to the one in the press release,

which was reported in the media.

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After the defendant's arrest in October 2013, the Facebook

page for the district attorney's office posted updates regarding

the schedule of the court proceedings. Numerous Facebook users

made comments on these posts and on a Facebook page entitled

"Justice for 'Puppy Doe.'" These comments called for the

defendant to be incarcerated, protested the many continuances

before the trial, expressed sympathy for the dog and outrage at

her abuse, and some even called for the defendant to be

deported, tortured, or killed.

Trial took place in March 2018, more than four years after

the dog was found. At the beginning of each day of jury

selection, the judge asked all the jurors as a group if they had

seen or heard anything about the case. Then, at sidebar, the

judge individually asked the jurors who had not already been

excused for some other reason, about what, if anything, they had

seen or heard. At the time of the trial, approximately forty-

five percent of the jury venire reported having seen or heard

something about the case in response to the judge's question

posed at the beginning of jury selection. Of the twelve

deliberating jurors, one-third knew of the case prior to trial.

The four deliberating jurors who had heard of the case were

jurors 38, 42, 63, and 81. Juror 38 had heard of the case and

knew that it was the so-called "Puppy Doe" case, but did not

remember details other than the fact that the dog had died.

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Juror 42 had seen news stories about the case as recently as the

night before trial, which included pictures of the dog and

"speculation about what happened." However, the juror had not

seen or heard anything about the defendant. Juror 63 thought he

had seen something about the "Puppy Doe" case but seemed unsure.

Juror 81 had heard of the case very briefly on the television

news and knew that the dog had been euthanized. Jurors 38, 42,

and 81 all stated that what they had seen or heard about the

case would not impact their ability to be fair and impartial in

the case, and juror 63, while not asked that specific question,

stated that there was nothing he could think of that would

impact his ability to be fair and impartial in the case. The

defendant did not challenge any of these jurors for cause, nor

did he exercise any of his peremptory challenges to strike them,

and he had two peremptory challenges remaining when the jury

were seated.

2. Discussion. The defendant argues that the pretrial

publicity in this case required a change of venue. A motion for

a change of venue may be granted 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." Commonwealth v. Toolan, 460 Mass. 452, 462

(2011), S.C., 490 Mass. 698 (2022), quoting Mass. R. Crim.

P. 37 (b) (1), 378 Mass. 914 (1979). The judge retains

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"substantial discretion" in deciding such a motion, and we

review such decisions for an abuse of discretion. Commonwealth

v. Hoose, 467 Mass. 395, 405 (2014).

The defendant bears the burden of showing either

"presumptive" or "actual" prejudice. Hoose, 467 Mass. at 406.

Where "the entire jury pool is tainted by exposure to pretrial

publicity[,] the venire is considered presumptively prejudiced,

regardless of the details of the voir dire process . . . , and

even if individual members of the jury expressly assert their

belief that they can be 'fair and impartial.'" Toolan, 460

Mass. at 463. "However, presumptive prejudice exists only in

truly extraordinary circumstances." Id.

a. Preserved claim of presumptive prejudice. In this

case, the defendant brought a motion that he later renewed in

advance of trial seeking a change of venue. Since the defendant

filed his motions before voir dire and did not renew it before

the trial judge, he could claim only presumptive prejudice, as

there was no record support for claiming actual prejudice. The

two main factors relevant to a finding of presumptive prejudice

are (1) "the nature of the pretrial publicity, specifically

whether it is both extensive and sensational," and (2) whether

the judge was "able to empanel jurors who appear impartial."

Hoose, 467 Mass. at 406. The latter is the factor of "primary

importance." Id., quoting Toolan, 460 Mass. at 464. Given the

8
timing of the defendant's motions, there was no evidence about

that second factor in the record before the motion judges.

(Showing actual prejudice, of course, requires an examination of

the answers of the jurors at voir dire. See Hoose, supra at

408-409.)

In support of his motion to change venue, the defendant

filed materials purporting to show both the inflammatory nature

of the district attorney's public statements and the broad news

coverage of the case. These included a press release posted to

the Facebook page for the office of the district attorney and

several news articles from shortly after the abused dog was

found in 2013. The press release and articles contained the

district attorney's request for information from the public

regarding the dog's or perpetrator's identity. The request for

assistance in finding the perpetrator cannot be construed as

inflammatory. The articles and press release from 2013,

however, also included the district attorney's speculation that

it was "highly unlikely that this level of sadistic cruelty"

could be limited to just one animal, and that there could have

been other animal, or even human, victims.

The defendant also submitted two stories from shortly after

his arrest. One was a news article that included a photograph

of the dog and factual information about the defendant and his

arrest. Another was a Facebook post by the office of the

9
district attorney sharing video footage of a press conference,

and the post is entitled "No known motive in Puppy Doe abuse

case, probably just 'sick individual.'"

The defendant submitted Facebook posts from the office of

the district attorney communicating case scheduling updates once

the case against the defendant was underway. These updates

included a post with a link to a story entitled "'Puppy Doe'

suspect indicted on larceny charges." Although this was a

factual update concerning the defendant's arraignment, this

story could have alerted potential jurors to the fact that the

defendant was also charged with larceny. For this reason,

though not sensational, this information might have been

prejudicial to those who were exposed to it. That said,

"[a]lthough references to the defendant's past criminal

convictions may not have cast him in the most favorable light,

. . . fact-based publicity, even that which contains references

to charges pending against the defendant, . . . is not the sort

of sensational publicity that would give rise to a presumption

of prejudice." Hoose, 467 Mass. at 407.

In addition to Facebook posts containing factual

information made by the office of the district attorney, there

were many comments made by members of the public on these

Facebook posts. Some of these comments can be construed as

10
sensational, with a few even going as far as to call for

violence against the defendant.

We will assume without deciding that these identified

pieces of publicity were sensational or otherwise prejudicial.

Nonetheless, we conclude that there was no error in the motion

judges' conclusion that the defendant failed in his burden to

show the publicity was "extensive."

Publicity is not extensive if "the nature of the coverage

becomes more factual and the frequency of coverage decreases in

the time period between the crimes and jury empanelment."

Hoose, 467 Mass. at 406. In this case, over four years passed

between the alleged crimes and the trial, and that decrease in

frequency and increase in factuality is precisely what the

record showed. In support of his initial motion for change of

venue, the defendant submitted four articles written about the

animal abuse. Two of the articles were published in September

2013 prior to the defendant's arrest, one was published in

October 2013 shortly after the defendant's arrest, and the

fourth was published in February 2014 after the defendant was

indicted on larceny charges. The defendant also submitted the

office of the district attorney's press release from prior to

his arrest and press conference video footage from after his

arrest, both of which were from October 2013. The defendant

submitted no articles or other news media from any time between

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February 2014 and the time he filed the motion for a change of

venue in June 2017.

In addition to the traditional media publicity, the

defendant also submitted various Facebook posts made by the

office of the district attorney providing updates on the status

of the defendant's case, as well as comments on those posts and

comments on a Facebook page called "Justice for 'Puppy Doe.'"

These posts and comments were made at various times, from

October 2013 through May 2017.3 However, the defendant presented

no evidence that either of the Facebook pages was widely viewed

by members of the community. None of the posts or comments on

Facebook were "liked" by more than thirty-three viewers, or

"shared" by more than forty-eight, which would seem to indicate

a very low level of engagement in a county of 700,000 people.

Even though, subsequent to the defendant's motions for a

change of venue, some jurors stated at voir dire that there had

been press coverage of the trial in the days leading up to it,

our record is devoid of any such material, as the defendant did

3 Some of the Facebook posts and comments are dated with
only a month and day, but without a year. Because these
submissions were attached to the defendant's initial motion for
a change of venue, which was filed in June 2017, we assume that
those posts and comments were from 2016 and the first half of
2017.

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not include it in the appendix.4 As it is the defendant's burden

to show prejudice, the only traditional news media before us was

from more than four years prior to the trial, and the defendant

provided no evidence that the more recent social media content

was widely viewed, we do not conclude that the publicity was

extensive. Thus, we see no abuse of discretion in the two

motion judges' denials of the defendant's motions for change of

venue.

b. Unpreserved claims of prejudice. i. Presumptive

prejudice based on juror responses at voir dire. Before us, the

defendant argues that presumptive prejudice was demonstrated not

only by the evidence put before the motion judges, but by that

evidence combined with what was revealed at voir dire. This

claim was never raised below and so is not preserved. We

therefore may order a new trial on this ground only if we find

both that there was an error and that it created a substantial

risk of a miscarriage of justice. See Commonwealth v. Alphas,

430 Mass. 8, 13 (1999).

4 At the hearing on the renewed motion, the defendant's
counsel asserted that he had submitted "well over I think four
hundred pages of various published media." Before us, the
defendant has submitted only twenty-two pages of published
materials consisting of several newspaper articles, Facebook
postings, and the comments thereto.

13
As described above, the factor of primary importance in the

determination of presumptive prejudice is whether the judge was

"able to empanel jurors who appear impartial." Hoose, 467 Mass.

at 406. Of course, the general rule is that "jurors' assertions

of impartiality should be accepted by the judge." Commonwealth

v. Leahy, 445 Mass. 481, 494 (2005). In determining whether

extraordinary circumstances exist such that pretrial publicity

is so pervasive as to create a presumption of prejudice despite

jurors' assertions of impartiality, courts may consider the size

of the community in which the trial is to take place and the

percentage of the jury venire who have heard about the case.

See id. at 493-494. For example, prejudice was presumed in a

case that took place in a small, rural community and in which

almost ninety percent of the jury venire already had some

opinion as to the defendant's guilt. See id., citing Irvin v.

Dowd, 366 U.S. 717, 725, 727 (1961). In contrast, there was no

finding of presumptive prejudice in a case in which one-third of

the jury venire not only knew of the case but had been excused

at least in part for having actually been prejudiced, see Leahy,

supra at 494, citing Commonwealth v. Clark, 432 Mass. 1, 6

(2000), nor in a case in which forty-two percent of the jury

venire were disqualified because they knew of the defendant, see

Leahy, supra, citing Commonwealth v. Angiulo, 415 Mass. 502,

515-516 (1993).

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Given the size of the community from which the jury panel

was drawn, the number of jurors who had heard of the case, and

the jurors' descriptions of what they had heard, this is not a

case in which the defendant has demonstrated before us that,

consciously or unconsciously, the jurors were mistaken about

their ability to be fair and impartial. See Angiulo, 415 Mass.

at 515-516.

Because the judge thus was able to empanel an impartial

jury, and the publicity was not extensive as described above,

even though approximately forty-five percent of the jury venire

reported having heard of the case, the judge would not have

abused her discretion by finding that there was no presumptive

prejudice. There was thus no error.5

ii. Actual prejudice. We turn to the argument that there

was actual prejudice. Again, this was not raised below, so we

review any error for a substantial risk of a miscarriage of

justice. See Alphas, 430 Mass. at 13. A claim of actual

prejudice is considered in the totality of the circumstances to

determine whether the "pretrial publicity deprived [the

defendant] of his right to a fair and impartial jury." Hoose,

467 Mass. at 408. "A defendant's right to a fair and impartial

5 Consequently, our decision on this question would be the
same even had the claim been preserved.

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jury does not require that jury members have no prior knowledge

of the crime." Commonwealth v. Colon-Cruz, 408 Mass. 533, 551

(1990). To determine whether jurors were actually prejudiced by

publicity, courts have looked to the voir dire procedures used

by the judge. See Toolan, 460 Mass. at 466-467.

In this case, the trial judge employed many safeguards to

ensure that empanelled jurors were not actually prejudiced.

Because the trial was expected to be lengthy, the judge gave

each party eight peremptory challenges rather than the required

four, see Mass. R. Crim. P. 20 (c) (1), 378 Mass. 890 (1979),

and empanelled sixteen jurors instead of twelve. The judge

asked the jury venire statutory questions as a group, the jurors

filled out a supplemental questionnaire, and they were then

questioned individually at sidebar. During the individual voir

dire, the judge asked many of the jurors, including all the

jurors who were eventually seated, if they had ever seen or

heard of the "Puppy Doe" case and, if so, what they had seen or

heard and if it would affect their ability to be fair or

impartial.6 The attorneys for each party were also permitted to

6 The defendant argues that this line of questioning was
prejudicial because there had been a motion in limine to exclude
the term "Puppy Doe" from the trial. However, counsel for
defendant agreed at a pretrial hearing with the judge that the
phrase should be used, but only at sidebar in jury selection
where relevant with respect to pretrial publicity. And, at voir
dire, the judge avoided use of the term "Puppy Doe" to jurors
who already indicated that they had heard about the case until

16
ask questions of the individual jurors. Finally, on both days

of jury selection, after all of the jurors from that day were

individually questioned, the remaining jurors whom the judge had

found indifferent were questioned as a group by the attorneys

for both sides. These safeguards allowed the judge to excuse

for cause any juror she did not determine to stand indifferent,

which helped to ensure that only jurors who could decide the

case impartially were ultimately empanelled. As described

above, after all of this examination, only one-third of the

jurors who ultimately deliberated had heard about the case prior

to the trial.

While the judge, on her own initiative, excused many jurors

for cause over the course of individual voir dire, the defense

counsel challenged only one juror for cause (unrelated to the

pretrial publicity). The judge then excused the juror for

cause. The defendant did not use all his peremptory challenges,

using only six of the eight allotted.7 The lack of for-cause

defense counsel requested that the judge specifically ask such
jurors whether they had heard anything about "Puppy Doe."

7 The peremptory challenges were exercised at the end of
each of the two days of empanelment. At the end of the first
day, the judge expressed her openness to a party's renewing a
challenge for a juror or requesting additional challenges if
necessary. As such, there appears to have been no need for the
defendant to avoid using peremptory challenges in order to save
them for possible future use.

17
challenges by the defendant due to a juror's knowledge of or

bias about the case coupled with the defendant's failure to use

all peremptory challenges, indicated that he did not think, at

the time of empanelment, that the jurors were impermissibly

prejudiced by the pretrial publicity. See Commonwealth v.

Morales, 440 Mass. 536, 543 (2003) ("failure to exhaust . . .

peremptory challenges . . . belies any claim of juror

partiality"). Consequently, we think the trial judge could

properly have found no actual prejudice (if this issue were

raised before her), and therefore we see no error.8

3. Conclusion. We do not find that the motion judges

abused their discretion in denying the defendant's motion or his

renewed motion for a change of venue, nor that the trial judge

8 The defendant's appeal from the order denying his motion
for a new trial also is before us in this consolidated appeal,
but as he pursues no argument on this subject, we affirm the
order without further discussion.

18
was required to order a change of venue sua sponte.

Judgments affirmed.

Order denying motion for new
trial affirmed.

By the Court (Rubin, Singh &
Hershfang, JJ.9),

Clerk

Entered: September 23, 2024.

9 The panelists are listed in order of seniority.

19