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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.
