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Justices probe trial judge’s refusal to give lesser-included instruction on counts 3–5
Summary
During argument in Commonwealth v. McCaffrey, the court considered whether the trial judge erred by declining to instruct the jury on lesser-included offenses for counts 3–5, with the Commonwealth arguing the trial testimony was unequivocal and the defense saying earlier ambiguous statements warranted the instruction.
BOSTON — The Massachusetts Supreme Judicial Court questioned whether the trial judge erred in refusing a requested lesser-included-offense instruction for counts 3–5 in the prosecution of Scott McCaffrey.
Assistant District Attorney Hansen told the court the victim “is 16 years old when she's testifying” and “clearly testified on direct examination that she was penetrated,” arguing that the trial testimony supported the greater offense and that earlier, vaguer statements were impeachment material rather than substantive evidence that would compel a lesser-included instruction.
Defense counsel argued cross-examination revealed inconsistencies between trial testimony and earlier statements to investigators, and that those inconsistencies formed the basis for requesting a lesser‑included instruction. A justice asked, “Isn't this a classic question for the jury as to which offense occurred?” and pressed whether an earlier ambiguous statement admitted for impeachment would have required the judge to give the lesser instruction.
Hansen replied that the question for a lesser-included instruction requires viewing the evidence in the light most favorable to the defendant but still requires a clear and consistent basis for every jury to find only the lesser offense. She said, “I don't see any form of interpretation that she says I'm touched in between my lips where I pee from. That very clearly constitutes [rape].” (Bracketed language in transcript omitted for clarity; the excerpt reflects counsel’s phrasing about penetration.)
The justices and counsel discussed whether the jury received any limiting instruction when prior inconsistent statements were admitted for impeachment and whether a lack of a limiting instruction would change the analysis. Hansen said she did not recall whether a limiting instruction was given; the court examined whether the earlier statements’ use and any limits placed on them affected whether the lesser instruction was required.
The justices also asked what relief would follow if they concluded the judge erred in refusing the instruction. Counsel agreed that a finding of error on the lesser-included issue would result in reversal of the convictions on the affected counts and potentially avoid reaching the indictment-amendment question depending on appellate disposition.
Ending: The court did not rule at argument. The justices will decide whether the trial judge’s refusal to give the requested lesser-included instruction warrants reversal on counts 3–5.
