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SJC-11097

                 COMMONWEALTH   vs.   KENSTON SCOTT.



       Plymouth.       March 2, 2015. - September 24, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Homicide. Felony-Murder Rule. Armed Home Invasion.       Practice,
     Criminal, Capital case, Postconviction relief,
     Interlocutory appeal, Double jeopardy.



     Indictments found and returned in the Superior Court
Department on March 30, 2007.

     The cases were tried before Richard J. Chin, J., and a
motion for postconviction relief, filed on June 5, 2012, was
heard by him.


     Chauncey B. Wood for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


    DUFFLY, J.     The only issue that is properly before us in

this interlocutory appeal, as we shall explain below, is whether

the evidence at the defendant's trial was sufficient to warrant

a finding of guilty of murder in the first degree based on a
                                                                    2


theory of felony-murder, with armed home invasion as the

predicate felony.    Specifically, the question is whether the

Commonwealth presented evidence that would warrant a finding

that the defendant committed two separate assaults, one to

support a conviction of armed home invasion and a separate and

distinct assault that constituted the homicide.    In the absence

of proof of two independent assaults, the evidence would not

support a conviction of felony-murder based on an armed home

invasion.   We hold that the Commonwealth presented sufficient

evidence to warrant a finding of two assaults.

     Procedural history.    The defendant was tried and convicted

in the Superior Court, in 2010, on charges (one count each) of

murder in the first degree, armed home invasion, and unlicensed

carrying of a firearm.1    The murder conviction was based on a

theory of felony-murder, with armed home invasion as the

predicate felony.2   The defendant was sentenced to the mandatory


     1
       The defendant was tried together with a codefendant, Jaime
Resende. Resende, like the defendant, was convicted of murder
in the first degree on a theory of felony-murder, with armed
home invasion as the predicate felony. Resende also was
convicted of armed home invasion and armed assault with intent
to rob. His conviction of armed home invasion was dismissed as
duplicative. At a subsequent retrial on the murder charge, he
was found not guilty. He is not a party to this appeal.
     2
       The jury also were given the option of finding armed
robbery as the underlying felony for the felony-murder
conviction. They did not make a finding one way or the other on
that option. On the verdict slip for the murder charge, they
placed check marks in the boxes for "guilty of murder in the
                                                                   3


term of life in prison without the possibility of parole for the

murder, and a concurrent term of from four and one-half to five

years for the firearm offense.   The armed home invasion

indictment was dismissed as duplicative.3

     The defendant's appeal from his convictions was entered

directly in this court in November, 2011, in accordance with

G. L. c. 278, § 33E.   In June, 2012, while his appeal was

pending, he filed in this court a "motion for postconviction

relief" that we remanded to the Superior Court for

consideration.   His motion was focused entirely on the murder

conviction and identified three bases for his claim that he was

entitled to relief from that conviction:    first, that the

evidence was insufficient to support the conviction,

specifically, that the conviction "was not supported by an

independent homicidal act"; second, that the jury should have



first degree," "in the commission of a life felony," and "armed
home invasion." They left blank the box for "armed robbery."
The defendant correctly concedes that this did not amount to an
acquittal on that theory. See Commonwealth v. Carlino, 449
Mass. 71, 76-80 (2007).
     3
       Immediately after the jury returned their verdicts and
were polled and excused, the Commonwealth moved for sentencing.
The judge indicated at the outset his intent to dismiss the
armed home invasion charge as duplicative in light of the
felony-murder conviction based on armed home invasion. See
Commonwealth v. Gunter, 427 Mass. 259, 275-276 (1998), S.C., 459
Mass. 480, cert. denied, 132 S. Ct. 218 (2011); Commonwealth v.
Raymond, 424 Mass. 382, 396-397 (1997), S.C., 450 Mass. 729
(2008).
                                                                    4


been instructed that, in order to find felony-murder, they were

required "to find beyond a reasonable doubt that the act

establishing the predicate felony was independent from the

homicidal act"; and, third, that his trial counsel was

ineffective because counsel's "ignorance of the merger

doctrine's relevance deprived him of an available and

substantial ground of defense."   He accordingly sought a finding

of not guilty on the felony-murder conviction or, in the

alternative, a new trial on the murder charge.4

     After an evidentiary hearing on the remanded motion, the

trial judge concluded that the evidence at trial was sufficient

to support a finding that there had been two separate and

distinct assaults, and therefore that the felony-murder

conviction was not legally deficient under the so-called merger

doctrine.   The judge agreed with the defendant, however, that

the jury had not been instructed adequately on the law of

felony-murder, specifically, that to convict the defendant of

felony-murder based on the armed home invasion, they were

required to find two separate and distinct assaults; in other


     4
       A motion for postconviction relief may, in these
circumstances, include both a request for a finding of not
guilty and a request for a new trial. See the second sentence
of Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979); and Mass.
R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See
also Commonwealth v. Gilbert, 447 Mass. 161, 166-167 (2006);
Commonwealth v. Keough, 385 Mass. 314, 316-318 (1982).
                                                                     5


words, they were not told that the act that caused the victim's

death needed to be separate and distinct from the act that

constituted the assault for purposes of the armed home invasion.

The judge therefore granted a new trial on the basis of the

absence of an appropriate jury instruction.

    Despite having been granted a new trial, the defendant

appeals from so much of the judge's ruling as determined that

the evidence at the first trial was sufficient to support a

finding of two separate and distinct assaults, and,

consequently, a felony-murder conviction.     He presses his claim

that he is entitled to a finding of not guilty on the

felony-murder charge.   The Commonwealth has not appealed from

the portion of the order that granted a new trial.

    In his brief on appeal, however, the defendant gives

relatively short shrift to the single issue that brings him back

before the court at this interlocutory juncture -- his challenge

to the sufficiency of the evidence for his murder conviction.

Instead, he devotes the bulk of his brief to other issues.    He

focuses primarily and at length on a pretrial order denying his

motion to suppress statements he made to the police.    He also

presses a request he made for an instruction concerning

identification that the judge declined to give at his first

trial.   Finally, he challenges an instruction that the judge

gave on accomplice liability.   Recognizing that none of these
                                                                   6


additional issues is properly before the court at this

interlocutory juncture, he nevertheless argues that we should

address them now "in the interest of judicial economy."

     Discussion.   We decline the defendant's invitation to

consider issues other than the sufficiency of the evidence at

the first trial to support his murder conviction.   As to that

limited issue, the defendant has a right under Massachusetts law

to appellate review before he is retried because, if the

evidence at the first trial was insufficient to support the

conviction, a retrial would be barred by principles of double

jeopardy.   See Neverson v. Commonwealth, 406 Mass. 174, 175-176

(1989), and cases cited.   See also Choy v. Commonwealth, 456

Mass. 146, 149-150, cert. denied, 562 U.S. 986 (2010).

Typically this type of issue arises when the first trial ends in

a mistrial, but we see no reason why the same principles should

not also apply here, where the defendant has been convicted and,

while his appeal is pending, he has been granted a new trial.5


     5
       In the typical situation, a defendant who has been tried
once and faces a retrial moves to dismiss the indictment before
retrial, claiming that the evidence at the first trial was
insufficient to warrant a conviction and that a retrial
therefore would impermissibly place the defendant in jeopardy
for a second time. If the judge denies the motion to dismiss,
the defendant may seek relief from that ruling from a single
justice of this court pursuant to G. L. c. 211, § 3. We have
said that the defendant has a right to have his or her double
jeopardy claim heard before the retrial. See Neverson v.
Commonwealth, 406 Mass. 174, 175-176 (1989); Berry v.
Commonwealth, 393 Mass. 793, 794, 797-798 (1985); Costarelli v.
                                                                   7


     That said, interlocutory review between trials to determine

the sufficiency of the evidence, in order to ensure that a

retrial would not violate double jeopardy principles, does not

encompass all other interlocutory issues that the defendant

raises.   The right to interlocutory review in these

circumstances exists strictly as a safeguard against double

jeopardy.   The other issues the defendant raises do not

implicate double jeopardy principles.   Nor is there any

"judicial efficiency" to be gained by encumbering the limited

interlocutory review afforded in these circumstances for double

jeopardy purposes with multiple other issues that may or may not

arise in the same way at the retrial and that, in any event, can

be adequately dealt with, if necessary, in the course of the

ordinary appellate review that will follow if the defendant is

convicted again.6,7




Commonwealth, 374 Mass. 677, 679, 682-683 (1978). See also
Creighton v. Commonwealth, 423 Mass. 1001 (1996). We are
satisfied that, in the unusual procedural circumstances of this
case, the defendant's motion for postconviction relief, to the
extent it sought a finding of not guilty, served essentially the
same purpose as a motion to dismiss in the typical situation.
     6
       In analogous circumstances (see note 5, supra), when a
single justice of this court is faced with a petition pursuant
to G. L. c. 211, § 3, the general practice has been to limit the
scope of the interlocutory review to the issues that raise
double jeopardy claims, and not to turn that limited review into
a vehicle for review of all other issues that arose at the first
trial.
                                                                    8


    We now turn to the merits of the sufficiency of the

evidence issue.   We begin with the elemental principle that, in

felony-murder prosecutions, "the conduct which constitutes the

felony must be 'separate from the acts of personal violence

which constitute a necessary part of the homicide itself.'"

Commonwealth v. Gunter, 427 Mass. 259, 272 (1998), S.C., 459

Mass. 480, cert. denied, 132 S. Ct. 218 (2011), quoting

Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert.

denied, 471 U.S. 1115 (1985).   See Model Jury Instructions on

Homicide 54 (2013) ("The act of violence that is an element of

the underlying felony may not be the same act that caused the

victim's death").   This requirement ensures that not every

assault that results in a death will serve as a basis for murder

in the first degree on the theory of felony-murder.

Commonwealth v. Kilburn, 438 Mass. 356, 359-360 (2003).     Gunter,

supra.   If an assault that is an element of an underlying felony


    7
       As stated, the primary issue the defendant argues on
appeal is a suppression issue. We note, however, that he did
not seek leave to pursue an interlocutory appeal of the
suppression ruling at the time it was made, and has not at any
time since then. See Mass. R. Crim. P. 15 (a) (2), as appearing
in 422 Mass. 1501 (1996). We note also that, before retrial, he
may seek to readdress that issue in the trial court, see
Commonwealth v. Richmond, 379 Mass. 557, 558 (1980) (stating
that judge at retrial has discretion to reconsider suppression
ruling made before first trial), and we are mindful of the
prosecutor's statement at oral argument that the judge has
indicated a willingness to allow the defendant to do so. These
considerations reinforce our view that it would be unnecessary
and inappropriate to consider the issue at this point.
                                                                   9


is not separate and distinct from the assault that results in

the death, then the assault is said to merge with the killing,

in which case the underlying felony cannot serve as a predicate

felony for purposes of the felony-murder doctrine.   Model Jury

Instructions on Homicide, supra at 53 n.121 ("Under the merger

doctrine, if the only felony committed was the assault upon the

victim which resulted in the victim's death, the assault merges

with the killing and cannot be relied on by the Commonwealth to

support felony-murder").8,9



     8
       Apart from the need for there to be sufficient evidence of
two separate assaults, the jury must also be instructed
correctly on the doctrine of merger and on the need for them to
find two separate assaults. See Commonwealth v. Bell, 460 Mass.
294, 302-303 (2011); Model Instructions on Homicide 53 n.121
(2013). See also Commonwealth v. Kilburn, 438 Mass. 356, 361
(2003). It was on this basis, i.e., the absence of an
instruction on merger, that the judge in this case granted the
defendant's motion for a new trial.
     9
       The underlying felony in this case, armed home invasion,
has the following elements: "that the defendant (1) 'knowingly
enter[ed] the dwelling place of another'; (2) 'knowing or having
reason to know that one or more persons [were] present within';
(3) 'while armed with a dangerous weapon'; and (4) 'use[d] force
or threaten[ed] the imminent use of force upon any person within
such dwelling place whether or not injury occur[ed], or
intentionally cause[d] any injury to any person within such
dwelling place.' G. L. c. 265, § 18C." Commonwealth v. Pagan,
440 Mass. 84, 92-93 (2003). For purposes of the merger
analysis, we are concerned with the fourth element. "[T]he
question is whether there was evidence presented that the
defendant used force, threatened the imminent use of force, or
intentionally injured someone in the [house], independent of the
[shooting] of the victim that ultimately caused [his] death."
Bell, 460 Mass. at 300.
                                                                  10


    "Whether a particular felony is sufficiently independent

from a killing to support a felony-murder conviction is a

question that defies categorical analysis; we therefore review

claims of merger on a 'case-by-case basis [and] with reference

to specific facts."   Kilburn, 438 Mass. at 359, quoting Gunter,

427 Mass. at 275 n.15.   See Commonwealth v. Bell, 460 Mass. 294,

300 (2011).   We thus turn to the specific facts of this case,

focusing mainly on the evidence of events immediately before and

during the home invasion and shooting.   Because we are examining

the legal sufficiency of the evidence, we apply the well-settled

and familiar Latimore standard; that is, viewing the evidence in

the light most favorable to the Commonwealth, we ask whether the

evidence and the inferences that reasonably could be drawn from

it were "of sufficient force to bring minds of ordinary

intelligence and sagacity to the persuasion of [guilt] beyond a

reasonable doubt."    Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979), and cases cited.   See Jackson v. Virginia, 443

U.S. 307, 319 (1979) (stating the standard as "whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt"

[emphasis in original]"), cited with approval in Latimore, supra

at 677-678.
                                                                    11


     The evidence in this case permitted a jury to find that the

defendant, his codefendant Jaime Resende, and Vernon Newbury

planned to rob a house in Brockton where they believed drugs and

money were available.    The house was owned by the victim, Nelson

Pina, who lived there with his girl friend, Julia Codling.     At

approximately 12:45 A.M. on November 17, 2006, two men arrived

at the house.10    The victim and Codling were in bed at the time.

On hearing the doorbell ring, they went to the front door, which

was near the kitchen.    Codling testified that she saw, through

the window, a young black man wearing a baseball hat standing on

the front porch.    Through the closed door, the man said that his

vehicle had broken down and asked to use the telephone to get

assistance.   Codling testified that she was suspicious and told

the victim not to open the door.    The victim got the couple's

cordless telephone, however, and their dog from the basement,

and told Codling to go back to the bedroom.    Codling went to her

son's bedroom.

     Codling again looked out a window and saw an automobile

parked outside with its hazard lights flashing and its hood

raised.   The vehicle looked new to her, and did not appear to be

broken down, which raised her suspicion.    She saw the man from


     10
       The evidence supported a finding that the two men were
the defendant and Resende. The defendant does not challenge the
sufficiency of the evidence to warrant such a finding.
                                                                   12


the porch walking toward the mailbox, holding the cordless

telephone.   Another man got out of the vehicle, donned a black

"hoodie," and opened the trunk.   Codling heard the man from the

porch say "he's here," which added to her suspicion, and saw him

return to the porch.   She then started back down the hall to the

front door, intending to tell the victim not to open the door.

     Before she reached the front door, Codling heard a struggle

at the door.   She then heard four gunshots.   She testified,

based on what she heard, that "[i]t was a struggle, like they

were fighting.   Like he was trying to close the door and he was

trying to push his way in. . . . Right after I heard the

struggle, I heard the shots right after."   The two men then fled

on foot.   Codling returned to the bedroom, hid under the bed,

and called the police on her cellular telephone.11

     When the police arrived at the scene, they observed the

automobile parked in front of the house with its hood raised and

hazard lights flashing.   The glass on the front storm door of

the house was broken, and the front door was open.    There were

bullet holes in the door.   The victim, who was not breathing,

     11
       A neighbor also testified about the events immediately
before and after the shooting. He stated that he had been
sitting on the front steps of his house, which was a few houses
away from the victim's house; saw an automobile parked outside
the victim's house, with the hazard lights flashing; heard
approximately seven gunshots; saw two men standing on the steps
of the victim's house, near the front door, firing into the
house; and then saw the men flee.
                                                                    13


was lying on the floor inside the house, with a .357 Magnum

firearm by his legs.   Ballistics evidence indicated that the

weapon had been fired once.    The medical examiner who conducted

the autopsy testified that the victim died from a single .32

caliber gunshot to his chest.

    In addition to the .32 caliber bullet taken from the

victim's body, police found a spent .32 caliber bullet in a

kitchen cabinet and three .32 caliber discharged casings at the

scene, all of which had been fired by a single weapon.    In

addition, there was a .22 caliber spent bullet near the front

door, another in the hallway, and three spent .22 caliber

bullets in the front door.    Seven spent .22 caliber shell

casings were found on the walkway outside the house, and bullet

furrows were found on the roof of the parked automobile,

indicating that shots had been fired from a weapon outside the

house, across the roof of the vehicle, toward the house.

    Based on this evidence, the motion judge, in a very

detailed and thoughtful memorandum of decision on the

defendant's motion for postconviction relief (and on Resende's

motion for a new trial, which raised numerous additional

issues), addressed the sufficiency of the evidence argument as

follows:

         "The question is whether, based on the evidence
    presented at trial, a rational trier of fact could have
    found beyond a reasonable doubt that the underlying felony,
                                                                  14


    armed home invasion, was independent of the homicide.
    Scott and Resende argue that there was no evidence that
    they used or threatened to use force against Pina in an act
    separate from the act of shooting and killing him. They
    contend that the evidence demonstrated a single assault in
    which the assailants forced their way through the door and
    simultaneously shot Pina. See Commonwealth v. Stokes, 460
    Mass. 311, 314 n.8 (2011) (armed home invasion could not be
    predicate for felony murder conviction where intruder
    pointed gun at victim through open door, then fired fatal
    shot within matter of seconds).

         "The only percipient witness, Codling, did not see the
    shooting but heard the events from a bedroom. She heard a
    struggle at the door, like Pina was trying to close the
    door and the assailant was trying to push his way in,
    immediately followed by several gunshots. The physical
    evidence at the scene revealed that the storm door was
    smashed out, with broken glass, the front door appeared to
    have several bullet holes, and the welcome mat was pushed
    over the threshold. There were numerous shell casings
    inside the house near Pina's body, which was located eight
    to twelve feet from the front door in the kitchen area.
    There was also a bullet hole in the center island cabinet
    in the kitchen, a bullet inside the cabinet, and a shell
    casing on the kitchen floor. There was evidence that Pina
    fired one shot from the .357 Magnum found between his legs.

         "Given this evidence, a rational jury could have found
    that there were two distinct assaults on Pina: one in
    which the assailant forced his way through the front door,
    followed by a firefight inside the house in which Pina was
    shot. Cf. Commonwealth v. Bell, 460 Mass. at 301-302
    . . . ; Commonwealth v. Kilburn, 438 Mass. at 359 . . . .
    Accordingly, the defendants have not established that their
    felony murder convictions were legally insufficient based
    on the merger doctrine."

    We agree with the judge's reasoning.   Codling's testimony,

reasonably understood in the light most favorable to the

Commonwealth, permitted a jury to find that there were two

separate and distinct assaults on the victim for purposes of a

merger analysis.   First, there was an assault -- in Codling's
                                                                   15


words, "a struggle, like they were fighting" -- as the man on

the porch attempted to force his way into the house and the

victim tried to close the door on him.   Shots were fired "right

after" that.   The second assault, the gunshot that killed the

victim, came after the initial struggle to enter the house and,

perhaps, after other shots had already been fired.   We also

agree with the judge's assessment that the ballistics evidence -

- the location of the spent bullets and casings -- further

supported a finding of two assaults, one at the door and one

inside the house after the intruder had forced his way in.12

     The sum and substance of the defendant's argument is that

his case is similar to Commonwealth v. Stokes, 460 Mass. 311

(2011) (Stokes II), in which we stated that the evidence was

insufficient to find two separate assaults for merger purposes.

The defendant in that case, like the defendant here, was

convicted of felony-murder in the first degree predicated on an

armed home invasion.   The named victim in both the murder

     12
       The judge made this observation in connection with his
determination that it was error not to give a suitable
instruction on merger. He also correctly recognized, however,
that after hearing the evidence a jury might find a single
(merged) assault, and for that reason he stated that he could
not "comfortably conclude that if properly instructed on the
need to find separate assaults beyond a reasonable doubt, the
jury nonetheless would have convicted the defendants of felony
murder." Put another way, he concluded that the evidence --
principally, Codling's testimony and the ballistics evidence --
warranted a finding of separate assaults, but that such a
finding was not inevitable.
                                                                      16


indictment and the armed home invasion indictment was Cecil

Smith, who, at the time of the shooting, was in the apartment of

his girl friend, Crystal Rego.     There was evidence that Rego

opened the door in response to a knock and saw two men.

Commonwealth v. Stokes, 440 Mass. 741, 742-743 (2004)

(Stokes I).13    Rego testified that the two men "were 'waving guns

. . . [b]ack and forth really fast' and pointing them at her."

Id. at 748.     Smith, who was sitting on a sofa at the time, was

fatally shot.    Id. at 742-743.   Rego testified that the incident

took "a matter of seconds."     Id. at 746 n.4.

     In Stokes II, we stated that the act of pointing a gun at

Smith in the course of shooting him was not separable from the

shooting itself for purposes of a merger analysis; it "was part

of the shooting that killed him."      Stokes II, supra at 314 n.8.

"Therefore, under the merger doctrine, the armed home invasion

with respect to Smith could not form a predicate felony for a

felony-murder conviction."     Id.14


     13
       Commonwealth v. Stokes, 440 Mass. 741 (2004) (Stokes I),
was the defendant's direct appeal from his convictions.
Commonwealth v. Stokes, 460 Mass. 311 (2011) (Stokes II), was
his appeal from the denial of a subsequent motion for a new
trial.
     14
       In Stokes II, for reasons that we need not explain in
detail here, it was the defendant, on appeal from the denial of
his motion for a new trial, who theorized that "the pointing of
guns at Smith . . . was separate from and did not merge with the
use of force that killed Smith." Stokes II, 460 Mass. at 314
n.8. The Commonwealth had not proceeded on that theory at trial
                                                                   17


    Contrary to the defendant's argument, Stokes II is

different from the situation here.   Although both cases involve

an entry and a shooting that occurred within a matter of

seconds, that is not dispositive.    In Stokes II, we said only

that the "pointing of guns" at Smith in the course of shooting

him would not have been sufficiently separate and distinct from

the shooting itself.   Here, by contrast, the evidence warranted

a finding that there was both a forcible assault on the victim

as the defendant attempted to push the door open and the victim

tried to keep it closed (one assault) and, after that, a

shooting of the victim (a separate assault).    Viewed favorably

to the Commonwealth, it was not merely the display of a weapon,

the pointing of the weapon at the victim, or the firing of the

fatal shot that constituted the initial assault; it was the

struggle between the assailant and the defendant -- the

assailant's application of physical force as he pushed his way

in while the victim tried to keep the door closed -- that

supported the armed home invasion conviction.    On these facts,

the case is more akin to those in which we have determined that

an armed home invasion and an ensuing homicide were sufficiently

independent under the merger doctrine to support a conviction of

felony-murder.   See, e.g., Bell, 460 Mass. at 299-303 (finding

no merger where defendant came "crashing through the window,"

"moved at a rapid pace" toward occupants, sprayed gasoline "as
                                                                   18


he approached in a manner that reasonably could be characterized

as threatening," and then ignited fire that killed victim);

Kilburn, 438 Mass. at 358-360 (finding no merger where victim

opened door, and defendant "immediately brandished a gun and

pushed the victim backward" and fatally shot victim "[a]fter a

short interlude").

    Finally, we note the defendant's contention, made in a

letter filed without leave of court after the briefing was

complete, that he may not be retried on a felony-murder theory

with armed robbery as the predicate felony.   That claim was not

part of his motion for postconviction relief; is therefore not

properly before us; and, given our conclusion that the defendant

may be retried on the felony-murder charge, need not be resolved

at this time.   See Stokes II, 460 Mass. at 316 & n.10.   The

defendant raised the subject of armed robbery as a predicate

felony for the first time in his reply brief, in which he

conceded that the Commonwealth could proceed with the murder

prosecution on a felony-murder theory with armed robbery as the

predicate.   In his subsequent letter, he reversed course and

asserted that there had been no evidence that he had in fact

taken anything of value from the victim; that he therefore could

not be convicted of armed robbery; that at most he could have

been convicted on attempted armed robbery; that pursuant to

G. L. c. 274, § 6, attempt crimes are not punishable by life in
                                                                 19


prison; and therefore that his attempted armed robbery could not

support a conviction of felony-murder in the first degree.15

     We address the point only to say that a prosecution for

murder in the first degree on a theory of felony-murder can be

premised on a killing that occurs "in the commission or

attempted commission of a crime punishable with . . .

imprisonment for life."   G. L. c. 265, § 1 (emphasis added).

The predicate felony asserted by the Commonwealth in this case

was armed robbery, not attempted armed robbery.   If, at the

retrial, the Commonwealth adduces sufficient evidence to warrant

a finding of armed robbery (a life felony pursuant to G. L.

c. 265, § 17), then the jury may return a verdict of felony-

murder in the first degree based on a killing that occurred in

the attempted commission of that crime, even if they find that

the robbery was not completed.   If the Commonwealth does not

adduce sufficient evidence to warrant a finding of armed




     15
       In his opening brief, the defendant asked the court to
order the entry of a finding of not guilty based on his argument
that, as a result of merger, the armed home invasion could not
support the felony-murder conviction. He said nothing about the
armed robbery alternative. In his reply brief, he acknowledged
that the jury could have (albeit did not, see note 2, supra)
find felony-murder based on an armed robbery, and therefore
stated that he "agree[d] with the Commonwealth that it would be
inappropriate to enter a required finding of not guilty on the
felony murder count." In his subsequent letter, he returned to
the position that he was "entitled to . . . the entry of a
required finding of not guilty."
                                                                  20


robbery, a felony-murder charge obviously could not be put to

the jury on the basis of armed robbery as the predicate felony.

    Conclusion.   For the reasons stated, the judge's order

denying the request for a finding of not guilty on the charge of

murder in the first degree, with armed home invasion as the

predicate felony, is affirmed.

                                   So ordered.
