The Intersection of Statutory Rights: Massachusetts Adopts Pick and Choose Approach for Criminal Defendants.

• Author: Sullivan, Kelleigh

"I believe ... 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." (1)

1. INTRODUCTION

   Massachusetts grants criminal defendants certain statutory rights and protections. (2) Among those are the right to an affirmative defense invoking the statute of limitations, as well as a jury instruction on a lesser-included offense. (3) The statute of limitations seeks to protect a defendant against prosecution after an established time period has passed. (4) Likewise, policy favors instructing a jury on lesser offenses to "afford ... a less drastic alternative than the choice between conviction of offense charged and an acquittal," which can be strategic for both prosecutor and defendant. (5)

   While these statutory rights are typically straightforward, a conflict arises when the two rights are applied simultaneously. (6) This can be illustrated in a first-degree murder trial. (7) A defendant may request an instruction on the lesser-included offense of manslaughter; however, the six-year statute of limitations period may have passed. (8) Courts are conflicted about how to address this intersection of statutory rights; once instructed on the lesser time-barred charge, the defendant will raise the affirmative statute of limitations defense against the lesser charge. (9)

   Currently, states approach this issue in several different ways, and thus created the following rules: the Spaziano rule, the Short rule, and the Delisle rule. (10) The Spaziano rule holds that a defendant must waive his or her statute of limitations right in order for the judge to provide the jury with instructions on a lesser offense. (11) The Short rule allows both statutory rights to apply concurrently, and acquits the defendant if found guilty of a time-barred lesser offense. (12) In a similar approach, the Delisle rule also allows both rights to prevail, but will inform the jury of the consequence a guilty verdict has on the lesser offense. (13)

   In Commonwealth v. Shelley, (14) Massachusetts incorrectly adopted the Spaziano rule requiring defendants to pick one right over the other. (15) In Part II, this Note explores the history and policy considerations of the two statutory rights, and the concerns each court contemplated in establishing its respective rule. (16) Then, in Part III, this Note analyzes why Massachusetts erred in adopting the Spaziano rule and how the rule undermines the importance of these two statutory rights. (17) Finally, this Note concludes that the Short rule should be the law in Massachusetts, and suggests legislative enactment of such rule. (18)

2. HISTORY

   1. Statutory Rights Involved

      1. Background and Policy Purpose of the Statute of Limitations

         The statute of limitations is a fixed time period after which an offense may not be prosecuted, acting as either an affirmative defense or a jurisdictional bar. (19) This distinction--affirmative defense versus jurisdictional bar--is significant, in that, if enacted as an affirmative defense, the defendant may invoke that right, may choose not to raise it, or may waive the right completely. (20) In contrast, if a state enacts this to be a jurisdictional bar, a defendant may raise the issue at any time during trial, and the court is without jurisdiction to try the offense. (21)

         The statute of limitations reflects a legislature's judgment that after a certain period of time, the state is not going to convict a defendant of that crime. (22) When enacting a particular statute of limitations, a legislature considers the crime's severity and the nature of the evidence involved. (23) The limitations period reflects the desire to prosecute a crime while evidence is reasonably fresh to avoid the possibility of erroneous conviction or an inability for a defendant to challenge evidence. (24) Public policy not only seeks to protect defendants from claims that are too old to litigate, but it also compels prosecutors to take action. (25)

         In addition to policy concerns regarding prosecutor and defendant, the statute of limitations period also reflects a societal interest. (26) The purpose of criminalizing an act is to prevent the act from occurring, punish the perpetrator, and protect society. (27) Enacting a specified time period during which the perpetrator can no longer be convicted suggests the legislative intent that these societal interests--that criminalized the behavior in the first place--are no longer a priority. (28) Enacting a statute of limitations for a criminal offense vests a right in the defendant to no longer be punished for that crime after a specified period of time. (29)

      2. Background and Policy Purpose of a Lesser-Included Offense Instruction

         Lesser-included offenses are those necessarily included in the offense charged. (30) A defendant may be convicted of a crime, though not expressly charged with that precise crime, if its elements are included in the charged offense. (31) When a defendant or prosecutor requests a lesser-included offense instruction, a judge must instruct if evidence permits a finding on that offense. (32) The instruction's purpose is to afford the jury a less drastic option than the ordinary two--conviction or acquittal. (33)

         In Beck v. Alabama, (34) the Supreme Court reviewed a conviction of a capital crime, which the legislature statutorily prohibited courts to instruct juries on lesser-included offenses. (35) Evidence at trial supported a lesser charge of felony murder; the defendant's testimony recounted that the killing was unintentional and unexpected. (36) The state of Alabama conceded that this evidence supports charging a lesser crime due to the absence of the requisite mens rea--intentional killing--needed to prove the crime charged. (37) The Supreme Court reversed the conviction, and held the statute unconstitutional because the jury was unable to consider the lesser-included offenses that were clearly supported by evidence. (38) The Court described this statutory right as a "procedural safeguard" in situations where evidence unquestionably establishes guilt of some offense, but casts reasonable doubt as to one element of the charged offense. (39) The Court concluded that the failure to give a third, less drastic option between conviction or acquittal, undoubtedly enhances the risk of unwarranted or erroneous convictions. (40)

         Additionally, public policy favors instructing juries on lesser-included offenses. (41) The instruction may equally benefit both parties: As the defendant, it is useful to have a less serious crime instructed to cast doubt on the charged offense; as the prosecutor, having another charge instructed may increase the likelihood of a conviction. (42) Putting all possibilities in front of the jury, rather than an all-or-nothing decision, seeks to guarantee a fair trial. (43)

         While the lesser-included offense doctrine serves the purpose of ensuring fair trials, attorneys began using this (or not using it) as a trial strategy. (44) Typically a defendant will want the instruction because it may result in a mitigated verdict, but if the case is particularly weak, the absence of an instruction may force the jury to acquit. (45) In that situation, it is strategic for a prosecutor to request the lesser offense be instructed to increase the chance of a conviction. (46) Whether a trial strategy or an attempt to avoid wrongful conviction, lesser-included offenses are a notable right vested in the defendant through statute. (47)

   2. When the Rights Conflict: The Emergence of Three Rules

      Massachusetts first encountered this intersection of statutory rights in Shelley, when the defendant requested the lesser-included offense of involuntary manslaughter, even though the statute of limitations had run. (48) The prosecutor acknowledged that the evidence supports a finding of both first-degree murder (the charged offense) and involuntary manslaughter, but maintained that the defendant would have to waive his right to the statute of limitations defense. (49) The trial judge applied the Spaziano rule, declining to adopt the defendant's other two proposals. (50) The defendant did not wish to waive his right to the statute of limitations defense, and consequently the judge did not instruct the jury on the lesser-included offense. (51) On appeal, the Massachusetts Supreme Judicial Court (SJC) recognized that the defendant's request for a time-barred lesser-included offense instruction "present[ed] a complication that [the SJC] has not addressed." (52)

      1. Spaziano v. Florida

         The first, most prevalent rule arising from this conflict began in Florida. (53) The defendant, Spaziano, was indicted for first-degree murder--a capital offense in Florida. (54) At trial, the court informed the defendant it would instruct the jury on lesser-included offenses if Spaziano would waive his statute of limitations defense on those three offenses. (55) Spaziano refused to waive the statute of limitations, and the judge instructed the jury only on first-degree murder, with the jury later finding the defendant guilty. (56)

         On appeal, Spaziano argued the court's refusal to instruct the jury on lesser-included offenses was a reversible error, and he should not have to waive a substantive right to receive a constitutionally fair trial. (57) The Court disagreed that Beck required courts to instruct juries on lesser-included offenses, but rather, focused on the reliability factor that such an instruction would afford. (58) In Beck, the Court held that a statute eliminating lesser-included offense instructions was unconstitutional. (59) Because Spaziano could not be convicted of the time-barred, lesser-included offenses, the Court reasoned that such an instruction would introduce distortion in the fact-finding process, rather than enhance...