Whether a defendant is entitled to an instruction on the lesser included offense of manslaughter, if a conviction on that offense is barred by the statute of limitations.

The defendant, Margaret Earle, appeals from her second degree murder conviction following the death of her 20-month-old daughter. The evidence showed that the child had been stomped on by Earle’s boyfriend, Michael Burnham (who was later convicted of first-degree murder). The child died less than 24 hours later of a severed lower intestine. The contested issue at trial was whether Earle knew that the child was dying in time to seek medical attention. Experts testified that a reasonable caretaker would have know the child was “gravely” or “severely” ill, but there was no explicit testimony that a reasonable caretaker would have known the child was going to die.

The jury convicted Earle of second degree murder, she appealed, and the SJC granted direct appellate review.

1. Sufficiency of evidence for murder. The Commonwealth’s theory was that Earle’s failure to seek medical attention when she had a duty to do so constituted the third prong of malice: intent to act in a manner creating a plain and strong likelihood of death or grievous harm. Earle argues that, without testimony that a reasonable caretaker would have known the child was going to die, she could be convicted of no more than involuntary manslaughter, which would require her to ignore a high degree of likelihood of substantial harm to her child. Commonwealth v. Gallison, 383 Mass. 659, 665 (1981).
2. Availability of a manslaughter instruction. Earle requested an involuntary manslaughter instruction as a lesser included offense of murder. The statute of limitations had expired for a manslaughter conviction. The judge refused to give the instruction unless Earle waived her statute of limitations defense, which she refused to do. Earle argues that she was entitled to an instruction on manslaughter, regardless of the statute of limitations, because it would sharpen the jury’s understanding of the “plain and strong likelihood of death” standard as opposed to the “high degree of likelihood of substantial harm” standard, and prevent her conviction on a higher charge than the evidence proved. Earle cites the Vermont case of State v. Delisle, 162 Vt. 293, 306 (1994).

1. Sufficiency of evidence for murder. At bottom, the Commonwealth proved that Earle treated serious symptoms as though they were a common flu, for a matter of hours, resulting in her child’s death, and was afterward evasive about her actions. That is a slender reed on which to base a murder conviction. However, the expert testimony that any parent would have known their child was “severely” or “gravely” ill is likely to support the finding that she ignored a plain and strong likelihood of grievous harm. 
2. Availability of a manslaughter instruction. The question of a manslaughter instruction is less clear. From one point of view, the jury are presumed to have followed the instructions given them, and to have only convicted of second degree murder because they found a plain and strong likelihood of death beyond a reasonable doubt — which should be unaffected by instruction on another (superfluous) charge. From another point of view, it is easy to imagine that the jury would instead have found a “high degree of likelihood of substantial harm” if they had been given the alternative; if the only effect of giving a charge would be to reveal that the jury should not have convicted on a higher charge, it is hard to see why it should not be given. It is difficult to predict which direction the Court will lean.