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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 seconddegree 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.