Whether a charge of armed home invasion should have supported an instruction on second-degree felony murder; if so, whether the defendant is entitled to a new trial.

The defendant and another man came to an apartment armed with handguns. They first threatened the victim’s girlfriend, then shot the victim, who was sitting on the couch, and fled.

At trial, the jury were instructed (among other crimes) on felony murder in the first degree based on attempted armed robbery, but not felony murder in the second degree based on armed home invasion. (The lack of the second instruction was apparently because of the trial judge’s mistaken belief that armed home invasion was a life felony at the time.) The defendant was convicted of first degree felony murder as a joint venturer.

The defendant’s conviction was upheld on direct appeal. 440 Mass. 741. He now brings a motion for new trial, arguing that he was entitled to an instruction on felony murder in the second degree. The single justice initially denied permission to appeal, pursuant to G.L. c. 278, § 33E, and then allowed it.

On motion for new trial, the trial judge found that the armed home invasion could not support a felony murder conviction, because one of its elements was established by shooting the victim, and it therefore merged with the murder. The defendant argues that the armed home invasion charge was made out by the threat against the victim’s girlfriend, rather than by the attack on the victim, citing Commonweal v. Gunter, 427 Mass. 259 (1998).

This case presents the backwards logic of murder appeals, where the defendant argues that he could have been guilty of a crime the judge didn’t think of. In this case, the defendant is likely to succeed in showing that he was entitled to an instruction on second-degree felony murder (particularly where it seems the single justice may have reversed her decision in part because she was not aware that the victim’s girlfriend had earlier been threatened while the defendant was in the room). An issue not yet briefed by the parties, however, is whether the defendant is entitled to a new trial on that basis, where the jury validly found him guilty of first-degree felony murder on the basis of attempted armed robbery.