Lastarandre BELL. SJC-10394. December 10, 2010. - August 1, 2011.
Homicide. Armed Home Invasion. Burning a Dwelling House. Constitutional Law,
Assistance of counsel.
Felony-Murder Rule. Practice, Criminal,
Assistance of counsel, Empanelment of jury,Voir dire, Postconviction relief, Capital case, Instructions to jury.
Jury and Jurors.
INDICTMENTS found and returned in the Superior Court Department on February 13, 2007. The cases were tried before
Cornelius J. Moriarty, II,
J., and a motion for postconviction relief,filed on June 23, 2009, was heard by him.
Joseph A. Hanofee
for the defendant.
Katherine E. McMahon,
Assistant District Attorney, for the Commonwealth. Present: Ireland, Spina, Cordy, Botsford, Gants, & Duffly, JJ. BOTSFORD, J. A Superior Court jury convicted the defendant Lastarandre Bell of murder in the first degreeof Julie Ann Nieves on a theory of felony-murder. [FN1] The defendant also was convicted of armed home invasion, arson, and two charges of violation of an abuse prevention order. Thedefendant appeals both from his convictions and from the denial of his motion for a new trial.He claims that (1) the merger doctrine renders legally impossible his felony-murder convictionbecause the underlying felony and the homicide share the same conduct, and defense counselwas ineffective for not raising the issue; and (2) defense counsel was ineffective as well inseveral other respects, including the manner in which he investigated and tried the case. Thedefendant argues also that relief is warranted pursuant to G.L. c. 278, § 33E. For reasonsdifferent from those advanced by the defendant, we conclude, pursuant to our review of theentire case under § 33E, that the absence of an instruction on felony-murder in the seconddegree with arson as the predicate felony requires a reversal of the defendant's conviction of felony-murder in the first degree. [FN2] Accordingly, we reverse the defendant's convictionof that crime, set aside the verdict, and remand the case to the Superior Court for further proceedings. On remand, at the Commonwealth's option, a verdict of guilty of felony-murder inthe second degree may be entered in lieu of a new trial on the murder indictment. We affirm thedefendant's other convictions.
The events giving rise to this case resulted in a grand jury charging the defendantwith nine separate offenses by indictments handed up in February of 2007:(1) murder in thefirst degree of Julie Ann Nieves, G.L. c. 265, § 1; (2) arson, G.L. c. 266, § 1; (3) armed homeinvasion, G.L. c. 265, § 18C; (4)-(5) two charges of assault by means of a dangerous weapon,a knife, against Julie Ann Nieves and Tiffany Cruz, respectively, G.L. c. 265, § 15B (
); (6)assault and battery by means of a dangerous weapon, a hammer or knife, against Julissa Cruz,G.L. c. 265, § 15A (
); (7) assault and battery by means of a dangerous weapon, gasoline,against Larry Key, G.L. c. 265, § 15A (
); and (8)-(9) two charges of violating an abuseprevention order, G.L. c. 209A, § 7. All nine charges did not, however, reach the jury. Before jury empanelment began, the prosecutor stated that the Commonwealth would file a nolle