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SJC-12209
COMMONWEALTH vs. WALTER SHELLEY.
Middlesex. February 7, 2017. - August 24, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ.1
Homicide. Practice, Criminal, Capital case, Instructions to
jury, Lesser included offense. Limitations, Statute of.
Indictments found and returned in the Superior Court
Department on May 26, 2011.
The cases were tried before Janet Kenton-Walker, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Robert L. Sheketoff for the defendant.
Laura Kirshenbaum, Assistant District Attorney, for the
Commonwealth.
LOWY, J. We now address whether a defendant charged with
murder is entitled to an instruction on the lesser included
offense of manslaughter, even when the statute of limitations
1
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
for manslaughter has lapsed. We conclude that, under
Massachusetts law, a defendant is not entitled to a lesser
included offense instruction when the defendant cannot be
convicted of the offense due to the statute of limitations. A
defendant may, however, elect to waive the statute of
limitations and invoke his or her right to the lesser included
offense instruction. The trial judge correctly presented this
choice to the defendant, who declined to waive the statute of
limitations. We affirm the defendant's convictions.
Background. On September 13, 2013, a Middlesex County jury
found Walter Shelley, the defendant, guilty of murder in the
first degree, as a participant in a joint venture.2 On the
defendant's motion, the trial judge reduced the murder
conviction to murder in the second degree pursuant to Mass. R.
Crim. P. 25 (b) (2), 379 Mass. 886 (1979). The charges stemmed
from his involvement, along with two friends, in the 1969 death
of fifteen year old John McCabe, the victim.
An indictment for murder was not returned against the
defendant until after the investigation into the crime
recommenced around 2007. Subsequently, the defendant and his
2
The defendant was also convicted of misleading a police
officer, in violation of G. L. c. 268, § 13B.
3
friends were all charged with murder.3 Although there is no
statute of limitations for murder, there is a six-year statute
of limitations for manslaughter. G. L. c. 277, § 63. There is
no dispute that the defendant would have been entitled to a
manslaughter instruction had the limitations period not run.
Accordingly, we only briefly summarize the facts.
In 1969, the then seventeen year old defendant was upset
with the victim for flirting with the defendant's girl friend.
The defendant, along with his two friends, drove to confront the
victim. One friend forced the victim into the vehicle. The
victim asked to be let out. The defendant instead drove to a
large vacant area off of a dirt road in Lowell.
On arriving, they pulled the victim out of the vehicle and
a brief altercation ensued. With the victim lying face down on
the ground, one friend tied the victim's ankles and wrists with
rope. The friend tied another piece of rope around the victim's
neck, which he then tied to the rope binding the victim's
ankles. The victim's eyes and mouth were taped shut. The
defendant and his friends drove away, leaving the victim behind.
The trio returned approximately forty-five minutes later to
discover that the victim was not breathing. The defendant and
3
One of the friends was tried separately and acquitted, and
the other reached a cooperation agreement with the Commonwealth
and testified.
4
his friends again drove away. Police discovered the victim's
body the next day.
Discussion. During his trial, the defendant requested that
the judge instruct the jury on the lesser included offense of
involuntary manslaughter. Generally, a defendant is entitled to
an instruction on a lesser included offense of the charged
crime, when the facts could support the lesser offense. See
Beck v. Alabama, 447 U.S. 625, 638 (1980); Commonwealth v.
Woodward, 427 Mass. 659, 662-663 (1998). Allowing a jury to
convict a defendant of a lesser included offense gives the jury
a third option, beyond acquittal or conviction, that "ensures
that the jury will accord the defendant the full benefit of the
reasonable-doubt standard." Beck, supra at 633-634, citing
Keeble v. United States, 412 U.S. 205, 208 (1973). This rule
mitigates concern that a jury would return a guilty verdict for
the greater crime, even if they believe the prosecution has not
proved each element, because the jury believe that the
defendant's conduct warrants some form of punishment. In some
cases, the prosecution may request the lesser included offense
instruction to increase its likelihood of obtaining some
conviction for a defendant's criminal conduct. See Woodward,
supra.
The defendant's request for a lesser included offense
instruction in this case, however, presents a complication that
5
this court has not addressed: how should a trial judge treat a
request for a lesser included offense instruction when a
conviction of that lesser included offense is barred by the
applicable statute of limitations?
The trial judge applied a rule articulated in Spaziano v.
Florida, 468 U.S. 447 (1984), overruled on other grounds by
Hurst v. Florida, 136 S. Ct. 616, 623-624 (2016). The United
States Supreme Court in Spaziano allowed a defendant to obtain
an instruction on a lesser included offense that is time barred
only if the defendant waives the statute of limitations defense.
Spaziano, supra at 455-456. The judge declined to adopt two
ostensibly more protective rules from other jurisdictions, as
proposed by the defendant. The defendant declined to waive his
statute of limitations defense, and the judge did not instruct
the jury on manslaughter.
On appeal, the defendant argues that we should adopt one of
the more protective alternative rules as a matter of State
constitutional law, and the Commonwealth argues that we should
apply the Spaziano rule. We decline to adopt the alternative
rules suggested by the defendant. We conclude that due process
in Massachusetts does not require more than the Federal rule
articulated in Spaziano.
1. The three rules. In the Federal and State courts,
three distinct rules have developed. First, as a matter of
6
Federal due process, as articulated in Spaziano, a defendant's
entitlement to the lesser included offense instruction is
contingent on his or her waiver of the statute of limitations
defense. Spaziano, 468 U.S. at 455-456. A majority of States
that have considered the issue have adopted the rule from
Spaziano. See People v. Burns, 250 Mich. App. 436, 442-443
(2002), and cases cited. Second, in State v. Short, 131 N.J.
47, 62-63 (1993), the New Jersey Supreme Court held that the
defendant is entitled to the lesser included offense
instruction, without telling the jury that finding the defendant
guilty of that offense would result in acquittal. See State v.
Muentner, 138 Wis. 2d 374, 391-393 (1987) (same). Finally, in
State v. Delisle, 162 Vt. 293, 305 (1994), the Vermont Supreme
Court adopted a rule that upholds the defendant's entitlement to
the lesser included offense instruction, but also requires
instructing the jury that finding the defendant guilty of the
time-barred offense would result in acquittal. We first set out
the Spaziano rule. Then, we address the two rules suggested by
the defendant, and we explain why we decline to adopt each.
a. The Spaziano rule. In Spaziano, 468 U.S. at 455-456,
the United States Supreme Court concluded that a defendant's
entitlement to a lesser included offense instruction, pursuant
to Beck, did not extend to circumstances in which the statute of
limitations for that lesser offense had lapsed. The Court
7
reached this conclusion because Beck did not espouse a rule that
"a lesser included offense instruction in the abstract" is
required for a trial to be fair. Spaziano, supra at 455.
Rather, entitlement to an instruction based on Beck exists only
where "the evidence would permit a jury rationally to find [a
defendant] guilty of the lesser offense and acquit [that
defendant] of the greater." Beck, 447 U.S. at 635, quoting
Keeble, 412 U.S. at 208. Thus, the purpose of the rule in Beck
is to enhance the rationality of the jury's decision. Spaziano,
supra. But, "[w]here no lesser included offense exists, a
lesser included offense instruction detracts from, rather than
enhances, the rationality of the process." Id.
For reasons discussed infra, among the three rules adopted
by various jurisdictions, the Spaziano rule strikes the best
balance between protecting the "rationality of the process" and
a defendant's due process rights. When a defendant charged with
murder cannot be convicted of manslaughter because of the
statute of limitations, a jury cannot "rationally . . . find
[the defendant] guilty of the lesser offense." See Beck, 447
U.S. at 635, quoting Keeble, 412 U.S. at 208. In such
circumstances, the rationale from Beck does not apply. See
Spaziano, 468 U.S. at 455-456. Similarly, due process as a
matter of State constitutional law does not require a judge to
deceive the jury by instructing them on a lesser included
8
offense for which the defendant cannot be found guilty. See
Delisle, 162 Vt. at 304 ("allowing a jury to find a defendant
guilty of a crime for which the defendant cannot be punished,
even if the jury [have] no say in what the punishment will be,
makes a mockery of the trial"). If, however, the defendant
elects to waive the statute of limitations as a defense, then
the defendant may be convicted of the lesser offense and, as
such, he or she would be entitled to the lesser included offense
instruction.4 See Spaziano, supra at 455-456; Woodward, 427
Mass. at 662-663.
b. The Short rule. In New Jersey, a trial judge must give
the jury an instruction on a time-barred, lesser included
offense. Short, 131 N.J. at 62-63. However, the trial judge
may not inform the jury that a conviction of that offense would
be dismissed, due to the statute of limitations. Id. The New
Jersey Supreme Court concluded that this rule does not
objectionably deceive the jury because jurors are precluded from
"consider[ing] factors that may improperly [skew] their
determinations of criminal guilt or innocence." Id. at 60. The
4
Contrary to the dissent's concerns, that Spaziano, 468
U.S. at 449, and Beck, 447 U.S. at 637-638, were death penalty
cases only strengthens the basis for our resolution of this
case. If due process in death penalty cases does not require
allowing a defendant to obtain the benefit of both his or her
right to a lesser included offense instruction and the statute
of limitations defense, due process does not require that result
in nondeath penalty cases.
9
court reasoned that the jury's job is "to express an ultimate
judgment of culpability" (quotation omitted). Id. Although
this rule is maximally protective of the defendant's rights,
allowing the jury to believe incorrectly that they are rendering
a valid conviction directly undermines the jury's role in
expressing a judgment of the defendant's culpability. See
Spaziano, 468 U.S. at 456 ("Beck does not require that the jury
be tricked into believing that [they have] a choice of crimes
for which to find the defendant guilty, if in reality there is
no choice").
Additionally, this deception may have the deleterious
effect of undermining jurors' faith in the court system. See
Spaziano, 468 U.S. at 456; Delisle, 162 Vt. at 302-303.
Although, as the defendant points out, in certain contexts we
keep evidence from the jury, this does not deceive the jury into
falsely believing that they have convicted a defendant of a
crime. Evidence is kept from a jury due to a constitutional
principle; to further some compelling point of public policy;
or, in many circumstances, because of concerns regarding the
evidence's reliability. See, e.g., Crawford v. Washington, 541
U.S. 36, 68-69 (2004) (testimony that violated defendant's right
to confront witnesses should have been excluded); Martel v.
Massachusetts Bay Transp. Auth., 403 Mass. 1, 4 (1988)
(subsequent remedial measures excluded for "public policy
10
unrelated to the fact-finding process, that 'a contrary rule
would discourage owners from making repairs to dangerous
property'" [citation omitted]); Commonwealth v. Helfant, 398
Mass. 214, 224 (1986) (propensity evidence excluded because it
can be "highly prejudicial"). Ensuring the fairness of a
defendant's trial does not require deceiving the jury.5 See
Spaziano, supra; Delisle, supra.
c. The Delisle rule. Vermont has adopted a rule similar
to the Short rule, but different in one critical respect. Like
in Short, a defendant is entitled to the lesser included offense
instruction without waiving his or her statute of limitations
defense. Delisle, 162 Vt. at 304-305. If the defendant asserts
the statute of limitations defense, however, the defendant may
"obtain[] an instruction informing the jurors that, because the
passage of time precludes prosecution for the lesser offense,
they must acquit the defendant if they conclude that the
evidence would support a conviction of the lesser crime only."
Id. at 305.
5
Nor do we interpret G. L. c. 278, § 12, to require
allowing the defendant to benefit from both the lesser included
offense instruction and the statute of limitations instruction.
See post at . In the event a defendant is acquitted of part
of the indictment, § 12 merely permits a defendant to be
"adjudged guilty" of a crime, "if any," that is "substantially
charged" by the "residue" of the indictment. If a lesser
included offense is time barred, the defendant cannot be
adjudged guilty of that crime, and, as we conclude supra, a
defendant's entitlement to a lesser included offense instruction
extends only to those of which he or she can be convicted.
11
Although this rule is intended to afford greater protection
of the defendant's rights than did Spaziano, it does not.
Rather, the jury face the same all-or-nothing proposition that
exists in the absence of the lesser included offense
instruction, except now the jury have been instructed that such
conduct constitutes a crime for which the defendant will not be
punished. In these circumstances, the jury no longer simply
believe that the defendant may be "guilty of some offense"
(emphasis in original). Beck, 447 U.S. at 634, quoting Keeble,
412 U.S. at 212-213. Instead, the jury have determined that the
defendant is guilty of criminal conduct, and they know that if
they return a guilty verdict for that conduct, the defendant
will escape punishment due solely to the statute of limitations.
We agree with the New Jersey Supreme Court that "telling the
jury that [a] defendant would go free if convicted of
manslaughter . . . all but invite[s] the jury to disregard the
manslaughter instruction." Short, 131 N.J. at 58.6
Conclusion. The trial judge correctly applied Spaziano and
allowed the defendant to choose between asserting the statute of
limitations defense or his right to a manslaughter instruction.
Judgments affirmed.
6
In cases in which the statute of limitations is contested,
its applicability should be posed to the jury as a special
question, prior to the remainder of the jury charge.
BUDD, J. (dissenting, with whom Lenk and Hines, JJ., join).
Hewing closely to the ruling in Spaziano v. Florida, 468 U.S.
447 (1984), the court concludes that where a defendant seeks an
instruction on a time-barred lesser included offense, the
defendant must first waive the statute of limitations. Because
I believe that under Massachusetts law a defendant cannot be
forced to choose between having a jury consider an applicable
lesser included offense and asserting a viable defense, I
respectfully dissent.
1. Statutory protections. This case concerns the
intersection of two important statutory protections afforded to
criminal defendants: the statute of limitations and the right
to have a jury consider lesser included offenses.
a. Statute of limitations. A defendant's right to present
a defense against the government's accusations is rooted in the
Sixth Amendment to the United States Constitution, art. 12 of
the Massachusetts Declaration of Rights, and G. L. c. 263, § 5.
The right entitles a defendant to introduce evidence in his or
her own defense and to advance alternative theories of the case
based on all the evidence presented. Where such theories and
evidence permit an inference that rises to the level of an
affirmative defense, the burden shifts to the Commonwealth to
disprove the affirmative defense beyond a reasonable doubt. See
Commonwealth v. Shanley, 455 Mass. 752, 780-781 & n.37 (2010).
2
The statute of limitations is such an affirmative defense. See
id. at 780.
In Massachusetts, the Legislature has set time limits on
the prosecution of all criminal offenses except murder and
certain types of sexual assault; the time limit for manslaughter
is six years. See G. L. c. 277, § 63. Statutes of limitations
in criminal cases are common generally. See, e.g., 18 U.S.C.
§§ 3281, 3282; Colo. Rev. Stat. § 16-5-401; Kan. Stat. Ann.
§ 21-5107; Ohio Rev. Code Ann. § 29-2901.13. Statutes of
limitations represent a policy choice by legislatures to let
some individuals who commit crimes go unpunished where the
government fails to prosecute within a specified period of time.
See Model Penal Code § 1.06 comment, at 86 (Official Draft and
Revised Comments 1985). In enacting a statute of limitations, a
legislature recognizes that the deterioration of evidence over
time, the value of finality to a community, and the possibility
that a criminal may redeem himself or herself mean that, at some
point, punishment of the wrongdoer is no longer desirable. See
id.
Although we have held that a defendant may be deemed to
have waived the statute of limitations by failing to raise it at
or before trial, see Commonwealth v. Dixon, 458 Mass. 446, 455-
456 & n.21 (2010), we nevertheless have looked carefully at the
implications of such a waiver. See, e.g., Commonwealth v.
3
Barrett, 418 Mass. 788, 792-793 (1994) (dismissing some
indictments and vacating others because defendant's waiver of
statute of limitations defense was due to ineffective assistance
of counsel). In any event, an inadvertent waiver, or a
voluntary waiver of the statute of limitations as a part of a
plea agreement, is quite different from requiring waiver of the
defense in order to secure an instruction on a lesser included
offense, as the latter infringes on the defendant's vested right
no longer to be punished for a particular offense.
b. Lesser included offenses. In Massachusetts, the power
of a jury to find that a defendant has committed a lesser
included offense is expressly provided for by statute:
"If a person indicted for a felony is acquitted
by the verdict of part of the crime charged, and is
convicted of the residue, such verdict may be received
and recorded by the court, and thereupon the defendant
shall be adjudged guilty of the crime, if any, which
appears to the court to be substantially charged by
the residue of the indictment, and shall be sentenced
and punished accordingly."
G. L. c. 278, § 12. This statute gives juries the opportunity
to determine, as precisely as possible, what the prosecution
has, and has not, proved beyond a reasonable doubt.1 Further, by
1
In Massachusetts, the concept of a lesser included offense
is framed in terms of a power (and duty) of a jury as an aspect
of a fair trial. It stems from the English common law, was
codified by the Massachusetts Legislature shortly following the
enactment of the Constitution of 1780, and has changed very
4
distinguishing between a conviction by the jury and an
adjudication by the judge, the statute provides that the jury's
factual findings set the basis for the judge to figure out the
appropriate judgment and sentence for the defendant. In fact,
the words "if any" foresee that there may be some convictions
found by a jury that do not result in entry of a judgment of
guilt -- such as, for example, where the statute of limitations
provides that, although manslaughter is a crime, it is no longer
punishable by law.2 Cf. State v. Muentner, 138 Wis. 2d 374, 384
little since. See St. 1784, c. 66, § 11; Commonwealth v.
Gosselin, 365 Mass. 116, 118-119 (1974).
Because Massachusetts treats lesser included offenses as an
inherent part of a jury's consideration of guilt, rather than
purely as a procedural request that parties may make at trial,
the ability of a jury to consider lesser included offenses is a
much more fundamental aspect of a jury trial under our
Constitution. See Opinion of the Justices, 126 Mass. 557, 594-
595 (1878) (practical exposition of Constitution by
administrative and legislative branches, "especially if nearly
contemporaneous with the establishment of the Constitution, and
followed and acquiesced in for a long period of years
afterwards, is never to be lightly disregarded, and is often
conclusive"). Accord Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 420 (1821) (using Judiciary Act of 1789 as contemporaneous
exposition of Constitution and thus as tool of constitutional
construction).
2
The court states: "If a lesser included offense is time
barred, the defendant cannot be adjudged guilty of that crime,
and, as we conclude supra, a defendant's entitlement to a lesser
included offense instruction extends only to those of which he
or she can be convicted." Ante at note 5. This holding,
however, renders meaningless the provision in § 12 that provides
that a jury's verdict on the "residue" (a lesser included
offense) may not be translated into a judgment of guilt. In
addition, taken literally, this holding would preclude
5
(1987) ("although the jury may return a verdict convicting the
defendant of the misdemeanor offenses, when submitted, the court
is precluded from entering a judgment of conviction" due to
statute of limitations).
As the court notes, our jurisprudence holds that either the
Commonwealth or the defendant may request a lesser included
offense instruction where "the evidence would permit a jury
rationally to find [a defendant] guilty of the lesser offense
and acquit [that defendant] of the greater." Ante at ,
quoting Beck v. Alabama, 447 U.S. 625, 635 (1980). Accord
Commonwealth v. Woodward, 427 Mass. 659, 662-664 (1998). In
determining whether a jury could rationally find a defendant
guilty of a lesser included offense, our courts have
historically considered only whether there was sufficient
evidence for a jury to find every element of the lesser included
offense; we have ignored objections based on the credibility of
the evidence or on any other ground.3 See Commonwealth v.
postverdict rulings by the judge, including those on renewed
motions for a required finding of not guilty.
3
The court changes this traditional approach by creating an
exception for cases where the statute of limitations has run on
the lesser included offense. The court then concludes that,
where the statute of limitations is in dispute, the defendant is
not entitled to have the jury simultaneously instructed on both
defenses; instead, a special question regarding the statute of
must be given to the jury prior to the bulk of the instructions.
See ante at note 6. This is not the rule in the Commonwealth,
as instructions on affirmative defenses are usually given
6
Spinucci, 472 Mass. 872, 876-877 (2015); Woodward, supra at 663-
664; Commonwealth v. Roby, 12 Pick. 496, 506-508 (1832).
Although it can be a distinct advantage to the prosecution,4 the
instruction is also an important protection for the defendant,
as "it affords the jury a less drastic alternative than the
choice between conviction of the offense charged and acquittal."
Beck, supra at 633. See Woodward, supra at 662 n.6, 664-665.
2. Application of the statutes. Together, the limitations
statute, G. L. c. 277, § 63, and the lesser included offense
statute, G. L. c. 278, § 12, require that a jury be instructed
on any applicable lesser included offenses if a defendant so
requests, and that the defendant be able to assert a statute of
limitations defense if applicable.
alongside the rest of the jury instructions. See, e.g.,
Commonwealth v. White, 475 Mass. 724, 732-734 (2016) (statute of
limitations instruction was given toward end of full jury
charge); Model Jury Instructions on Homicide 18 (2013)
(instruction on affirmative defense of self-defense "may be
given . . . prior to the murder instruction or inserted within
the murder instruction"). See also Commonwealth v. Shanley, 455
Mass. 752, 780-781 (2010) ("We have repeatedly referred to the
statute of limitations defense as an affirmative defense
. . ."). The court fails to explain this change in our
jurisprudence, or why the statute of limitations should differ
from any other disputed affirmative defense.
4
"If the [Commonwealth fails] to produce sufficient
evidence to prove the crime charged, it might still persuade the
jury that the defendant was guilty of something." Spaziano v.
Florida, 468 U.S. 447, 456 (1984), citing Beck v. Alabama, 447
U.S. 625, 633 (1980). See Commonwealth v. Woodward, 427 Mass.
659, 664-665 (1998).
7
The language of a statute is to be interpreted in
accordance with its plain meaning, and if the "language is clear
and unambiguous, it is conclusive as to the intent of the
Legislature." Commissioner of Correction v. Superior Court
Dep't of the Trial Court, 446 Mass. 123, 124 (2006), citing
Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the
Dist. Court Dep't, 439 Mass. 352, 355-356 (2003). Further,
"[c]riminal statutes are to be construed strictly against the
Commonwealth and in favor of the defendant," and we interpret
"[c]riminal limitation statutes . . . in favor of repose."
Commonwealth v. McLaughlin, 431 Mass. 241, 250 (2000). Nothing
in the language of either the statute of limitations or the
statute governing lesser included offenses indicates that one
statute should give way to the other simply because both happen
to apply. In my view, there is no ambiguity in either statute,
and both should be applied as written. Because the defendant
has demonstrated that both statutes apply, he is entitled to
both the lesser included offense instruction and the statute of
limitations defense.5
5
This accords with the approach taken by courts in New
Jersey, see ante at , and Wisconsin. See State v. Short, 131
N.J. 47, 56-58 (1993); State v. Muentner, 138 Wis. 2d 374, 392-
393 (1987).
In Short, 131 N.J. at 54-55, the New Jersey Supreme Court
reasoned that the statute of limitations created a vested right
in the defendant that could not be withdrawn by the courts
8
3. The role of the jury. Given the role that
Massachusetts juries play in our criminal justice system, the
defendant's assertion of a statute of limitations defense must
not be part of the jury's deliberations. In the Commonwealth,
we have separated the duties of the jury from those of the
judge. The jury's role is to find facts and ensure that a
defendant is not punished unless the Commonwealth has presented
proof of an offense beyond a reasonable doubt. When jurors are
instructed on lesser included offenses, they are asked to
consider what the Commonwealth has proved beyond a reasonable
doubt, and what it has not. In reaching a verdict, jurors may
not consider the legal consequences of that verdict, including
what, if any, punishment a defendant may receive.6 See
Commonwealth v. Smith, 387 Mass. 900, 911 (1983), quoting
Commonwealth v. Burke, 373 Mass. 569, 576 n.3 (1977); E.B.
without an express exception in the statute or commentary. The
court also concluded that "the right to have the jury consider
lesser included offenses implicates 'the very core of the
guarantee of a fair trial'" (citation omitted). Id. at 53. As
a result, the New Jersey Supreme Court held that the defendant
was entitled both to a jury instruction on manslaughter and to
raise the statute of limitations following the verdict. Id. at
60, citing Muentner, supra ("A defendant's right to a fair trial
cannot be conditioned on his or her giving up a vested right to
a statute of limitations defense, and a defendant's vested right
to a statute of limitations cannot be conditioned on his or her
giving up the right to a fair trial").
6
In contrast, in some States, like Florida, by statute, the
jury must be instructed on the penalty for the offense for which
the accused is being charged. See Fla. Stat. § 918.10(1).
9
Cypher, Criminal Practice and Procedure § 36:53 (4th ed. 2014).
Trial judges purposely do not tell jurors what the result of
their work will be, and for good reason: we ask juries to focus
on the facts specifically to avoid "result-oriented verdicts and
possible deviation from the basic issues of a defendant's guilt
or innocence."7 Commonwealth v. A Juvenile, 396 Mass. 108, 112
(1985), citing Commonwealth v. Smallwood, 379 Mass. 878, 882
(1980). Only after a jury find the facts by way of a verdict
does the judge attach legal significance to those facts with a
judgment or sentence. Thus, where, as here, the statute of
limitations is not a fact in dispute, it is not a question of
fact to be determined by the jury. The actual operation of that
statute does not involve the jury's role as fact finder and
should not play any role in the jury's deliberations.
The court expresses concern that giving a defendant the
opportunity to assert a statute of limitations defense in
connection with a lesser included defense, without informing the
jury that the defendant may not be punished due to the fact that
the limitations period has run, tricks the jury and would
thereby undermine their faith in the court system. Ante at ,
citing Spaziano, 468 U.S. at 456. I acknowledge this concern;
7
See, e.g., Model Jury Instructions on Homicide 11 ("[Y]our
decision should be based solely on the evidence and the law of
this case, without regard to the possible consequences of the
verdicts. You may not consider sentencing or punishment in
reaching your verdicts").
10
however, the same could be said any time a judge allows a motion
for a required finding of not guilty after the verdict -- in
each situation, the jury play their role and the judge, hers.8
Further, G. L. c. 278, § 12, appears to have foreseen precisely
such a result, as it provides that once a defendant is
"convicted of the residue" of a charged crime, the court shall
"adjudge[]" the defendant "guilty of the crime, if any, which
appears to the court to be substantially charged by the residue"
(emphasis added). Thus, the Legislature has expressly provided
that in some cases, even where the jury have found the defendant
guilty, he or she will not be adjudged guilty or punished for a
crime. This is at least facially similar to other situations in
which jurors may be surprised, and even dismayed, to learn that
a defendant faces a longer period of incarceration than they
might have expected or, if they could have chosen, than they
would have imposed. Moreover, as the court points out, courts
keep information from juries all the time due to the operation
of our constitutional, statutory, and common law. The situation
before us is no different from the examples provided by the
court: the goal in each instance is to ensure that the jury
8
It is also worth noting that, if Massachusetts, like
Florida, informed the jury of the sentencing consequences of a
guilty verdict (see note 6, supra), then dismissed the case due
to the statute of limitations, that truly would be tricking the
jury.
11
base their findings solely on lawfully obtained evidence that is
relevant to the question of guilt.9
Because this situation is not substantially different from
others where the jury are "kept in the dark," at bottom, the
concern appears to be that, where a defendant is convicted but
cannot be punished due to the statute of limitations, the jury
will feel that a defendant who committed a crime unfairly goes
without punishment.10 Given that the purpose of the statute is
to bar prosecutions past a certain time period, such an outcome
is clearly a possibility contemplated by the Legislature for any
criminal act where the statute has run. Had the Legislature
9
It bears noting that information withheld from the jury or
suppressed evidence is often evidence that bears directly on a
defendant's guilt or innocence. Here, information regarding the
operation of the statute of limitations has nothing at all to do
with the defendant's culpability and would serve no other
purpose than to invite the jury to return a "result-oriented"
verdict. For that reason I do not subscribe to the approach,
outlined in State v. Delisle, 162 Vt. 293, 304-305 (1994), in
which the judge not only instructs the jury on the lesser
included offense but also informs them that the statute of
limitations will bar any punishment for that offense.
10
This sentiment is not limited to juries. Following the
verdicts in this case, the judge reduced the degree of guilt
with respect to the murder conviction to murder in the second
degree. The judge declined to consider reducing the defendant's
degree of guilt to manslaughter, reasoning that even if the
weight of the evidence were consistent with that degree of
guilt, reduction to manslaughter would not be consonant with
justice because the statute of limitations would preclude
punishment for the crime. This view misapprehends the statute
of limitations and overlooks its purpose. If a defendant's acts
would constitute manslaughter, but the statute of limitations
has run, then the Legislature has expressly prohibited
punishment for that crime in those circumstances.
12
wanted to, it could have specified exceptions in either the
limitations statute or the lesser included offense statute to
avoid such an outcome.11 See McLaughlin, 431 Mass. at 250 ("The
appropriate statute of limitations is a matter for the
Legislature").
In any case, a juror's potential disappointment with how a
case might turn out is hardly a reason to read into our statutes
provisions that simply are not there, see Boulter-Hedley v.
Boulter, 429 Mass. 808, 811 (1999), or to upend our long
tradition of how we treat a jury verdict in a criminal trial.
See note 1, supra.
4. The court's approach. The court's approach allows the
choice of applying either the statute of limitations or the
statute governing lesser included offenses when, as outlined
above, both should apply.
11
For example, the Legislature could have chosen to take
the approach taken by Maine and Utah, where the statute of
limitations is not a bar to an instruction (and punishment) for
a lesser included offense so long as the statute of limitations
has not run on the greater offense with which the defendant was
charged. See Me. Rev. Stat. tit. 17-A, § 8(7) (on condition
that "there is evidence which would sustain a conviction for the
crime charged"); Utah Code Ann. § 76-1-305. Alternatively, the
Legislature could have removed entirely the statute of
limitations for manslaughter. See, e.g., Short, 131 N.J. at 57
(discussing New Jersey Legislature's decision to remove all time
bars for manslaughter by amending N.J. Stat. Ann. § 2C:1-6).
13
Citing the United States Supreme Court's decision in the
Spaziano case,12 the court here concludes that "[w]here no lesser
included offense exists [i.e., because the defendant cannot be
punished for the lesser included offense due to the statute of
limitations, the] lesser included offense instruction detracts
from, rather than enhances, the rationality of the process."
Ante at , quoting Spaziano, 468 U.S. at 455. I disagree.
In my view, the court relies too heavily on Spaziano, a
Florida case involving the death penalty, in determining a
defendant's rights in Massachusetts. The United States Supreme
Court's decisions in both the Beck and Spaziano cases could be
read to require a lesser included offense instruction only where
the defendant faces the death penalty. See Adlestein, Conflict
of the Criminal Statute of Limitations with Lesser Offenses at
Trial, 37 Wm. & Mary L. Rev. 199, 229 (1995) ("After Beck,
12
Spaziano, 468 U.S. 447, has been overturned in part by
Hurst v. Florida, 136 S. Ct. 616, 623-624 (2016). In Spaziano,
supra at 457-467, the United States Supreme Court concluded that
Florida's capital sentencing scheme was constitutional even
where some of the aggravating factors resulting in the death
penalty were found by a judge rather than a jury. The Court
overruled that part of the decision in Hurst, reasoning that the
jury's opinion could not be advisory in a capital trial. Even
though the Court did not overturn the portion of Spaziano
concerning lesser included instructions, Hurst represents a
shift in perspective regarding the role of the jury. See Hurst,
supra at 624 ("Time and subsequent cases have washed away the
logic of Spaziano").
14
Spaziano, and Schad,[13] the Constitution would thus appear to
require a state court to provide a lesser offense option to the
charged offense only if the charged offense is punishable by
death . . ."). Thus, for States that do not have the death
penalty, Spaziano arguably would not require a court to give a
lesser included offense instruction at all as a matter of
Federal constitutional law. Moreover, the Supreme Court has
stated that so long as any lesser included offense instruction
with support in the evidence is given, Federal due process is
satisfied. See Schad v. Arizona, 501 U.S. 624, 645-648 (1991).14
13
In Schad v. Arizona, 501 U.S. 624 (1991), the United
States Supreme Court held that due process was satisfied where a
jury considering an indictment for capital felony-murder was
also instructed on murder in the second degree. Id. at 646-648.
The Court reasoned that Beck provided for a lesser included
offense only to avoid "an all-or-nothing choice between capital
murder and innocence." Id. at 646-647, quoting Spaziano, 468
U.S. at 455. Thus, because the jury were instructed on second-
degree murder, the defendant was not constitutionally entitled
to an instruction on the lesser included offense of robbery.
Id. at 645-648.
14
In response, the court states that the United States
Supreme Court's opinions in Spaziano and Beck only support its
position that "due process does not require [a lesser included
offense instruction] in non-death-penalty cases" where the
statute of limitations has passed. Ante at note 4. See ante
at ("We conclude that due process in Massachusetts does not
require more than the Federal rule articulated in Spaziano").
This misses the point. The important note here is that
Massachusetts already provides a more protective standard than
the Federal rule, as we give defendants the right to a lesser
included offense instruction even though they do not face the
death penalty. Moreover, unlike the Federal rule, Massachusetts
generally entitles both the defendant and the Commonwealth to
request all of the lesser included offense instructions that
15
In Massachusetts, however, as discussed previously, a defendant
is entitled by statute and common law to have a jury consider
lesser included offenses, regardless of whether the offense is
time barred.
5. Conclusion. The court reasons that requiring the
defendant to choose between the statute of limitations defense
and having the jury receive a lesser included offense
instruction "strikes the best balance between protecting the
'rationality of the process' and a defendant's due process
rights." Ante at . I believe, instead, that forcing a
defendant to make a choice between the application of one
statute or the other, when he or she is entitled to both,
undermines, rather than protects, the rationality of the
process, and elevates the speculative concerns of a jury over
the statutory rights of a defendant.15
would reasonably be supported by the evidence adduced at trial;
otherwise, this case would likely not be before us, as this
defendant did receive an instruction on the lesser included
offense of murder in the second degree. See Woodward, 427 Mass.
at 662 (where judge instructed jury on murder in first degree
and murder in second degree, Commonwealth could also request
instruction on involuntary manslaughter). In concluding that
this defendant is not entitled to a more protective rule than
that articulated in Spaziano, the court fails to acknowledge the
existing differences between the Federal rule and ours, and why
Massachusetts provides a more protective standard.
15
Although I disagree with the court's prioritization of
the jury's speculative concerns, an alternative approach is
available to avoid diminishing the defendant's rights. In cases
where an essential element of the charged crime is in dispute
16
The approach of the court has the effect of forcing the
defendant to choose between an all-or-nothing defense (depriving
him of the right to be found guilty of no more than what the
Commonwealth has proved beyond a reasonable doubt) and waiving
the statute of limitations on the lesser included offense (a
viable affirmative defense). Given our statutory law, this
Hobson's choice is untenable. For these reasons, I respectfully
dissent.
but a lesser included offense is theoretically barred by the
statute of limitations, a trial judge could instruct the jury to
return a general verdict with a special question as to the
essential element in dispute (in this case, malice). Where the
jury's answer to the special question reveals that the disputed
element is not present, and the appropriate verdict would be a
time-barred offense, the judge would enter a judgment of "not
guilty" because of the statute of limitations.