lesser included offense instruction in Massachusetts

2024The judge also denied the defendant's request for an instruction on indecent assault and battery, a lesser included offense of aggravated rape.[14] On request, a judge must give a lesser included offense instruction whenever "an element distinguishing the two crimes is sufficiently in dispute so that a jury could rationally find the defendant 'innocent of the greater and guilty of the lesser included offense.'" Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 693 (1998), quoting Commonwealth v. Egerton, 396 Mass. 499, 504 (1986).

1998A lesser included offense instruction is warranted if an element distinguishing the two crimes is sufficiently in dispute so that a jury could rationally find the defendant “innocent of the greater and guilty of the lesser included offense.” Commonwealth v. Egerton, 396 Mass. 499, 504 (1986), quoting from United States v. Brischetto, 538 F.2d 208, 209 (8th Cir. 1976).

2023"In determining whether there is such a hypothesis, 'the judge may consider the possibility that the jury reasonably may disbelieve the witnesses' testimony regarding an element required of the greater, but not the lesser included, offense . . . even though the element that distinguishes the two offenses was not specifically disputed or put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass. 415, 424-425 (2012), quoting Porro, supra. The defendant, relying on Commonwealth v. Donlan, 436 Mass. 329, 337 (2002), argues that the lesser included offense instruction was improper because there

2023"In determining whether there is such a hypothesis, 'the judge may consider the possibility that the jury reasonably may disbelieve the witnesses' testimony regarding an element required of the greater, but not the lesser included, offense . . . even though the element that distinguishes the two offenses was not specifically disputed or put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass. 415, 424-425 (2012), quoting Porro, supra. The defendant, relying on Commonwealth v. Donlan, 436 Mass. 329, 337 (2002), argues that the lesser included offense instruction was improper because there

2023See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013); Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not error to give a lesser included offense instruction 'if on any sexual motion," and she "could feel his penis touching [her] vagina" through his clothing. 3 hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense]' and not guilty of the greater offense." Commonwealth v. Porro, 458 Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass. 130, 132 (1994).

2015Where, as here, “the issue is whether the judge erred in giving a lesser included instruction rather than whether the judge erred by failing to give such an instruction: it is not error to give a lesser included offense instruction ‘if on any hypothesis of the evidence, the jury could have found the defendant!] guilty of [the lesser included offense]’ and not guilty of the greater offense.” Porro, supra at 537 , quoting Commonwealth v. Thayer, 418 Mass. 130, 132 (1994).

2017If, 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.

2017See Woodward, supra. The defendant’s request for a lesser included offense instruction in this case, however, presents a complication that this court has not addressed: how a trial judge should 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.

2024The judge also denied the defendant's request for an instruction on indecent assault and battery, a lesser included offense of aggravated rape.[14] On request, a judge must give a lesser included offense instruction whenever "an element distinguishing the two crimes is sufficiently in dispute so that a jury could rationally find the defendant 'innocent of the greater and guilty of the lesser included offense.'" Commonwealth v. Drewnowski, 44 Mass. App. Ct. 687, 693 (1998), quoting Commonwealth v. Egerton, 396 Mass. 499, 504 (1986).

2019It is equally clear that, "if the evidence is sufficiently in dispute at the trial so that a jury may rationally find the defendant not guilty of the greater and guilty of the lesser offense, a judge should give a lesser included offense instruction." Commonwealth v. Drewnowski , 44 Mass. App. Ct. 687 , 692 (1998).

2023But "even when evidence is introduced that would justify conviction for a lesser included offense, the defendant is not entitled to an instruction thereupon unless the proof on the 'elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.'" Id., quoting Commonwealth v. Souza, 428 Mass. 478, 494 (1998).

1999Generally, a trial judge should instruct on a lesser included offense when (1) as matter of law, the offense is a lesser included offense of the crime charged; and (2) “the evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense.” Commonwealth v. Souza, 428 Mass. 478, 493-494 (1998) (internal quotations omitted). “[I]f the evidence is sufficiently in dispute at the trial so that a jury may rationally find the defendant not guilty of the greater and guilty of the lesser offense, a judge should give a lesser included

1994Although there may be exceptions, see Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46, 52 (1986), ordinarily, to be entitled to a lesser included offense instruction, defense counsel must request it.

1991Even assuming a lesser included offense instruction might, in some circumstances, be required in the absence of a defense request, see Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46, 52 (1986), the evidence in this case did not require it.

2024In determining whether to give a lesser included offense instruction in cases involving sexual assault, the judge may consider the possibility that "a jury reasonably could be convinced by the victim's testimony that the defendant sexually assaulted her but not be convinced beyond a reasonable doubt that penetration occurred." Porro, supra at 537 n.10.

2023See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013); Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not error to give a lesser included offense instruction 'if on any sexual motion," and she "could feel his penis touching [her] vagina" through his clothing. 3 hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense]' and not guilty of the greater offense." Commonwealth v. Porro, 458 Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass. 130, 132 (1994).

2013Finally, the defendant argues that the reasonable inference of Jenna’s testimony in regards to digital penetration is that she was clothed during the incident and, therefore, “there was no evidence that the touching was under her clothing.” Thus, the defendant asserts that the judge erred in not instructing the jury, sua sponte, on the lesser included offense of indecent assault and battery. “[A] judge must give a lesser included offense instruction if, on the evidence, there is a rational basis for acquitting the defendant of the greater offense and convicting him of the lesser included offen

1994But if a taking could be found, then, as indicated in our first point above, the taking was indubitably from the person; indeed, the defense had offered no other theory at trial. “[Tjhere can be no basis for a lesser included offense instruction unless an element which distinguishes the greater from the lesser crime ... is sufficiently in dispute at the trial so that a jury may rationally find the defendant not guilty of the greater and guilty of the lesser offense.” Commonwealth v. Thayer, 35 Mass. App. Ct. 599, 602 (1993), S.C., 418 Mass. 130 (1994).

1994See Commonwealth v. Roberts, 407 Mass. 731, 737 (1990). 5 *192 The evidence justifying the judge’s instruction distinguishing a joint venture to beat the victim with fists from a joint venture to murder her would have required an instruction on the lesser included offense of assault and battery had such an instruction been requested.

1994The point was remarked on in Commonwealth v. Roberts, 407 Mass. 731, 737 (1990), in which the court emphasized that a trial judge on request must, when the evidence permits, give a lesser included offense instruction, but that the defense was entitled to adopt an all-or-nothing strategy.

2023"A specific unanimity instruction is required where an 'indictment alleges in statutory terms a criminal offense occurring during a period of several months and, at trial, there is evidence that the defendant committed several such offenses 2 The defendant objected to the judge providing a lesser included offense instruction and a prior bad acts instruction. 6 within that period.'" Commonwealth v. Rios, 96 Mass. App. Ct. 463 , 475 (2019), quoting Commonwealth v. Sanchez, 423 Mass. 591, 598 (1996).

2020"A lesser included offense instruction should be given where 'the evidence at trial presents "a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense."'" Commonwealth v. Rios, 96 Mass. App. Ct. 463 , 476 (2019), quoting Commonwealth v. Donlan, 436 Mass. 329, 335 (2002).

2019From this evidence the jury could have found that there was sufficient proof that the defendant indecently assaulted the victim, but insufficient proof of penetration. "[I]t is not error to give a lesser included offense instruction 'if on any hypothesis of the evidence, the jury could have found the defendant guilty of the lesser included offense and not guilty of the greater offense.' " Commonwealth v. Russell , 470 Mass. 464 , 480 (2015), quoting Commonwealth v. Porro , 458 Mass. 526 , 536 (2010).

2019See Commonwealth v. Russell , 470 Mass. 464 , 480 (2015) (instruction on lesser included offense may be given "if on any hypothesis of the evidence, the jury could have found the defendant[ ] guilty of [the lesser included offense] and not guilty of the greater offense" [citation omitted] ).

2025See Commonwealth v. Curtis, 417 Mass. 619, 631 (1994).

2023"A specific unanimity instruction is required where an 'indictment alleges in statutory terms a criminal offense occurring during a period of several months and, at trial, there is evidence that the defendant committed several such offenses 2 The defendant objected to the judge providing a lesser included offense instruction and a prior bad acts instruction. 6 within that period.'" Commonwealth v. Rios, 96 Mass. App. Ct. 463 , 475 (2019), quoting Commonwealth v. Sanchez, 423 Mass. 591, 598 (1996).

2023See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013); Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not error to give a lesser included offense instruction 'if on any sexual motion," and she "could feel his penis touching [her] vagina" through his clothing. 3 hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense]' and not guilty of the greater offense." Commonwealth v. Porro, 458 Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass. 130, 132 (1994).

2023"In determining whether there is such a hypothesis, 'the judge may consider the possibility that the jury reasonably may disbelieve the witnesses' testimony regarding an element required of the greater, but not the lesser included, offense . . . even though the element that distinguishes the two offenses was not specifically disputed or put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass. 415, 424-425 (2012), quoting Porro, supra. The defendant, relying on Commonwealth v. Donlan, 436 Mass. 329, 337 (2002), argues that the lesser included offense instruction was improper because there

2023"In determining whether there is such a hypothesis, 'the judge may consider the possibility that the jury reasonably may disbelieve the witnesses' testimony regarding an element required of the greater, but not the lesser included, offense . . . even though the element that distinguishes the two offenses was not specifically disputed or put in issue at trial.'" Commonwealth v. Roderiques, 462 Mass. 415, 424-425 (2012), quoting Porro, supra. The defendant, relying on Commonwealth v. Donlan, 436 Mass. 329, 337 (2002), argues that the lesser included offense instruction was improper because there

2023See Commonwealth v. Suero, 465 Mass. 215, 219-220 (2013); Commonwealth v. Walker, 426 Mass. 301, 304 (1997). "[I]t is not error to give a lesser included offense instruction 'if on any sexual motion," and she "could feel his penis touching [her] vagina" through his clothing. 3 hypothesis of the evidence, the jury could have found the defendant[] guilty of [the lesser included offense]' and not guilty of the greater offense." Commonwealth v. Porro, 458 Mass. 526, 537 (2010), quoting Commonwealth v. Thayer, 418 Mass. 130, 132 (1994).

2023See Mills, 54 Mass. App. Ct. at 554 (concluding that "no error flowed form the judge's failure to instruct, sua sponte, 3 Indeed, defense counsel declined such an instruction. 2 that simple assault and battery was a lesser included offense of assault and battery by means of a dangerous weapon" where "[d]efense counsel's omission of a request for an instruction on the subject appear[ed] consistent with an all-or-nothing defense strategy").

2023Commonwealth v. Mills, 54 Mass. App. Ct. 552, 554 (2002).

2020Commonwealth v. Dyous, 436 Mass. 719, 731 (2002).

2017See State v. Muentner, 138 Wis. 2d 374, 391-393 (1987) (same).

2017See State v. Muentner, 138 Wis. 2d 374, 391-393 (1987) (same).

2017Accord 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.

2017The 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).

2017The 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).

2017See Commonwealth v. Claudio, 418 Mass. 103 , 111 n.6 (1994) (defendant's request for instruction, combined with prosecutor's postcharge claim of error in omitting such instruction, sufficed to preserve issue for defendant's appeal).

2017See also Commonwealth v. Pellegrini, 414 Mass. 402, 404-405 (1993) 13 citing any authority suggesting that a lesser included offense instruction was required in these circumstances, the defendant asserts that the jury, who returned guilty verdicts on both charges, might have chosen to convict on only the manslaughter charge had they known that it was a lesser included offense.

2017That they also found the evidence sufficient to support the lesser included offense is of no consequence.6 We discern neither error nor prejudice, let (prosecutor has exclusive power to decide whether to prosecute a case). 6 The defendant suggests that the jury may have been confused by the distinction between reckless conduct and third prong malice, see Commonwealth v. Chase, 433 Mass. 293, 302 (2001), and, without a lesser included offense instruction, might not have understood that they could return a guilty verdict on involuntary manslaughter as a less serious offense than murder in the se

2017Second, 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.

2017Second, 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.

2017Finally, 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.

2017Finally, 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.

2017As 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 645, quoting Beck v. Alabama, 447 U.S. 625, 635 (1980).

2017As 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).