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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.
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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.
