In Commonwealth v. Scott, (September 24, 2015) the SJC affirmed the judge’s rejection of the defendant’s argument in a motion for new  trial, that the evidence at the trial was insufficient to support the defendant’s conviction of first-degree murder on a theory of felony‑murder, with armed home invasion as the predicate felony. The relevant evidence was as follows. The defendant, his codefendant (Resende), and a third man “planned to rob a house in Brockton where they believed drugs and money were available. The house was owned by the victim, … who lived there with his girl friend” (Codling). On the date in question, the defendant and Resendes drove to the house and the defendant rang the doorbell. The victim answered the doorbell and a struggle ensued at the door. Codling, the only percipient witness, did not see the struggle, but she heard it. “She then heard four gunshots,” after which the defendant and Resendes fled. When the police arrived, they found “[t]he victim, who was not breathing, … 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 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.”

The defendant’s appeal presented the question “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.” That is because “under the so-called merger doctrine,” “if an assault that is an element of an underlying felony 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.” The SJC held that the evidence set forth above “permitted the jury to find that there were two separate and distinct assaults on the victim for purposes of a merger analysis.” “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).”

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