Commonwealth v. Bell, 460 Mass. 294

Bell was convicted of first-degree murder under a felony-murder theory, based on armed home invasion and other charges at 11 Warner Street.
Convictions included arson, armed home invasion, and two counts of violating abuse prevention orders; some counts were nolled or not pursued, and others were acquitted.
The underlying events: Bell, inside the Warner Street home, sprayed gasoline and ignited a fire, leading to Julie Ann Nieves’s death; evidence included gasoline can, nozzle, and burns on Bell.
The trial court did not give an instruction on felony-murder in the second degree based on arson as predicate felony; Bell moved for a new trial, raising merger and other challenges.
On appeal, the court reverses Bell’s first-degree felony-murder conviction and remands for potential entry of felony-murder in the second degree or retrial on that issue, while affirming his other convictions.
The court also reviews claims under G. L. c. 278, § 33E, and addresses ineffective assistance of counsel arguments related to voir dire and trial preparation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether merger invalidates felony-murder first degree	Bell argues merger of armed home invasion and homicide negates felony-murder.	Bell contends the predicate felony merges with death, making felony-murder legally impossible.	Conviction reversed; merger requires remand and possible second-degree felony-murder instruction.
Effectiveness of trial counsel on merger and investigations	Ineffective for not raising merger and for deficient investigation.	Counsel should have pursued merger and broader investigation; errors prejudicial.	No reversible error; trial counsel did not materially deprive Bell of a substantial defense.
Need for a second-degree felony-murder instruction based on arson	Second-degree instruction warranted by evidence of arson as distinct conduct.	No instruction requested; not essential.	A substantial likelihood of miscarriage of justice required a second-degree instruction on remand; first-degree conviction reversed.
G. L. c. 278, § 33E review on jury instructions and assurances of justice	Jurors could have considered lesser-included or second-degree options without the instruction.	Instruction omission harmed fairness and outcome.	Court conducts § 33E review; reversal on felony-murder first degree while affirming other convictions.

Commonwealth v. Doucette, 430 Mass. 461 (1999) (defines elements of armed home invasion and independence of conduct)
Commonwealth v. Gunter, 427 Mass. 259 (1998) (no merger where independent assaults exist; informs 'threatened use of force' analysis)
Commonwealth v. Kilburn, 438 Mass. 356 (2003) (merger analysis of felony-murder cases; requires independent conduct showing separate danger)
Commonwealth v. Pagan, 440 Mass. 84 (2003) (discusses independent threats of force in home invasion context)
Commonwealth v. Rego, 360 Mass. 385 (1971) (remand for murder in second degree where breaking and entering evidence supports it)
Commonwealth v. White, 353 Mass. 409 (1967) (failure to instruct on felony-murder second degree can create miscarriage of justice)
Commonwealth v. Christian, 430 Mass. 552 (2000) (explains degree-based approach to felony-murder instructions)
Commonwealth v. Paulding, 438 Mass. 1 (2002) (context on lesser forms of murder and when instructions may be required)
Commonwealth v. Matchett, 386 Mass. 492 (1982) (arson recognized as inherently dangerous felony)
Commonwealth v. Rhoades, 379 Mass. 810 (1980) (foundational discussion on arson as predicate and murder linkage)