Commonwealth v. Fredette , 480 Mass. 75 ( 2018 )

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SJC-11931
COMMONWEALTH vs. JOHN FREDETTE.
Worcester. November 7, 2017. - July 13, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Homicide. Felony-Murder Rule. Kidnapping.
Indictment found and returned in the Superior Court
Department on February 15, 2012.
The case was tried before Janet Kenton-Walker, J., and a
motion for a new trial, filed on September 23, 2015, was heard
by her.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
Joseph A. Hanofee for the defendant.
LOWY, J. In 2014, a Superior Court jury convicted the
defendant, John Fredette, of murder in the first degree on a
theory of felony-murder, with aggravated kidnapping as the
2
predicate felony.1 The jury based their finding of aggravated
kidnapping on the third paragraph of the current version of the
kidnapping statute, which punishes a kidnapping committed "while
armed with a dangerous weapon and inflict[ing] serious bodily
injury thereby upon another person." G. L. c. 265, § 26, third
par.
The defendant appealed and, after his appeal was entered in
this court, he filed a motion for a new trial, arguing that the
trial judge erred in not providing a merger doctrine instruction
to the jury sua sponte. As discussed infra, the merger doctrine
limits the application of the felony-murder rule by requiring
the Commonwealth to prove that the defendant committed or
attempted to commit a felony that is independent of the conduct
necessary to cause the victim's death. This prevents every
assault that results in a homicide from serving as the predicate
for felony-murder. The defendant claimed that because a single
act of violence (a shooting) caused the victim's death and
satisfied an element of the aggravated kidnapping, the felony of
aggravated kidnapping merged with the killing and could not
serve as the predicate for felony-murder. The motion judge, who
was also the trial judge, agreed. The judge concluded that a
new trial was required because the omission of an instruction on
The jury did not find the defendant guilty of murder in
1
the first degree on a theory of deliberate premeditation.
3
merger created a substantial risk of a miscarriage of justice.
The Commonwealth appealed from that ruling, which is the matter
presently before us.2 We conclude that because the underlying
predicate felony -- kidnapping -- has an intent or purpose
separate and distinct from the act causing physical injury or
death, aggravated kidnapping is sufficiently independent of the
resulting homicide and, therefore, the merger doctrine is
inapplicable. Accordingly, the omission of a merger instruction
was not an error, and the defendant's motion for a new trial
should not have been granted on that ground.
In the course of deciding the Commonwealth's appeal,
however, we discovered that the current version of the
kidnapping statute, G. L. c. 265, § 26, under which the
defendant was prosecuted, is materially different from the
version that was in effect when the killing occurred in 1994.
Specifically, in 1994, G. L. c. 265, § 26, did not include the
form of aggravated kidnapping that the Commonwealth relied on as
the predicate for murder in the first degree on a theory of
felony-murder (i.e., kidnapping aggravated by being armed with a
dangerous weapon and inflicting serious bodily injury on the
2 At our request, the parties submitted additional briefing
concerning whether the merger doctrine is applicable to the
predicate felony of aggravated kidnapping.
4
victim).3 Moreover, G. L. c. 265, § 26, as it existed in 1994,
carried a maximum sentence of ten years in prison and, as it
relates to the defendant's case, could not have supported a
conviction of murder in the first degree on a theory of felony-
murder because it was not a felony punishable by up to life
imprisonment (i.e., a life felony). The Commonwealth now
acknowledges that, because of this error, the defendant's
conviction of murder in the first degree cannot stand.
Accordingly, we also vacate the defendant's conviction of murder
in the first degree and remand the case to the trial judge to
determine whether, on this record, a conviction of murder in the
second degree should enter or whether the defendant is entitled
to a new trial.4
Background. 1. Facts. We summarize the facts the jury
could have found as set forth by the judge in her written
decision on the defendant's motion, supplemented with
uncontroverted testimony from trial. On the evening of February
15, 1994, the victim walked out of a bar in Worcester, leaving
3 At our request, the parties submitted additional briefing
concerning whether this discrepancy constituted an ex post facto
violation and, if so, what would be the appropriate disposition
for the defendant's appeal.
4 If the Superior Court judge determines that a new trial is
warranted, we note that, as discussed in note 9, infra,
Commonwealth v. Brown, 477 Mass. 805, 807 (2017), eliminated
felony-murder in the second degree as a theory of murder for
cases tried after Brown was decided.
5
behind his favorite Boston Celtics jacket, house keys, a package
of cigarettes, and an unfinished beer. He was never seen again.
The victim's disappearance remained unsolved for eighteen years.
On February 15, 2012, a Worcester County grand jury returned an
indictment charging the defendant with murder. Matteo Trotto
and Elias Samia, two of the defendant's cohorts in his illegal
drug operation, were also indicted for the murder.5
The defendant had been arrested for trafficking in cocaine
a few months before the victim disappeared, following an
undercover investigation into the defendant's drug operation.
The defendant and Trotto believed that the victim might have
been the informant who provided the police with information
leading to the defendant's arrest. To evade conviction, the
defendant and Trotto concocted a scheme to have the victim
testify on the defendant's behalf and offer an exculpatory,
perjured story. According to this plan, the victim would
testify that he was the confidential informant who provided the
information to the police that established probable cause to
arrest the defendant, and explain that the information he
provided was false. To ensure that the victim would testify,
the defendant and Trotto gave him copious amounts of cocaine,
while also threatening his life.
5 Matteo Trotto and Elias Samia were tried separately and
were both convicted. Their appeals are currently pending.
6
On the day of the defendant's trial, the victim never
appeared in court to testify. As a result, on February 14,
1994, the defendant pleaded guilty to a reduced offense. He was
sentenced to a State prison sentence, but execution of that
sentence was stayed.
On the evening of February 15, 1994, the victim was sitting
in the bar when Trotto appeared, coaxed the victim outside, and
ushered him into a motor vehicle occupied by the defendant and
Samia. Soon after the victim entered the vehicle, the defendant
and Samia began severely beating him. In the course of the
beating, Samia shot and killed the victim. The defendant,
Samia, and Trotto buried the victim's body in a shallow grave.
The victim's body was never recovered.
2. The jury instructions. Insofar as relevant here, the
judge instructed the jury on murder in the first degree as a
joint venturer on the theories of deliberate premeditation and
felony-murder, with aggravated kidnapping as the predicate
felony.6 Specifically, she instructed the jury that the
Commonwealth had the burden to prove beyond a reasonable doubt
that
Although the defendant
6 was not charged separately with
aggravated kidnapping, likely because the statute of limitations
had expired, the Commonwealth relied on it as the predicate
felony for the prosecution of murder in the first degree on a
theory of felony-murder.
7
"the defendant committed the kidnapping while armed
with a dangerous weapon and inflicted serious bodily
injury against [the victim], or knowingly participated
with Matteo Trotto and Elias Samia in doing so, with
the knowledge that Elias Samia possessed a weapon and
that the defendant knew Elias Samia would or could use
that weapon in the commission of the crime."
See G. L. c. 265, § 26, third par.7
The judge also instructed the jury that the Commonwealth
had to prove beyond a reasonable doubt that the defendant
committed the kidnapping while armed with a dangerous weapon and
that a firearm was a dangerous weapon.8 The defendant did not
request a merger instruction, and the judge did not provide such
an instruction sua sponte. The jury convicted the defendant of
murder in the first degree on a theory of felony-murder.
3. The defendant's motion for a new trial. Although the
defendant did not request a merger instruction at trial, he
contended in his motion for a new trial that the trial judge's
7 The Commonwealth did not request an instruction on
aggravated kidnapping under G. L. c. 265, § 26, second par., and
such an instruction was not provided. In contrast to aggravated
kidnapping under the third paragraph of G. L. c. 265, § 26,
aggravated kidnapping under the second paragraph of G. L.
c. 265, § 26, would have been required the Commonwealth to prove
beyond a reasonable doubt only that the defendant committed a
kidnapping "while armed with a firearm, rifle, shotgun, machine
gun or assault weapon," or knowing that Elias Samia was so
armed.
8 The jury also were instructed on murder in the second
degree as a lesser included offense of murder in the first
degree committed by deliberate premeditation and felony-murder
in the second degree as a lesser included offense of felony-
murder in the first degree.
8
failure to provide the instruction, sua sponte, created a
substantial risk of a miscarriage of justice. Specifically, he
claimed that because a single act of violence (the shooting)
caused the victim's death and thus completed an element of
aggravated kidnapping (inflicting serious bodily injury), the
felony of aggravated kidnapping merged with the killing and
could not have served as the predicate for felony-murder. As
mentioned, the judge agreed, and the Commonwealth appealed from
that ruling.
Discussion. We review the disposition of a motion for a
new trial to determine whether there has been "a significant
error of law or other abuse of discretion." Commonwealth v.
Grace, 397 Mass. 303, 307 (1986). We conclude that the judge
erred in granting the defendant's motion for a new trial because
the intent or purpose underlying the felony of aggravated
kidnapping was separate and distinct from the assault that
resulted in the homicide; thus, the merger doctrine was
inapplicable.
Before we explain the reasons for our conclusion, we
reiterate the analytical framework required to determine whether
a felony merges with a subsequent killing, as it applies to
cases tried prior to Commonwealth v. Brown, 477 Mass. 805, 807
(2017), where this court prospectively abolished the concept of
9
constructive malice, which in turn eliminated our common-law
felony-murder rule as an independent theory of murder.9
9 After Brown, 477 Mass. at 807, "felony-murder" serves only
to enhance a murder occurring during the commission of a life
felony to a murder in the first degree. Id. at 832 (Gants,
C.J., concurring). Although we need not decide whether this
change renders the merger doctrine obsolete, Brown eliminated
the perceived injustice of the felony-murder rule that the
merger doctrine was designed to mitigate. Id. at 831 (Gants,
C.J., concurring). In Brown, we also observed that Michigan had
already abolished the felony-murder rule under its common law.
Id. at 833 (Gants, C.J., concurring), citing Commonwealth v.
Tejeda, 473 Mass. 269, 277 n.9 (2015) (discussing People v.
Aaron, 409 Mich. 672, 727-729 [1980]). We note that following
the abolition of the felony-murder rule in Michigan, appellate
courts in that State have rejected the claim that the merger
doctrine is still applicable. See People v. Magyar, 250 Mich.
App. 408, 411-412 (2002); People v. Jones, 209 Mich. App. 212,
214-215 (1995). We did not address this issue in Brown and we
do not do so here because the merger doctrine is inapplicable to
aggravated kidnapping.
Were we to assume, without deciding, that the merger
doctrine is generally obsolete after Brown, a vestige of the
doctrine would nevertheless apply to certain cases. Where a
murder occurred prior to our decision in Brown, but the
defendant's trial were to begin after our decision in Brown, and
the Commonwealth were to proceed on a theory of felony-murder
where the predicate felony did not have an independent purpose
from the intent to cause physical injury or death (e.g., armed
assault in a dwelling), the jury should be instructed on the
merger doctrine -- i.e., that the conduct constituting the
felony must be separate from the acts of personal violence
necessary to commit the killing. A merger instruction in those
circumstances would protect against possible disparate outcomes,
e.g., if the case had been tried prior to our decision in Brown.
If, after having been provided the merger instruction, the jury
should conclude that the felony merged with the killing, the
defendant could be found guilty of, at most, murder in the
second degree (assuming there were no other theories of murder
in the first degree presented by the Commonwealth). In those
circumstances, the defendant could be found guilty only of
murder in the second degree, but not on a felony-murder theory
because Brown eliminated felony-murder in the second degree.
10
1. The merger doctrine. "The effect of the felony-murder
rule is to substitute the intent to commit the underlying felony
for the malice aforethought required for murder. Thus, the rule
is one of 'constructive malice.'" Commonwealth v. Gunter, 427
Mass. 259, 271 (1998), quoting Commonwealth v. Matchett, 386
Mass. 492, 502 (1982). The merger doctrine functions as a
constraint on the application of the felony-murder rule by
limiting the circumstances in which a felony may serve as the
predicate for felony-murder. See Commonwealth v. Morin, 478
Mass. 415, 430 (2017). Specifically, the doctrine requires the
Commonwealth to prove that the defendant committed or attempted
to commit a felony that is independent of the act necessary for
the killing. See Commonwealth v. Holley, 478 Mass. 508, 519
(2017); Morin, supra. This requirement ensures that not every
assault that results in a death may serve as the predicate for
felony-murder. Morin, supra. Without the merger doctrine, the
distinction between murder and other homicides would be rendered
meaningless because all homicides could be enhanced to murder on
the theory of felony-murder with the assaultive conduct
preceding the homicide serving as the predicate felony. Id.,
quoting Gunter, 427 Mass. at 272. See Morin, supra, citing
Crump & Crump, In Defense of the Felony Murder Doctrine, 8 Harv.
J.L. & Pub. Pol'y 359, 377 (1985) (merger doctrine prevents
prosecution from bootstrapping lesser-included homicide offenses
11
into murder). For this reason, "where the only felony committed
[apart from the murder itself] was the assault upon the victim
which resulted in the death of the victim, the assault merge[s]
with the killing and [cannot] be relied upon by the state as an
ingredient of a 'felony murder.'" Commonwealth v. Quigley, 391
Mass. 461, 466 (1984), cert. denied, 471 U.S. 1115 (1985),
quoting State v. Branch, 244 Or. 97, 100 (1966).
As detailed infra, determining whether a predicate felony
merges with the homicide depends on the resolution of two
distinct inquiries. First, if the underlying predicate felony
has an intent or purpose separate and distinct from the act
causing physical injury or death, the merger doctrine is
inapplicable, and the felony may serve as the predicate for
felony-murder; no further analysis is required. See Holley, 478
Mass. at 519-520 ("intent to steal does not cause a homicide");
Morin, 478 Mass. at 431. If the felony does not have an
independent intent or purpose, the second inquiry is whether the
conduct constituting the felony is separate and distinct from
the conduct that caused the homicide itself. See Commonwealth
v. Kilburn, 438 Mass. 356, 358-359 (2003) (armed assault in
dwelling). If the conduct is distinct, the felony does not
merge with the homicide. See id. at 359. However, where the
underlying felony does not have an independent intent or
purpose, and the same act that is necessary to complete the
12
felony also causes the homicide, the felony merges with the
homicide and cannot serve as the predicate for felony-murder.
Id.
a. First inquiry: whether there is an independent
felonious purpose. Determining whether a felony is capable of
merging with the resulting homicide appears to be a source of
confusion in our case law. Compare Commonwealth v. Christian,
430 Mass. 552, 556-557 (2000) (analyzing intent of underlying
felony, armed robbery, to determine whether merger applies),
overruled on other grounds by Commonwealth v. Paulding, 438
Mass. 1 (2002), with Commonwealth v. Bell, 460 Mass. 294, 299-
303 (2011) (analyzing assaultive element of felony, armed home
invasion, to determine whether merger applies). See
Commonwealth v. Lopez, 87 Mass. App. Ct. 642, 646 (2015)
(analyzing whether and how analytical frameworks set forth in
Christian, supra, and Bell, supra, can coexist). We emphasize
that the merger doctrine analysis must always begin with
resolving the first inquiry -- whether the underlying felony is
capable of merging with the killing. See Holley, 478 Mass. at
520, citing Morin, 478 Mass. at 430. The merger doctrine is
inapplicable to felonies that have an underlying intent or
purpose separate and distinct from the intent to cause physical
injury or death. Holley, supra. Morin, supra. See State v.
Marquez, 376 P.3d 815, 823 (N.M. 2016) ("there must be a
13
felonious purpose that is independent from the purpose of
endangering the physical health of the victim before the
dangerous felony can be used" as predicate for felony-murder).
Determining whether a felony has an intent or purpose
separate and distinct from the act causing physical injury or
death requires an objective analysis of the predicate felony,
which is not influenced by the defendant's subjective motivation
or intent to commit the underlying felony. See id. ("a
dangerous felony may only serve as a predicate to felony murder
when the elements of any form of the predicate felony -- looked
at in the abstract -- require a felonious purpose independent
from the purpose of endangering the physical health of the
victim"). See also Holley, 478 Mass. at 520; Christian, 430
Mass. at 556-557. We further emphasize that this analysis
focuses on the intent or purpose underlying the predicate
felony, irrespective of any assaultive element contained in that
felony. See Christian, supra (armed robbery does not merge with
killing because underlying purpose of armed robbery is to steal,
which is independent of intent to harm victim); Commonwealth v.
Wade, 428 Mass. 147, 153 (1998), S.C., 467 Mass. 496 (2014) and
475 Mass. 54 (2016) (aggravated rape does not merge with killing
because underlying purpose of rape is independent of assault
causing serious bodily injury and death). We examine the
purpose of the underlying predicate felony, separate from any
14
assaultive element, because it is the intent to commit the
underlying felony, not the intent to commit an assault, that
"serves as the substitute for the malice requirement of murder."
Morin, 478 Mass. at 431, quoting Christian, supra at 556. See
Commonwealth v. Prater, 431 Mass. 86, 96-97 (2000) ("The focus
of the analysis is on the substitution of the intent, not on the
number of assaults"). Accordingly, a felony with an independent
purpose, despite containing an element of assault, is not
capable of merging with the resulting killing. See Morin,
supra. This analytical framework illustrates why we have long
held that "rape, arson, robbery and burglary are sufficiently
independent of the homicide, . . . [but] aggravated battery
toward the deceased will not do for felony murder" (citation
omitted). Quigley, 391 Mass. at 466.
The felony of armed robbery, which this court has analyzed
on several occasions, further elucidates the importance of
analyzing the intent or purpose of the underlying felony to
determine whether the merger doctrine is applicable. See
Holley, 478 Mass. at 520; Morin, 478 Mass. at 430-431; Prater,
431 Mass. at 96-97; Christian, 430 Mass. at 556. We have
concluded that the crime of armed robbery is independent of any
killing that results in the course of the commission or
attempted commission of that crime because "it is the intent to
steal, rather than the intent to assault, which is substituted
15
for malice[, and because] intent to steal does not cause a
homicide, the armed robbery does not merge with the killing."
Holley, supra. See Christian, supra (robbery is "[1] stealing
or taking of personal property of another [2] by force and
violence, or by assault and putting in fear," and "[r]obbery is
enhanced to an armed robbery when a defendant is armed"). Even
where a single act of violence not only completes the armed
robbery but also causes the victim's death (e.g., a single
gunshot), armed robbery does not merge with the killing because
the intent or purpose underlying an armed robbery is the intent
to steal, not to cause physical injury or death, regardless of
the eventual outcome of that crime. See Christian, supra at
557. For this reason, "[w]e can envision no situation in which
an armed robbery would not support a conviction of felony-
murder." Id. at 556.
We do not deviate from analyzing the intent or purpose of
the underlying felony where the crime at issue is an aggravated
felony and the aggravating element embodies assaultive conduct.
See Wade, 428 Mass. at 152-153 (rape enhanced to aggravated rape
where committed during commission of kidnapping or otherwise
resulted in serious bodily injury to victim). Although the
aggravated form of a felony may enhance that crime to a life
felony, the assaultive component "does not negate the intent to
commit the [underlying felony] that is the substitute for the
16
malice requirement of murder." Id. at 153. See Christian, 430
Mass. at 556 (although "[r]obbery is enhanced to an armed
robbery when a defendant is armed," that does not change
underlying purpose of felony, i.e., to steal). For example, in
Wade, supra, the predicate felony was aggravated rape, where the
pertinent aggravating factor was the infliction of serious
bodily injury on the victim. We concluded that the crime of
aggravated rape did not merge because it was the "intent to
commit the rape, not the intent to inflict serious bodily harm,
[that] was the substitute for the malice requirement of murder."
Id. at 153. Although the victim died as a result of the serious
bodily injury she sustained during the rape, we concluded that
the crime of aggravated rape did not implicate the merger
doctrine because the intent to rape was separate and distinct
from the intent to cause physical injury or death. Id.
Thus, where a predicate offense has an independent
felonious purpose separate and distinct from the intent to cause
physical injury or death, the merger doctrine is inapplicable
and the felony may serve as the predicate for felony murder.
b. Second inquiry: whether the conduct constituting the
felony was separate from the conduct necessary to cause the
homicide. If the underlying predicate felony does not have an
independent felonious purpose, the court must then undertake a
second step in the analysis, to determine whether the felony
17
merges with the killing as a matter of fact. See, e.g.,
Kilburn, 438 Mass. at 359 (armed assault in dwelling with intent
to commit felony capable of merging with resulting killing).
Not all felonies lacking an independent felonious purpose
necessarily merge with the resulting homicide. See id. at 358-
360. A felony does not merge with the killing if "the conduct
which constitutes the felony [is] 'separate from the acts of
personal violence which constitute a necessary part of the
homicide itself.'" Gunter, 427 Mass. at 272, quoting Quigley,
391 Mass at 466. Otherwise stated, the predicate felony does
not merge if the assaultive conduct that constituted the felony
was separate and distinct from the act of violence necessary to
complete the killing. See Kilburn, 438 Mass. at 358-359 (first
instance of armed assault in dwelling completed before assault
that killed victim). Because this is a fact-dependent inquiry,
we review this portion of the analysis "on a case-by-case basis
[and] with reference to specific facts." Id. at 359, quoting
Gunter, 427 Mass. at 275 n.15. See Commonwealth v. Scott, 472
Mass. 815, 820 (2015), quoting Kilburn, supra at 359 (second
step of analysis "defies categorical analysis" and requires
examination of particular facts of each case).
We have determined that armed assault in a dwelling, a
crime without an independent felonious purpose from the intent
to cause physical injury or death, may serve as the predicate
18
for felony-murder so long as the conduct that constitutes the
armed assault (the underlying felony) is separate and distinct
from the conduct necessary to kill the victim. Kilburn, 438
Mass. at 358-359. In the Kilburn case, the defendant, the
shooter's coventurer, was convicted of murder in the first
degree on a theory of felony-murder with armed assault in a
dwelling as the predicate felony. Id. at 358. We observed that
there were two discrete assaults. The first assault occurred
when one assailant opened the victim's apartment door,
brandished a firearm, and pushed the victim backward into the
apartment. Id. "After a short interlude, during which the
gunman ordered . . . the victim about the apartment, the gunman
shot the victim in the back of the head, thus violating [the
armed assault in a dwelling statute] a second time." Id. We
concluded that although the second assault (the fatal shooting)
merged with the killing, the first did not because the first
assault was completed when the gunman opened the door,
brandished a firearm, and pushed the victim backward. Kilburn,
supra at 358-359. Because the first violation of the armed
assault in a dwelling statute was accomplished by separate and
distinct acts from the conduct necessary to cause the killing,
the first assault did not merge with the killing and could serve
as the predicate for felony-murder. Id. at 359 (victim "died of
a gunshot wound; he did not die of fright"). Accord
19
Commonwealth v. Scott, 472 Mass. at 823-825 (no merger where
assailant's struggle with victim at front door constituted first
assault, and subsequent gunshot that killed victim was second
independent assault). Contrast Commonwealth v. Stokes, 460
Mass. 311, 314 n.8 (2011) (armed home invasion could not serve
as predicate felony because act of pointing gun at victim in
course of shooting him was not sufficiently separate from
shooting itself).
In sum, where the felony at issue does not have an
independent purpose from the intent to cause bodily injury or
death, the court must examine whether the act that constituted
the felony is separate and distinct from the act causing the
homicide. If the underlying felony was separate and distinct
from the homicide, the felony does not merge and may serve as
the predicate for felony-murder. In contrast, if the same act
accomplished both the felony and the killing, the felony merges
with the killing.
2. The motion for a new trial: whether aggravated
kidnapping implicates the merger doctrine. In this case, the
predicate crime of kidnapping required the Commonwealth to prove
beyond a reasonable doubt that the defendant, "without lawful
authority, forcibly or secretly confine[d] or imprison[ed]
another person within this commonwealth against his will."
G. L. c. 265, § 26, first par. Kidnapping itself is not a life
20
felony, however, and thus could not have served as the predicate
for a finding of felony-murder in the first degree. But
kidnapping becomes aggravated kidnapping, which is a life
felony, when the defendant commits the kidnapping, among other
things, "while armed with a firearm, rifle, shotgun, machine gun
or assault weapon," § 26, second par., or "while armed with a
dangerous weapon and inflicts serious bodily injury thereby upon
another person," § 26, third par. Neither form of aggravated
kidnapping implicates merger because the "essential element of
kidnapping is not the level of violence [or assaultive element]
but rather the defendant's forcible or secret confinement or
imprisonment of the victim against his will." Commonwealth v.
Oberle, 476 Mass. 539, 548 (2017), quoting Commonwealth v.
Robinson, 48 Mass. App. Ct. 329, 334 (1999). Given that the
jury here were instructed only on aggravated kidnapping under
the third paragraph of G. L. c. 265, § 26, the element that
enhanced kidnapping to a life felony (being armed with a
dangerous weapon and inflicting serious bodily injury) did not
negate the intent to commit the kidnapping that is the
substitute for the malice requirement of murder. The intent to
commit the kidnapping (confining or imprisoning another person
against his or her will), not the infliction of serious bodily
injury, is what substituted for the malice requirement of
murder. See Wade, 428 Mass. at 153. Because aggravated
21
kidnapping involves an intent independent from the killing,
neither form of aggravated kidnapping implicates the merger
doctrine.10 Accordingly, the judge's order allowing the motion
for new trial must be reversed.
3. Defendant's improper conviction of murder in the first
degree on a theory of felony-murder based on aggravated
kidnapping. As discussed supra, the Commonwealth relied on
aggravated kidnapping as the predicate felony to support the
defendant's conviction of murder in the first degree based on a
theory of felony-murder. The Commonwealth proved aggravated
kidnapping under G. L. c. 265, § 26, third par. (i.e.,
kidnapping "while armed with a dangerous weapon and inflict[ing]
serious bodily injury thereby upon another person"), as the
statute existed at the time of the defendant's trial in 2014.
However, this theory of aggravated kidnapping (G. L. c. 265,
§ 26, third par.) did not exist when the defendant committed the
killing in 1994. An amendment in 1998 added what are now the
second and third paragraphs of § 26. Compare G. L. c. 265,
§ 26, as amended through St. 1979, c. 465, § 1, with G. L.
c. 265, § 26, as amended by St. 1998, c. 180, § 63. Thus, it
was not until 1998 that either form of aggravated kidnapping
10Because the crime of aggravated kidnapping has an
independent felonious purpose from the intent to cause physical
injury or death, the merger doctrine is inapplicable and we need
not proceed to the second inquiry.
22
discussed herein first appeared in the statute. G. L. c. 265,
§ 26, as amended by St. 1998, c. 180, § 63. Simply stated, the
defendant's conviction of murder in the first degree was based
on a predicate felony that did not exist when the killing took
place in 1994. Kidnapping under G. L. c. 265, § 26, as it
existed in 1994, could not serve as the predicate for a murder
in the first degree conviction because kidnapping by itself,
i.e., absent any aggravated form, was not then and is not now a
life felony and carries a maximum sentence of only ten years in
State prison.11 See Commonwealth v. Licciardi, 387 Mass. 670,
673 n.1 (1982) (analyzing substantially similar version of G. L.
c. 265, § 26, predating inclusion of aggravated forms of
kidnapping in second and third paragraphs of statute).
We raised this concern on our own initiative, while the
Commonwealth's appeal from the order granting a new trial was
under advisement, and we asked the parties to brief it. The
Commonwealth concedes that the defendant's conviction of murder
in the first degree cannot stand. The defendant's conviction is
based on a predicate felony that did not exist when the
defendant committed the killing in 1994. Since the defendant
11The Commonwealth did not proceed, and on these facts
could not have proceeded, at trial on a theory that the
defendant kidnapped the victim "with intent to extort money or
other valuable[s]," which was an offense punishable by up to
life imprisonment at the time the offense was committed, see
G. L. c. 265, § 26, as amended through St. 1979, c. 465, § 1,
and which was retained in the current version of the statute.
23
committed the crime in 1994, applying G. L. c. 265, § 26, third
par., as it existed in 2014, would give ex post facto effect to
the subsequent law. See Commonwealth v. Cory, 454 Mass. 559,
564 (2009), quoting Commonwealth v. Bargeron, 402 Mass. 589, 590
(1988) ("An ex post facto law is . . . one that 'changes the
punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed'"). See also Johnson v.
United States, 529 U.S. 694, 699 (2000) (challenged law must
operate retroactively, i.e., it must apply to conduct completed
before its enactment, and it must raise penalty from whatever
law provided when defendant acted).
We also asked the parties to brief the question of how best
to dispose of the matter if we were to conclude, as we now do,
that the conviction of murder in the first degree cannot stand.
After careful consideration of their suggestions, we conclude
that the best course is to vacate the verdict of murder in the
first degree at this time, as if we had discovered the issue in
the course of considering the defendant's direct appeal pursuant
to G. L. c. 278, § 33E. It makes little sense, and would
require an unnecessary expenditure of time and resources, to
wait for the direct appeal to be briefed and argued before we
reach what the parties now agree is this inevitable result. We
thus remand the case to the trial judge, who is in the best
position to determine the appropriate next step. She may order
24
the entry of a finding of a lesser degree of guilt, i.e., murder
in the second degree based on the predicate felony of kidnapping
as it existed at the time of the homicide, if the record
supports it, or she may grant a new trial if that is necessary
and appropriate in the circumstances. Neither side will be
prejudiced by this approach. The defendant, who has not yet
briefed his direct appeal in this court, will be able to pursue
a direct appeal to the Appeals Court if the judge orders the
entry of a verdict of murder in the second degree, and the
Commonwealth may of course appeal to the Appeals Court if the
judge orders a new trial.
Conclusion. The order granting a new trial on the basis of
merger is reversed, and an order shall enter in the Superior
Court denying the motion on that ground. Further, as discussed,
we vacate the defendant's conviction of murder in the first
degree, because it was predicated on a theory of aggravated
kidnapping (G. L. c. 265, § 26, third par.) that did not exist
at the time of the homicide. We remand the case to the trial
judge to determine whether a finding of murder in the second
degree is supported by the record and should be entered, or
whether a new trial is necessary and appropriate in these
circumstances. The docket of the defendant's direct appeal in
this court will be closed, and each side will be free to proceed
25
in the Appeals Court with any appeal it may have from the
judge's order on remand.
So ordered.