Supreme Judicial Court of Massachusetts, Middlesex
Heard: February 7, 2017.
found and returned in the Superior Court Department on May
cases were tried before Janet Kenton-Walker, J. The Supreme
Judicial Court on its own initiative transferred the case
from the Appeals Court.
L. Sheketoff for the defendant.
Kirshenbaum, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ. 
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 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
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. 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.
indictment for murder was not returned against the defendant
until after the investigation into the crime recommenced
around 2007. Subsequently, the defendant and his friends were
all charged with murder. 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.
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.
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 his friends again
drove away. Police discovered the victim's body the next
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
defendant's request for a lesser included offense
instruction in this case, however, presents a complication
that 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?
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.
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.
The three rules.
Federal and State courts, three distinct rules have
developed. First, as a matter of 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.
The Spaziano rule.
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 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."
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 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. See Spaziano, supra
at 455-456; Woodward, 427 Mass. at 662-663.
The Short rule.
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 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. ...