State of Maryland v. Derrell Johnson, No. 53, September Term, 2014

FELONY MURDER – PREDICATE FELONY – MERGER FOR SENTENCING
PURPOSES – REQUIRED EVIDENCE TEST – RULE OF LENITY – Court of
Appeals held that, where defendant is convicted of felony murder and multiple predicate
felonies, only one predicate felony conviction merges for sentencing purposes with felony
murder conviction; and, absent unambiguous designation that trier of fact intended specific
felony to serve as predicate felony, conviction for felony with greatest maximum sentence
merges for sentencing purposes.
Circuit Court for Baltimore City
Case Nos. 110169071–110169077

Argued: March 6, 2015
                                         IN THE COURT OF APPEALS

                                              OF MARYLAND

                                                   No. 53

                                             September Term, 2014
                                   ______________________________________

                                           STATE OF MARYLAND

                                                      v.

                                             DERRELL JOHNSON
                                   ______________________________________

                                             Barbera, C.J.
                                             Harrell
                                             Battaglia
                                             Greene
                                             Adkins
                                             McDonald
                                             Watts,

                                                   JJ.
                                   ______________________________________

                                              Opinion by Watts, J.
                                   ______________________________________

                                             Filed: March 27, 2015
       We decide whether the convictions for one or all predicate felonies merge for

sentencing purposes with a felony murder conviction1 where a defendant is convicted of

felony murder and multiple predicate felonies.

       We hold that, where a defendant is convicted of felony murder and multiple

predicate felonies, only one predicate felony conviction merges for sentencing purposes

with the felony murder conviction; and, absent an unambiguous designation that the trier

of fact intended a specific felony to serve as the predicate felony, the conviction for the

felony with the greatest maximum sentence merges for sentencing purposes.

                                     BACKGROUND

       The State, Petitioner, charged Derrell Johnson (“Johnson”), Respondent, and three

other people with various crimes, including first-degree murder, kidnapping, robbery with

a dangerous weapon, use of a handgun in the commission of a crime of violence or felony,

and unlawfully wearing, carrying, or transporting a handgun. In the Circuit Court for

Baltimore City (“the circuit court”), a jury tried Johnson and his three co-defendants. At

trial, the State’s theory of the case was that, on April 21, 2009, Johnson, the three co-

defendants, and possibly another person kidnapped Qonta Charles Waddell (“Waddell”),

put Waddell in a truck, and tried to get money from him. While the truck was parked in an


       1
         Felony murder is first-degree murder. See Md. Code Ann., Crim. Law (2002, 2012
Repl. Vol.) (“CR”) § 2-201(a)(4) (“A murder is in the first degree if it is[] . . . committed
in the perpetration of or an attempt to perpetrate” arson, barn-burning, burglary, carjacking,
prison escape, kidnapping, mayhem, rape, robbery, sexual offense, sodomy, or
manufacture or possession of a destructive device). Thus, the phrase “predicate felony”
refers to one of the twelve enumerated felonies set forth in CR § 2-201(a)(4). For brevity,
we shall refer to the crime as “felony murder” instead of “first-degree felony murder.”
alley in the 3100 block of Windsor Avenue, Waddell attempted to escape, and one of

Johnson’s co-defendants shot and killed Waddell. The jury convicted Johnson of, among

other crimes, felony murder, kidnapping, and robbery.2

       On January 18, 2012, the circuit court sentenced Johnson, in relevant part, to life

imprisonment for felony murder, twenty years’ imprisonment concurrent for kidnapping,

and ten years’ imprisonment concurrent for robbery.3         Johnson appealed and, in an

unreported opinion, the Court of Special Appeals vacated the sentences for the convictions

for kidnapping and robbery, determining that the rule of lenity required merger for

sentencing purposes of the convictions for kidnapping and robbery with the felony murder

conviction because it was unclear which felony was the predicate felony for the felony

murder conviction. The Court of Special Appeals also vacated the sentences for the

convictions for conspiracy to commit kidnapping and conspiracy to commit robbery with

a dangerous weapon, and affirmed in all other respects.


       2
          The jury also convicted Johnson of: use of a handgun in the commission of a felony;
conspiracy to commit murder; conspiracy to commit kidnapping; conspiracy to commit
robbery with a dangerous weapon; and false imprisonment. The jury acquitted Johnson of:
first-degree premeditated murder; two counts of use of a handgun in the commission of a
crime of violence; three counts of unlawfully wearing, carrying, or transporting a handgun;
and robbery with a dangerous weapon.
        As to an alleged victim named Valerie Boone, the jury acquitted Johnson of: first-
degree assault; use of a handgun in the commission of a crime of violence; unlawfully
wearing, carrying, or transporting a handgun; and false imprisonment.
        3
          As to the other convictions, the circuit court sentenced Johnson to twenty years’
imprisonment consecutive, the first five years without parole, for use of a handgun in the
commission of a felony, life imprisonment concurrent for conspiracy to commit murder,
fifteen years’ imprisonment concurrent for conspiracy to commit kidnapping, ten years’
imprisonment consecutive for conspiracy to commit robbery with a dangerous weapon, and
fifteen years’ imprisonment concurrent for false imprisonment. In total, Johnson was
sentenced to life imprisonment plus thirty years.

                                            -2-
      The State petitioned for a writ of certiorari, raising one issue: “Did the Court of

Special Appeals err in merging both the kidnapping and robbery sentences into the felony

murder sentence, rather than merging only one of them?” On August 27, 2014, we granted

the petition. See State v. Johnson, 439 Md. 694, 98 A.3d 233 (2014).

                                    DISCUSSION

      The State contends that the Court of Special Appeals erred in merging for sentencing

purposes the kidnapping and robbery convictions with the felony murder conviction. The

State argues that, because Maryland law requires one predicate felony for a felony murder

conviction, where a defendant is convicted of multiple predicate felonies, only one

predicate felony conviction—not all of them—merges for sentencing purposes with the

felony murder conviction. The State asserts that the conviction for the predicate felony

with the greatest maximum sentence (here, kidnapping) merges for sentencing purposes.

      Johnson responds that the Court of Special Appeals was correct in holding that the

kidnapping and robbery convictions both merged for sentencing purposes with the felony

murder conviction. Johnson contends that it is unclear whether kidnapping, robbery, or

both crimes formed the basis for the felony murder conviction, and thus, the required

evidence test and Maryland case law require that any ambiguity be resolved in his favor

and that the convictions for both kidnapping and robbery merge for sentencing purposes

with the felony murder conviction. In addition, Johnson argues that the rule of lenity

requires that the convictions for both kidnapping and robbery merge for sentencing

purposes with the felony murder conviction, and asserts that the General Assembly has not

indicated an intent to permit separate sentences where felony murder is based on multiple


                                          -3-
predicate felonies. Johnson agrees with the State that, should this Court conclude that the

conviction for one predicate felony merges for sentencing purposes with the felony murder

conviction, then the conviction for the predicate felony with the greatest maximum

sentence (here, kidnapping) should merge for sentencing purposes.

       In a reply brief, the State contends that the General Assembly has expressed the

view that, although multiple crimes may be predicate felonies, only one predicate felony is

required for a felony murder conviction, and thus separate sentences are permissible for

additional predicate felonies.

       The Fifth Amendment to the United States Constitution provides, in relevant part:

“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or

limb[.]”4 “The Double Jeopardy Clause protects a criminal defendant against . . . multiple

punishment for the same offense.” Brown v. State, 311 Md. 426, 431, 535 A.2d 485, 487

(1988) (citations omitted). “Multiple punishment challenges generally arise” where, for

example, a statute “proscribes designated conduct, and the question is whether the

defendant’s conduct constitutes more than one violation of this proscription.” Id. at 431,

535 A.2d at 487 (citation omitted).

       Recently, in Brooks v. State, 439 Md. 698, 737, 98 A.3d 236, 258 (2014), we

discussed merger for sentencing purposes, explaining:

              The merger of convictions for purposes of sentencing derives from the

       4
       The Double Jeopardy Clause applies to the States through the Fourteenth
Amendment. See Hubbard v. State, 395 Md. 73, 88, 909 A.2d 270, 279 (2006) (“In Benton
v. Maryland, 395 U.S. 784, [796] (1969), the United States Supreme Court held that the
Double Jeopardy Clause . . . was applicable to state criminal proceedings through the
Fourteenth Amendment.”).

                                            -4-
       protection against double jeopardy afforded by the Fifth Amendment of the
       federal Constitution and by Maryland common law. Merger protects a
       convicted defendant from multiple punishments for the same offense.
       Sentences for two convictions must be merged when: (1) the convictions are
       based on the same act or acts, and (2) under the required evidence test, the
       two offenses are deemed to be the same, or one offense is deemed to be the
       lesser included offense of the other.

(Citations omitted). As to the required evidence test, in Nicolas v. State, 426 Md. 385,

401-02, 44 A.3d 396, 405-06 (2012), we stated:

                The required evidence test focuses upon the elements of each offense;
       if all of the elements of one offense are included in the other offense, so that
       only the latter offense contains a distinct element or distinct elements, the
       former merges into the latter. Stated another way, the required evidence is
       that which is minimally necessary to secure a conviction for each offense. If
       each offense requires proof of a fact which the other does not, or in other
       words, if each offense contains an element which the other does not, there is
       no merger under the required evidence test even though both offenses are
       based upon the same act or acts. But, where only one offense requires proof
       of an additional fact, so that all elements of one offense are present in the
       other, and where both offenses are based on the same act or acts[,] merger
       follows.

(Citations and ellipses omitted); see also McGrath v. State, 356 Md. 20, 24, 736 A.2d 1067,

1069 (1999) (The required evidence test “is a long-standing rule of law to determine

whether one offense is included within another when both are based on the same act or

acts.” (Citation omitted)).

       The rule of lenity provides another standard for determining merger for sentencing

purposes. See McGrath, 356 Md. at 24-25, 736 A.2d at 1069 (“[T]he required evidence

test is not the exclusive standard under Maryland law for determining questions of merger,

and even where two offenses are separate under the required evidence test, there still may

be a merger for sentencing purposes based on considerations such as the rule of lenity[.]”



                                            -5-
(Citation and internal quotation marks omitted)). “The rule of lenity, applicable to statutory

offenses only, provides that where there is no indication that the [General Assembly]

intended multiple punishments for the same act, a court will not impose multiple

punishments but will, for sentencing purposes, merge one offense into the other.” Id. at

25, 736 A.2d at 1069 (citations omitted). “The rule of lenity allows [a court] to avoid

interpreting a criminal statute so as to increase the penalty that it places on an individual

when such an interpretation can be based on no more than a guess as to what [the General

Assembly] intended.” Khalifa v. State, 382 Md. 400, 434, 855 A.2d 1175, 1194 (2004)

(citation, internal quotation marks, ellipsis, and some brackets omitted). Recently, in

Oglesby v. State, ___ Md. ___, ___ A.3d ___, No. 23, Sept. Term, 2014, 2015 WL 735175,

at *3 (Feb. 23, 2015), we explained the rule of lenity as follows:

               The “rule of lenity” is not a rule in the usual sense, but an aid for
       dealing with ambiguity in a criminal statute. Under the rule of lenity, a court
       confronted with an otherwise unresolvable ambiguity in a criminal statute
       that allows for two possible interpretations of the statute will opt for the
       construction that favors the defendant. For a court construing a statute, the
       rule of lenity is not a means for determining—or defeating—legislative
       intent. Rather, it is a tie-goes-to-the-runner device that the court may turn to
       when it despairs of fathoming how the General Assembly intended that the
       statute be applied in the particular circumstances. It is a tool of last resort, to
       be rarely deployed and applied only when all other tools of statutory
       construction fail to resolve an ambiguity.

(Citation omitted).

       In Maryland, first-degree murder is proven by showing, among other things,

“deliberation, wil[l]fulness and premeditation (premeditated murder), or by showing a

homicide committed in the perpetration, or attempted perpetration, of one of the

enumerated felonies (felony murder).” Ross v. State, 308 Md. 337, 341-42, 519 A.2d 735,


                                              -6-
737 (1987). As to felony murder, Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.)

(“CR”) § 2-201(a)(4) provides, in pertinent part:

       A murder is in the first degree if it is . . . committed in the perpetration of or
       an attempt to perpetrate: . . . (vi) kidnapping under § 3-502 or § 3-503(a)(2)
       of this article; . . . (ix) robbery under § 3-402 or § 3-403 of this article; . . . or
       (xii) a violation of § 4-503 of this article concerning destructive devices.

(Paragraph breaks omitted). In Newton v. State, 280 Md. 260, 262-63, 268, 373 A.2d 262,

264, 266 (1977), this Court addressed merger for sentencing purposes in the context of a

conviction for felony murder and a conviction for a predicate felony (attempted robbery),

and held that, under “the required evidence test, . . . the felony murder and the underlying

felony must be deemed the same for double jeopardy purposes.” In so concluding, we

explained:

       [U]nder [CR § 2-201’s predecessor], murder committed in the perpetration
       of certain enumerated felonies, including attempted robbery, is first degree
       murder. . . . By proving every element of the underlying felony, the element
       of malice necessary for murder is established. And having established
       murder by proving a homicide during the perpetration or attempted
       perpetration of a felony, [CR § 2-201’s predecessor] provides that the murder
       shall be murder in the first degree. . . .

              Therefore, to secure a conviction for first degree murder under the
       felony murder doctrine, the State is required to prove the underlying felony
       and the death occurring in the perpetration of the felony. The felony is an
       essential ingredient of the murder conviction. The only additional fact
       necessary to secure the first degree murder conviction, which is not necessary
       to secure a conviction for the underlying felony, is proof of the death. The
       evidence required to secure a first degree murder conviction is, absent the
       proof of death, the same evidence required to establish the underlying felony.
       Therefore, as only one offense requires proof of a fact which the other does
       not, under the required evidence test the underlying felony and the murder
       merge.

Id. at 268-69, 373 A.2d at 266-67 (citations omitted). See also Roary v. State, 385 Md.



                                               -7-
217, 232 n.14, 867 A.2d 1095, 1103 n.14 (2005) (“[I]n the case of felony-murder, the

underlying felony would merge into the greater offense for sentencing purposes” under

“Maryland merger law and the required evidence test[.]” (Citing Newton, 280 Md. at 268,

373 A.2d at 266)); Fisher v. State, 367 Md. 218, 286, 786 A.2d 706, 746 (2001) (“[A]s

only one offense (murder) requires proof of a fact that the other (the underlying felony)

does not, under the required evidence test[,] the underlying felony and the murder merge.”

(Citing Newton, 280 Md. at 269, 373 A.2d at 267)).

       Here, we hold that, where a defendant is convicted of felony murder and multiple

predicate felonies, only one conviction for a predicate felony merges for sentencing

purposes with the felony murder conviction, and, absent an unambiguous indication that

the trier of fact intended otherwise, the conviction for the predicate felony with the greatest

maximum sentence merges for sentencing purposes.

       Both CR § 2-201(a)(4) and our case law make clear that only one predicate felony

is required to support a felony murder conviction. CR § 2-201(a)(4) provides that first-

degree murder occurs if it is “committed in the perpetration of or an attempt to perpetrate”

one of the twelve enumerated felonies. Significantly, the enumerated felonies are separated

by the key word “or,” which appears between the last two felonies in the list. Stated

otherwise, CR § 2-201(a)(4)’s plain language requires only one predicate felony; CR § 2-

201(a)(4) does not require multiple predicate felonies (e.g., felony A and felony B) to

support a felony murder conviction. In accordance with CR § 2-201(a)(4)’s plain language,

we have held that a felony murder conviction need only rest upon one predicate felony.

See, e.g., Ross, 308 Md. at 341-42, 519 A.2d at 737 (“[A] conviction of first degree murder


                                             -8-
may be proved . . . by showing a homicide committed in the perpetration, or attempted

perpetration, of one of the enumerated felonies (felony murder).” (Emphasis added));

Newton, 280 Md. at 269, 373 A.2d at 267 (“[T]o secure a conviction for first degree murder

under the felony murder doctrine, the State is required to prove the underlying felony and

the death occurring in the perpetration of the felony.” (Emphasis added)).

       It is evident that, where there is only one predicate felony, application of the required

evidence test results only in merger for sentencing purposes of the conviction for the

predicate felony with the felony murder conviction. Indeed, in Nicolas, 426 Md. at 401-

02, 44 A.2d at 405-06, we explained that, in applying the required evidence test, our focus

is on “the elements of each offense[,]” and “where only one offense requires proof of an

additional fact, so that all elements of one offense are present in the other, and where both

offenses are based on the same act or acts[,] merger follows.” (Citation omitted). As to

felony murder, in Newton, we explained that, in applying the required evidence test, the

elements of felony murder and the elements of a predicate felony are identical, i.e., all

elements of one crime are present in the other, with felony murder requiring proof of one

additional fact—death. See 280 Md. at 269, 373 A.2d at 267 (“The felony is an essential

ingredient of the murder conviction. The only additional circumstance necessary to secure

the first degree murder conviction, which is not necessary to secure a conviction for the

underlying felony, is proof of the death. The evidence required to secure a first degree

murder conviction is, absent the proof of death, the same evidence required to establish the

underlying felony.”).

       Because only one predicate felony is required to support a felony murder conviction,


                                             -9-
once the State proves a predicate felony and the death of the victim as a result of that felony,

the crime of felony murder is complete, and, for the required evidence test’s purposes, all

of felony murder’s elements have been satisfied such that the elements of any additional

predicate felonies would be redundant. In other words, once one merger for sentencing

purposes occurs, as to felony murder and one predicate felony, the elements of any

additional predicate felonies are no longer required elements of felony murder. For the

required evidence test’s purposes, the pairing of the conviction for one predicate felony

with the felony murder conviction leaves no room for a pairing with any additional

predicate felonies.5    In sum, once the conviction for one predicate felony merges,

application of the required evidence test does not result in further merger of convictions

for other predicate felonies.6


       5
       The Honorable Charles E. Moylan, Jr. reached the same conclusion in his treatise
on criminal homicide, explaining:

       [I]f a felony-murder were charged alleging two underlying felonies and if
       verdicts of guilty were returned on the felony-murder and on both of the
       underlying felonies, one of the two felonies would self-evidently be
       superfluous to the murder conviction, to wit, not a required element.

Charles E. Moylan, Jr., Criminal Homicide Law § 5.6, at 125-26 (2002).
       6
         Johnson’s reliance on Nicolas, 426 Md. 385, 44 A.3d 396, Nightingale v. State,
312 Md. 699, 542 A.2d 373 (1988), and Snowden v. State, 321 Md. 612, 583 A.2d 1056
(1991) is misplaced. Although each case involved merger for sentencing purposes, none
of the cases addressed merger in the context of felony murder and a predicate felony, and,
in any event, each case is otherwise distinguishable. In Snowden, 321 Md. at 614, 583
A.2d at 1057, the offenses at issue were assault and robbery; we were not tasked with
addressing whether multiple convictions merged for sentencing purposes with another
conviction. In Nightingale, 312 Md. at 701, 542 A.2d at 374, the crimes at issue were child
abuse, second-degree sexual offense, third-degree sexual offense, and fourth-degree sexual
offense. Although, as to one defendant, we merged convictions for second-degree sexual


                                             - 10 -
       Similarly, applying the rule of lenity does not result in the merger of more than one

predicate felony with a felony murder conviction. The rule of lenity is simply “an aid for

dealing with ambiguity in a criminal statute[,]” “a tool of last resort” that is applied only

where a court “is confronted with an otherwise unresolvable ambiguity in a criminal

statute[.]” Oglesby, 2015 WL 735175, at *3. As discussed above, CR § 2-201(a)(4) is not

ambiguous—CR § 2-201(a)(4)’s plain language demonstrates that only one predicate

felony is required to support a felony murder conviction, and, accordingly, only one




offense, third-degree sexual offense, and fourth-degree sexual offense with child abuse, see
id. at 708, 542 A.2d at 377, we noted that all of the sexual offenses shared “a common
element: that the activity be for the sexual arousal, gratification or abuse of the actor or the
victim[,]” id. at 703-04, 542 A.2d at 375. And, in Nicolas, 426 Md. at 399-400, 44 A.3d
at 404, we merged for sentencing purposes two convictions for second-degree assault with
a conviction for resisting arrest. Id. at 400, 44 A.3d at 404. Significantly, however, in
Nicolas, the two convictions that merged were the same crime—second-degree assault.
Here, unlike in Snowden, we are faced with merger of two convictions, not one conviction,
into a third conviction. And, although Nightingale and Nicolas involved merger of multiple
convictions into another conviction, the convictions that merged were either the same crime
or varying degrees of one crime that shared a common element. Here, kidnapping and
robbery are separate and distinct crimes, and the two crimes are not varying degrees of the
same crime and do not share a common element. Compare State v. Stouffer, 352 Md. 97,
105, 721 A.2d 207, 211 (1998) (“Kidnapping is a statutory crime in Maryland. [The
statute] makes it a felony to forcibly or fraudulently carry or cause ‘any person’ to be
carried out of or within Maryland with the intent to have the victim carried or concealed in
or out of the State.”), with Metheny v. State, 359 Md. 576, 605, 755 A.2d 1088, 1104
(2000) (“Robbery is the felonious taking and carrying away of the personal property of
another from his person by the use of violence or by putting in fear.” (Citation and internal
quotation marks omitted)).
        We are likewise unpersuaded by Johnson’s reliance on a concurring and dissenting
opinion in Fisher v. State, 367 Md. 218, 282-93, 786 A.2d 706, 744-50 (2001) (Bloom, J.,
concurring and dissenting). Merger was not at issue in the case, and was not addressed in
the majority opinion. See id. at 263 n.14, 786 A.2d at 733 n.14 (“Petitioners have not made
any alternative argument that if we were to hold that second degree felony murder may be
predicated on the child abuse in this case, the sentences for child abuse would merge into
the sentence for second degree murder.”).

                                             - 11 -
conviction for a predicate felony will merge for sentencing purposes with the felony murder

conviction. It is correct that CR § 2-201(a)(4) does not state that separate sentences may

be imposed for the predicate felonies. We hasten to point out, however, that CR § 2-

201(a)(4) concerns only felony murder; the permissible sentences for the enumerated

predicate felonies are found elsewhere in the Criminal Law Article. The absence of

language in CR § 2-201(a)(4) explicitly authorizing separate sentences for the predicate

felonies does not mean that CR § 2-201(a)(4) is ambiguous such that we must avail

ourselves of the rule of lenity.

       Having concluded that, under the required evidence test, a conviction for only one

predicate felony merges for sentencing purposes with the felony murder conviction, and

that applying the rule of lenity does not result in merger of additional convictions for

predicate felonies, we turn to determining which predicate felony merges. We conclude,

in agreement with the State—and as asserted by Johnson in the event we hold as we do—

that, in the absence of an unambiguous designation by the trier of fact, the predicate felony

with the greatest maximum sentence merges for sentencing purposes with the felony

murder conviction, and the defendant may be separately sentenced for any remaining

predicate felonies.7 This rule is straightforward and provides the defendant with the benefit


       7
        We are unpersuaded by the parties’ reliance on cases from other jurisdictions.
Cases from other jurisdictions, although perhaps persuasive, are not binding. And, in any
event, the cases simply demonstrate that other jurisdictions have adopted varying
approaches when faced with the same issue. See, e.g., Harling v. United States, 460 A.2d
571, 573-74 (D.C. 1983) (“[W]e agree that . . . consecutive sentences cannot be imposed
for felony murder and the underlying felonies. . . . [U]pon remand[, the trial court] is to
vacate either the conviction for felony murder or the convictions for the underlying


                                           - 12 -
of merger of the predicate felony with the greatest maximum sentence.8

       Applying this rule to the instant case, we note that, under CR § 3-502(b), the

maximum sentence for kidnapping is thirty years’ imprisonment, and, under CR § 3-

402(b), the maximum sentence for robbery is fifteen years’ imprisonment; thus, kidnapping

carries the greater maximum sentence. Accordingly, the conviction for kidnapping—the

crime with the greater maximum sentence—merges for sentencing purposes with the

felony murder conviction, and the sentence for robbery shall remain as imposed by the

circuit court.


                                   JUDGMENT OF THE COURT OF SPECIAL
                                   APPEALS REVERSED INSOFAR AS THAT
                                   COURT VACATED THE SENTENCE FOR
                                   ROBBERY. JUDGMENT OF THE COURT OF
                                   SPECIAL APPEALS AFFIRMED IN ALL OTHER
                                   RESPECTS. RESPONDENT TO PAY COSTS.

felonies.”); Thompson v. State, 426 S.E.2d 895, 897 (Ga. 1993) (“[W]here it is unclear
which of two or more felonies is the underlying felony for a felony murder conviction, the
trial court must merge the most severe (in terms of potential punishment).”); State v. Hill,
868 A.2d 290, 300 (N.J. 2005) (“We [] hold that there is a compelling need for the use of
special verdict forms . . . for the jury to designate which felony or felonies constitute the
predicate crime for a felony murder conviction. If the jury designates more than one felony
as the predicate for felony murder, the trial court at sentencing is to merge only the
predicate felony that set in motion the chain of events leading to the murder—the ‘first-in-
time’ predicate felony—into the felony murder conviction.” (Citation, brackets, and some
internal quotation marks omitted)).
        8
          We note that our holding is consistent with Judge Moylan’s view on the matter:

       If the fact finder failed so to designate [which felony served as the basis for
       the felony murder conviction], the sentencing judge should, under the rule of
       lenity, give the defendant the benefit of the doubt, merging the felony with
       the greater possible sentence and leaving as the basis for separate punishment
       the one with the lesser possible sentence.

Moylan, Criminal Homicide Law, § 5.6 at 126.

                                           - 13 -
