Commonwealth v. Shelley (Lawyers Weekly No. 10-141-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]