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SJC-12649

COMMONWEALTH vs. DAX GIBSON.

Worcester. February 10, 2023. - August 10, 2023.

Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.

Homicide. Felony-Murder Rule. Home Invasion. Armed Assault in 

a Dwelling. Armed Assault with Intent to Rob. Firearms. 

Joint Enterprise. Practice, Criminal, Capital case, New 

trial, Assistance of counsel, Instructions to jury, 

Duplicative convictions.

Indictments found and returned in the Superior Court 

Department on August 12, 2013.

The cases were tried before Richard T. Tucker, J., and a 

motion for a new trial, filed on July 29, 2021, was heard by 

Valerie A. Yarashus, J.

Jennifer H. O'Brien for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the 

Commonwealth.

GAZIANO, J. In February 2016, a Superior Court jury 

convicted the defendant of murder in the first degree on a 

theory of felony-murder and related robbery and firearms 

offenses in connection with the shooting death of Luis Rodriguez 
2

during a botched robbery. At trial, the Commonwealth alleged

that the defendant was the shooter, recruited by Dinkue "D" 

Brown,1 who wanted to teach the victim a lesson by robbing him. 

In execution of this plan, the defendant went to the victim's 

apartment, knocked on the door, and pushed past the victim into 

the apartment when the victim answered the door. A fight 

ensued, after which the defendant fatally shot the victim.

In his direct appeal, consolidated with his appeal from the 

denial of his motion for a new trial, the defendant raises an 

assortment of arguments. He first claims that a new trial is 

necessary because trial counsel was ineffective for failing to 

introduce exculpatory telephone records. The defendant also 

contends that the predicate felony of armed assault in a 

dwelling merged with the killing of the victim and could not 

support his felony-murder conviction. Moreover, the defendant 

argues that his conviction of armed assault with intent to rob 

violated his right to be free from double jeopardy. The 

defendant further claims that the trial judge erred in 

instructing the jury on joint venture and submitting a general 

verdict to the jury. In addition, the defendant requests that 

we vacate his firearms-related convictions in light of our 

1 After a jury trial in September 2016, Brown was convicted 

of murder in the first degree and other offenses. His direct 

appeal is pending in this court. Commonwealth vs. Brown, SJC12650.
3

recent opinion in Commonwealth v. Guardado, 491 Mass. 666 

(2023). Finally, the defendant asks this court to exercise its 

extraordinary authority pursuant to G. L. c. 278, § 33E, and 

grant him a new trial or reduce the murder conviction to a 

lesser degree of guilt.

For the reasons that follow, we vacate the defendant's 

firearms-related convictions. After having carefully examined 

the record and considered the defendant's arguments, we affirm 

the defendant's conviction of murder in the first degree based 

on a theory of felony-murder, as well as his convictions of home 

invasion and armed assault with intent to rob, and we also 

affirm the denial of his motion for a new trial.2

1. Background. We summarize the facts the jury could have 

found, reserving certain details for later discussion.

a. Events prior to the shooting. At the time of his 

death, the victim lived on the third floor of an apartment 

building in Fitchburg and was a known drug dealer. A mutual 

friend of both the defendant and the victim, Brown sold drugs 

supplied by the victim.

2 The defendant argues, and the Commonwealth concedes, that 

his conviction of armed assault in a dwelling is a lesser 

included offense that is duplicative of his conviction of murder 

in the first degree based on the theory of felony-murder. We 

therefore vacate the defendant's conviction of armed assault in 

a dwelling. See Commonwealth v. Rivera, 445 Mass. 119, 132 

(2005).
4

On the night of June 20, 2013, the victim and his 

girlfriend, Cendy Mejia-Rincon, met the victim's friends, 

including Brown, Mallory Nooks, and Joseph Dale, to go to a bar,

and they ended the night at the victim's apartment. During that 

night, the victim made a disparaging comment to Brown, and 

later, the victim intervened in an altercation between Brown and 

Nooks, telling Brown he needed to show women more respect. At 

some point, while the group was at the victim's apartment, the 

victim asked Brown to pay a debt. Brown pulled out a one 

hundred dollar bill and told the victim he would pay him the 

rest later that day. The gathering ended around 6 A.M., and the 

victim and Mejia-Rincon went to bed.

The next day, at around 9 A.M., Michele Kelley went to

Brown's apartment in Fitchburg to pick up Brown in her blue 2006 

sport utility vehicle (SUV), so that the two could deliver 

drugs. Kelley's friend, Jenna Kearchner, and Kelley's twenty

month old son joined Kelley and Brown on their delivery route. 

They conducted from six to eight drug deliveries over the course 

of one to two hours. During this time, Brown talked on his cell

phone and was aggravated because the victim was "badmouthing 

him" and making him look "bad" by saying that Brown had not paid 

money he owed the victim. Brown stated that "he needed to do 

something about it."
5

Brown telephoned his girlfriend, Gihan Alcantara, and told 

her that he needed his gun. He instructed Alcantara to leave it 

under the seat of a vehicle parked in front of her house in 

Fitchburg. Kelley drove to Alcantara's residence, and Brown 

ordered Kearchner to retrieve the "package" from under the seat 

of the parked vehicle. Kearchner complied and returned to the 

car with a plastic shopping bag containing a revolver wrapped in 

a T-shirt. Brown inspected the revolver and then telephoned the 

defendant, telling him that Brown "needed him . . . right away" 

to do "something," and that the defendant would "be paid well." 

Brown then ordered Kelley to drive him to pick up the defendant.

At the time, the defendant had been dating and living with 

his girlfriend, Ashley Fruguglietti, and their infant son in an 

apartment in Gardner. On that day, Fruguglietti had arranged

for her friend, Alicia Francis, to drive her to an appointment

at 1 P.M. while the defendant was to stay with their son. At 

some time between 11 A.M. and 12 P.M., after Francis had arrived

to meet Fruguglietti, the defendant received a telephone call

and provided the caller with directions to their home.3 He told 

Fruguglietti that he could no longer watch their son, because 

3 Fruguglietti testified that the telephone call occurred 

between 11 A.M. and 11:30 A.M., while Francis testified that the 

telephone call occurred around noon.
6

"he had to go take care of something." The defendant left the 

apartment at around 12:10 P.M.

When Kelley's car arrived at the defendant's residence, the 

defendant entered the back seat with a black duffel bag

containing firearms and knives, and he was wearing a black 

hooded sweatshirt, black pants, sneakers, and a black hat. 

During the twenty-minute car ride to the victim's residence, the 

defendant and Brown discussed how the defendant would rob the 

victim of his drugs and cash, and that Brown would keep the cash 

and the defendant would keep the drugs. The defendant removed 

the revolver from the bag and examined it. As Kelley's car

approached the victim's residence in Fitchburg, Brown provided

the defendant with instructions and a description of the layout 

of the victim's apartment; Brown warned the defendant that the 

victim's girlfriend, Mejia-Rincon, might be present.

After surveying the apartment and street, the group

returned to Brown's apartment, where Brown ordered Kearchner and 

Kelley's son to stay with Dale, to be held as "collateral."4 

Kelley, Brown, and the defendant then left for the victim's 

apartment in Kelley's blue SUV; Kelley drove, Brown sat in the 

front passenger's seat, and the defendant sat in the middle seat

of the row behind Kelley and Brown. Kelley parked near the 

4 Dale was tried jointly with the defendant on three charges 

of kidnapping, on which he was acquitted.
7

victim's building, with her car angled slightly outward so that

they could leave quickly. The defendant wrapped a black T-shirt 

around his head and face, leaving only his eyes visible, stepped 

out of the vehicle, and walked to the victim's apartment.

b. The shooting. Mejia-Rincon testified that at "[a]bout 

twelve" or "noontime," she heard a knock at the door; she

remained in the bedroom while the victim tossed a gun on the 

bed, left the bedroom, went to the door, and asked who was 

there. Mejia-Rincon heard, "It's D," but she did not readily 

recognize the man's voice. The victim opened the door, and a 

fight ensued, causing a couch to shift and a glass to fall on 

the floor. When Mejia-Rincon peeked from one of the two bedroom 

doors that opened into the living room, the fighting had 

stopped, and she saw a person "wearing all black" with "a black 

hat that covered the whole head" pointing an "old-fashioned gun"

with a cylinder at the victim, who was standing against the 

wall. After observing the two individuals "for less than a 

minute," Mejia-Rincon closed the bedroom door and heard people 

running, followed by two or three gunshots. When Mejia-Rincon

opened the second door to the bedroom, which provided a view of 

the entrance, she saw the man dressed in black with his head

covered walk out of the apartment. She noticed marks on the 

back of the shooter's neck, which appeared to be tattoos, but 

she was not wearing her eyeglasses. Mejia-Rincon did not see 
8

the victim. Mejia-Rincon testified that she thought the shooter 

might have been Brown but was not sure because she never saw the 

shooter's face. The incident "happened quick[ly]," in "a short 

time," over the course of "maybe like ten, fifteen minutes."

On the day of the shooting, at exactly noon, Amanda 

Compton, the victim's first-floor neighbor, heard a "bunch of 

noise," like people wrestling, followed by what sounded like a 

"herd of elephants" coming down the stairs. She did not recall 

hearing gunshots.

"[A] couple of minutes" after the defendant left her 

vehicle, Kelley heard approximately three gunshots. About one 

minute later, she observed the victim leave the apartment 

building, shirtless and bleeding from the chest, and "[dive]

into what looked like bushes." Right after, the defendant also 

left the residence and got into the back seat of the vehicle, 

stating that his "life [was] over" because his deoxyribonucleic 

acid (DNA) would be in the victim's apartment. The defendant 

removed his T-shirt, and Kelley believed that the defendant had 

cut his hand, which is why he expressed concern that his DNA 

would be in the apartment. The defendant cried and said that 

the victim fought back, and that he did not want to kill the 

victim, but that the victim was going to die. On Brown's 

command, Kelley "peeled out" and left the area.
9

The victim's neighbor, Gary Laaksonen, arrived home from 

work and was outside at around 12:45 P.M. From his front yard, 

about forty to fifty feet away, he observed a "bluish-gray" 

colored SUV parked across the street with two people in it -- a

woman with reddish hair in a pulled back style in the driver's 

seat and a man with a shaved head in the front passenger's side. 

Laaksonen then saw his neighbor, the victim, who appeared to be 

scared, come out of his apartment building. Approximately one

to two minutes later, Laaksonen observed a second man leave the 

victim's apartment building, go to the vehicle parked across the 

street, enter by the rear passenger's side door, and say, "Let's 

go, let's get out of here."

c. Aftermath of the shooting. Kelley drove to a 

convenience store, where Brown instructed her to park behind the 

store so that they could "get rid of the guns." He also ordered 

Kelley to clean blood from the back seat where the defendant had 

sat. The defendant expressed concern that Kelley was a witness 

to the events surrounding the shooting, so Brown made her 

promise not to tell anyone.

The defendant, Brown, and Kelley then entered Tiffany 

Phillinger's apartment, which was in a building connected to the 

convenience store. According to Phillinger, a friend of the 

defendant, the defendant and Brown arrived between 1 P.M. and 

1:30 P.M. The defendant and Brown were "fidgety," and the 
10

defendant appeared nervous. She also noticed that the defendant 

had "a couple of spots of blood on his leg." The defendant used 

Phillinger's bathroom to shower, and Phillinger gave the 

defendant and Brown a change of clothes. They then went to the 

kitchen to listen to a police scanner to see whether anyone had 

reported Kelley's license plate. While listening to the 

scanner, Brown asked the defendant, "Why did you do that?" and 

the defendant responded, "What did you expect me to do? He was 

fighting me." A day or two later, the defendant telephoned

Phillinger and told her to "say that he wasn't at [her] house" 

and "not to mention [his] name, or else."

At around 1:20 P.M., while still at the victim's residence, 

Mejia-Rincon telephoned two of the victim's friends and

explained that she did not know where the victim had gone or 

what had happened to him.5 The victim's two friends arrived 

within the next twenty minutes; they searched for the victim but 

could not locate him. After they "heard a lady scream" from 

outside, the three decided to stop their search and leave. They

left the apartment before police arrived.

5 On the day of the shooting, Nooks received a telephone 

call about the shooting from her brother, one of the victim's 

friends, who had helped search for the victim. Nooks then

called Brown to ask him about what had happened; she testified 

that the call occurred between 11:30 A.M. and 12 P.M.
11

After the defendant and Brown cleaned up at Phillinger's 

apartment, the defendant left and went to Fruguglietti's 

mother's house. The defendant arrived there at around 2:30 P.M. 

He was upset, had tears in his eyes, a cut on his hand, and

blood on his sneakers. The defendant told Fruguglietti that he 

had been in a fight, that he had "fucked up," and that he was 

sorry.

Francis drove the defendant and Fruguglietti back to 

Gardner. The defendant told Fruguglietti and Francis to provide 

him an alibi and to tell police that he was with them "from 

twelve to five" that day. The defendant told Francis that he

had "messed up," that he had been "in a fight for his life," and

that he had tried to rob someone, but it had gone wrong; he then 

asked her to bring his sneakers to her work and to get rid of 

them in the Dumpster. Francis complied.

Later that night, the defendant told Francis and 

Fruguglietti that he needed a ride the next morning, June 22,

2013, to meet a van that would bring him to New York City. He 

also told them that he was "sorry," and that his intent was to 

rob the victim, but "it went wrong." After being pressed by

Fruguglietti, the defendant further explained what had occurred: 

he had knocked on the victim's door, pushed his way into the 

apartment, and pointed a gun at the victim when he realized the 

victim also had a gun. He then said that "they [had] got[ten]
12

in a physical fight, and that the gun [had gone] off a few 

times; and he [had] looked around for something to take out of 

the house, and he [had] seen a girl in the house, so he ran 

out." The defendant admitted that Brown told him the victim had 

drugs and money at his apartment, and "it was too good of an 

opportunity to pass up."

d. Police investigation. At 2:16 P.M., emergency medical 

workers and police officers responded to a telephone call from a 

neighbor indicating that there was a man in need of assistance; 

they found the victim's body on the rear porch of a building 

near his apartment building. A blood trail went from the 

victim's body, up some steps to a sidewalk and eventually to the 

front exterior stairs, the front porch, and through the interior 

stairs and hallway of the victim's apartment building, leading

to his third-floor apartment. The medical examiner who 

performed the autopsy reported that the victim had two gunshot 

wounds and "two graze gunshot wounds." The victim also had 

abrasions on the side of his left abdomen, on the right side of 

his back, and on his right hip area; abrasions or scratches on 

both knees; and lacerations on his scalp and on the left side of 

his neck. The cause of death was determined to be a gunshot 

wound to the torso.

Inside the victim's apartment, police located three scales

and a knife in the front bedroom, and two intertwined white T-
13

shirts with blood stains, a folding knife, and a .40 caliber

Smith & Wesson semiautomatic pistol in the living room. In the 

kitchen, police observed a hole in the door trim to the pantry, 

wooden fragments on the kitchen table, a mark on the wall above 

the sink, a mark on the ceiling, and a projectile on the kitchen 

floor. Police did not recover any shell casings, which the 

Commonwealth's ballistics expert testified is consistent with 

shots fired from a revolver. He further opined that the

projectile found in the kitchen, along with the two projectiles 

removed from the victim's body, could not have been fired by the 

firearm located in the victim's apartment. Based on the 

markings in the victim's kitchen and the spent projectiles, the 

ballistics expert concluded that the shots were fired from the 

front of the living room into the kitchen area.

On June 23, 2013, Kelley went to the Fitchburg police 

station and gave statements to police about the murder. When 

she arrived at the police station, Kelley gave the officers the 

keys to her vehicle and told them that evidence of the murder 

would be in her car.

Police searched the vehicle, finding blood stains at the 

back of the front passenger's seat "near the bottom of the armrest area," and in the rear passenger's seat toward the middle 

seats on both the seat back and seat bottom. The major male DNA 

profile obtained from the swab of the rear passenger's seat 
14

matched the victim. The defendant, Brown, and the victim were 

excluded as the source of the major DNA profile from the swab of 

the back of the front passenger's seat.

On June 25, 2013, the defendant telephoned Fruguglietti and 

warned her "that the police were going to come to [her] house, 

and not to be stupid." A few minutes later, police arrived and 

brought Fruguglietti and Francis to the police station for 

questioning. Per the defendant's request, Fruguglietti and 

Francis both lied to police officers, telling them that the 

defendant had been with them from 12 P.M. to 5 P.M. on the day 

of the shooting.

Officers interviewed Francis again on July 9, during which

she gave a statement that differed from her earlier interview 

when she said that she had been with the defendant on June 21 

from 12 P.M. to 5 P.M. The defendant fled from Massachusetts, 

and he later was apprehended with Fruguglietti in Virginia on 

July 25.

e. Prior proceedings. In August 2013, a grand jury 

returned indictments charging the defendant with murder in the 

first degree, G. L. c. 265, § 1; home invasion, G. L. c. 265, 

§ 18C; armed assault in a dwelling, G. L. c. 265, § 18A; armed 

assault with intent to rob, G. L. c. 265, § 18 (b); three counts 

of kidnapping, G. L. c. 265, § 26; possession of a firearm 

without a firearm identification (FID) card, as a career 
15

criminal, G. L. c. 269, §§ 10 (h) (1), 10G (a); possession of 

ammunition without an FID card, as a career criminal, G. L. 

c. 269, §§ 10 (h) (1), 10G (a); unlawfully carrying a loaded 

firearm without a license, G. L. c. 269, § 10 (a), (n); and 

threatening to commit a crime, G. L. c. 275, § 2.

In January 2016, the defendant's joint trial with his 

codefendant, Dale, commenced and spanned two weeks. In February 

2016, the jury convicted the defendant of murder in the first

degree on the theory of felony-murder, in addition to all the 

remaining charges, except for the three kidnapping charges and 

threatening charge, on which he was acquitted. The defendant 

filed his notice of appeal soon thereafter, and the Commonwealth 

subsequently entered a nolle prosequi for the unlawful 

possession of ammunition charges.

The defendant's appeal was docketed in this court in 2018. 

The defendant then filed a motion to stay his appeal and a 

motion for a new trial, which was remanded to the Superior 

Court. The motion judge, who was not the trial judge, denied 

the defendant's motion for a new trial after a nonevidentiary

hearing, and the defendant again appealed. We allowed the 

defendant's motion to consolidate his direct appeal with his 

appeal from the denial for his motion for a new trial.

2. Discussion. a. Ineffective assistance of counsel. 

The defendant argues that his trial counsel was ineffective for 
16

failing to introduce three categories of telephone records, 

thereby depriving him of an otherwise available, substantial 

ground of defense, namely, that Brown was the shooter, while the 

defendant was at home in Gardner the entire time.

When reviewing a defendant's appeal from the denial of a 

motion for a new trial in conjunction with the direct appeal of 

a conviction of murder in the first degree, "we do not evaluate 

his ineffective assistance claim under the traditional standard 

set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)" 

(citation omitted). Commonwealth v. Melendez, 490 Mass. 648, 

656-657 (2022). Instead, we apply the more favorable standard 

of G. L. c. 278, § 33E, and review the defendant's claim for a 

substantial likelihood of a miscarriage of justice. Id. at 657. 

Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C. 469 

Mass. 447 (2014). Under this standard, "we first ask whether 

defense counsel committed an error in the course of trial," and 

if there was error, "we ask whether it was likely to have 

influenced the jury's conclusion." Commonwealth v. Ayala, 481 

Mass. 46, 62 (2018), citing Commonwealth v. Seino, 479 Mass. 

463, 472-473 (2018).

We conclude that any errors by trial counsel did not create 

a substantial likelihood of a miscarriage of justice. See 

Ayala, 481 Mass. at 62. Accordingly, the motion judge did not 

abuse her discretion in denying the defendant's motion for a new 
17

trial. See Commonwealth v. Hernandez, 481 Mass. 189, 195, cert. 

denied, 140 S. Ct. 168 (2019), quoting Commonwealth v. Phinney, 

446 Mass. 155, 158 (2006), S.C., 448 Mass. 621 (2007) ("As the 

motion judge was not the trial judge, and as the motion judge 

conducted a nonevidentiary hearing, we are in 'as good a 

position as the motion judge to assess the trial record'"

[footnote omitted]).

Trial counsel explained that the Commonwealth provided him 

with telephone records of various witnesses and involved parties 

prior to trial. From what he could recall, he did not introduce 

the telephone records because it was unclear to whom the 

telephone numbers belonged or who was using the telephones at 

the relevant times. Trial counsel nonetheless conceded that his 

decision not to introduce telephone records in furtherance of 

the defendant's alibi defense was an oversight; he did not know 

there were telephone records that could have supported the 

defendant's alibi or "defense in any way."

There are three categories of telephone records at issue: 

a 12:16 P.M. telephone call from the defendant's landline to 

Brown on the day of the shooting; Kelley's cell phone records 

between 11 A.M. and 1 P.M. on the day of the shooting, 

indicating her ability to access and use her cell phone; and

Brown's cell phone records, specifically, a twenty-one minute 
18

period of inactivity from 12:22 P.M. to 12:43 P.M. on the day of 

the shooting. We analyze each in turn.

i. Telephone call at 12:16 P.M. The defendant argues that 

the 12:16 P.M. telephone was important alibi evidence; it would 

be impossible for the defendant to be the shooter, where 

multiple witnesses testified that the shooting occurred at or 

around noontime and where the telephone call proves he was still 

at his house in Gardner at that time. The motion judge 

concluded this information was not material because, even if the 

defendant had made that telephone call, it was possible for him 

still to travel the distance between Gardner and Fitchburg and 

to commit the murder in the time frame described "by at least 

some of the witnesses." We agree.

The witnesses provided varying testimony about when exactly 

the shooting occurred, which makes it difficult to discern a 

concrete timeline of events to support the defendant's theory 

that he could not have been in Fitchburg at the time of the 

shooting. For instance, the victim's girlfriend, Mejia-Rincon, 

and the woman who was in the first-floor apartment on that day, 

Compton, both testified that the events occurred at noon. 

Laaksonen offered differing testimony, telling the jury that he 

saw the victim and an individual in pursuit of him leave the 

victim's residence at around 12:45 P.M. Nooks recalled calling 

Brown to ask him about the shooting between 11:30 A.M. and 
19

12 P.M., and one of the two friends who helped search for the 

victim received a telephone call from Mejia-Rincon at "around"

1:20 P.M. immediately after the shooting. According to 

Phillinger, the defendant and Brown arrived at her apartment 

between 1 P.M. and 1:30 P.M. Finally, emergency personnel 

responded to a dispatch at 2:16 P.M., and Fruguglietti and 

Francis both testified that the defendant arrived at 

Fruguglietti's mother's house at around 2:30 P.M. As the motion 

judge noted, all of the trial testimony "is consistent with the 

crucial events occurring between noon and 2 P.M., but beyond 

that, there are multiple differing estimates of the precise time 

of the shooting and surrounding circumstances."

Considering the timeline evidence in its totality, even if 

trial counsel had introduced the 12:16 P.M. telephone call at 

trial and were able to prove the defendant was the individual 

who made that call, it likely would have had little effect on 

the jury's verdicts. See Commonwealth v. Moore, 489 Mass. 735, 

743-745 (2022) (no ineffective assistance of counsel where "cell 

phone records [did] not establish a different timeline from that 

developed at trial"). It cannot be said that trial counsel was 

ineffective where there is nothing that indicates "better work 

might have accomplished something material for the defense." 

Commonwealth v. Watt, 484 Mass. 742, 764 (2020), quoting 

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
20

Moreover, trial counsel elicited testimony to place the 

alibi defense in front of the jury. Fruguglietti testified that 

the defendant did not leave their apartment in Gardner until 

12:10 P.M. Counsel highlighted this fact in his closing 

argument, stating that the defendant "at noontime on June 21, 

2013, is in Gardner, twenty to thirty minutes away from [the 

victim's apartment]." Although introducing the 12:16 P.M. 

telephone call could have corroborated Fruguglietti's testimony, 

failure to introduce this evidence cannot be said to have 

resulted in a substantial likelihood of a miscarriage of 

justice. See Commonwealth v. Hensley, 454 Mass. 721, 736 

(2009), citing Commonwealth v. Medeiros, 395 Mass. 336, 347 

(1985) ("There is no requirement that trial counsel always 

present . . . documentary evidence to support an argument, 

especially where other evidence is presented to support it").

ii. Kelley's cell phone records. Next, the defendant 

argues that Kelley's cell phone records, showing that she was 

sending and receiving text messages and telephone calls between 

11 A.M. and 1 P.M. on the day of the shooting, indicates that

she did have access to her cell phone while she was held 

captive, despite testifying that she did not, significantly 

undermining her credibility as a witness. This argument is 

unavailing.
21

As an initial matter, "[e]ven [using] the more favorable 

standard of review under § 33E, a claim of ineffective 

assistance based on failure to use particular impeachment 

methods is difficult to establish." Commonwealth v. Fisher, 433 

Mass. 340, 357 (2001). Further, both trial counsel and 

investigating officers explained that it was difficult to 

distinguish who was using which cell phone. A State police

detective who investigated the victim's death testified that 

because there was "a lot of handing of cell phones back and 

forth," "there [was] no reliability as to who to associate, 

phone-to-number." Even if trial counsel introduced Kelley's 

cell phone records to attempt to show that she did have access 

to and used her cell phone while she was being held captive, the 

jury already had heard that the cell phone records were an 

unreliable means of determining who was actually making a given 

telephone call.

Trial counsel also diligently and thoroughly impeached 

Kelley by questioning her about her differing versions of events 

over time,6 her drug use and her dependency on Brown as her drug 

dealer, and the benefits she received from the prosecution for 

testifying in the defendant's trial. Further impeachment of 

6 At a prior hearing in this case, Kelley testified that 

Brown was the individual who went into the victim's building to 

attempt to rob the victim.
22

Kelley with her cell phone records likely would not have 

affected the jury's verdict in this case, where "it would have 

been cumulative of the ample information trial counsel already 

had available and used effectively." Watt, 484 Mass. at 764. 

See Fisher, 433 Mass. at 357 ("absent counsel's failure to 

pursue some obviously powerful form of impeachment available at 

trial, it is speculative to conclude that a different approach 

to impeachment would likely have affected the jury's 

conclusion").

iii. Brown's cell phone records. Finally, the defendant 

maintains that trial counsel was ineffective for failing to 

introduce Brown's cell phone records, which would have shown a 

twenty-one minute period of inactivity between 12:22 P.M. and 

12:43 P.M. on the day of the shooting. He argues that this 

period of inactivity supports the theory that Brown was the one 

who shot the victim, and not the defendant.

We cannot say that introduction of these records would have 

influenced the jury verdict. See Ayala, 481 Mass. at 62. As 

the motion judge correctly noted, introduction of Brown's cell

phone records could have hurt the defense, because they showed 

multiple telephone calls between the defendant and Brown on the 

day of the shooting. They also corroborated Kelley's and 

Fruguglietti's testimony that the defendant received a telephone 

call from Brown in the time leading up to the shooting. 
23

Although the period of silence in Brown's telephone usage 

supported the defendant's theory that Brown was the shooter, it 

equally would have tied the defendant to Brown, where the 

Commonwealth's theory was the defendant participated in a joint 

venture to rob and kill the victim. The fact that Brown was not 

using his cell phone actively from 12:22 P.M. to 12:43 P.M. may 

have provided some support for the theory that Brown was the 

shooter, but those same records would have aided a theory that 

the defendant nonetheless was guilty of murder in the first 

degree as a joint venturer. Where introduction of the cell

phone records had the simultaneous potential to incriminate and 

exculpate the defendant, there can be no substantial likelihood 

of a miscarriage of justice. See, e.g., Commonwealth v. Jacobs, 

488 Mass. 597, 604 (2021) (counsel was not ineffective for 

failing to call witnesses where testimony "could cause more harm 

than good to the defense's case").

Given the overwhelming evidence of the defendant's guilt, 

we are confident that even if trial counsel had offered the 

telephone records, they would not have influenced the jury's 

conclusion that the defendant shot the victim. We discern no 

error in the judge's denial of the defendant's motion for a new 

trial on this basis.

b. Felony-murder merger doctrine. The defendant was 

convicted of felony-murder with the predicate felonies being 
24

armed home invasion and armed assault in a dwelling. At oral 

argument before this court, the issue of merger arose 

surrounding the Commonwealth's reliance on these charges to

serve as the predicates for the charge of felony-murder in the

first degree. The parties were permitted to file supplemental 

briefing on this issue. In his supplemental filing, the 

defendant argues that the trial judge erred by failing to 

instruct the jury on the merger doctrine of felony-murder, where 

armed assault in a dwelling was the predicate offense. We agree 

that the trial judge should have instructed on merger, but it 

did not result in a substantial likelihood of a miscarriage of 

justice.

"The merger doctrine functions as a constraint on the 

application of the felony-murder rule by limiting the 

circumstances in which a felony may serve as the predicate for 

felony-murder." Commonwealth v. Fredette, 480 Mass. 75, 80 

(2018).7 Specifically, "the conduct which constitutes the felony 

must be separate from the acts of personal violence which 

constitute a necessary part of the homicide itself" (quotation

and citation omitted). Commonwealth v. Gunter, 427 Mass. 259, 

7 As both the murder and the defendant's trial occurred 

before our decision in Commonwealth v. Brown, 477 Mass. 805, 807 

(2017), cert. denied, 139 S. Ct. 54 (2018), we do not address 

the effect that that decision has on the ongoing vitality of the 

merger doctrine. See Fredette, 480 Mass. at 80 n.9.
25

272 (1998), S.C., 456 Mass. 1017 (2010) and 459 Mass. 480, cert. 

denied, 565 U.S. 868 (2011). The doctrine "ensures that not 

every assault that results in death will serve as a basis for 

murder in the first degree on the theory of felony-murder." 

Commonwealth v. Scott, 472 Mass. 815, 819 (2015).

In Fredette, we established a two-step framework to analyze 

whether a felony merges with a subsequent killing in cases that 

predate our decision in Commonwealth v. Brown, 477 Mass. 805 

(2017), cert. denied, 139 S. Ct. 54 (2018). See Fredette, 480 

Mass. at 81. The first step is to inquire whether, as a matter 

of law, the felony is capable of merger. See Commonwealth v.

Phap Buth, 480 Mass. 113, 118 n.8, cert. denied, 139 S. Ct. 607

(2018). The second step is a factual inquiry; "[i]f merger is a 

possibility, it is for the jury to determine whether the felony 

that occurred was separate from the killing as a matter of 

fact." Id., citing Fredette, supra at 84.

i. Separate intent or purpose. A predicate felony is 

incapable of merger with the killing itself if it has "an intent 

or purpose separate and distinct from the act causing physical 

injury or death." Fredette, 480 Mass. at 81. Kidnapping, armed 

robbery, rape, and arson are examples of predicate felonies that 

are categorically incapable of merging with murder because they 

have an intent or purpose separate and distinct from the act of 

killing. See id. at 86 ("Because aggravated kidnapping involves 
26

an intent independent from the killing, neither form of 

aggravated kidnapping implicates the merger doctrine"); 

Commonwealth v. Christian, 430 Mass. 552, 556 (2000) (armed 

robbery does not merge with killing because underlying purpose 

of armed robbery is to steal, which is independent of intent to 

harm victim); Commonwealth v. Wade, 428 Mass. 147, 153 (1998), 

S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016) ("the intent 

to commit the rape, not the intent to inflict serious bodily 

harm, was the substitute for the malice requirement of murder"); 

Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert. 

denied, 471 U.S. 1115 (1985) (for purposes of merger doctrine, 

"rape, arson, robbery and burglary are sufficiently independent 

of the homicide" [citation omitted]). If this condition is 

satisfied, no further analysis is required. Fredette, supra

at 81.

Here, however, one of the potential predicate offenses was 

armed assault in a dwelling, which lacks "an independent 

felonious purpose from the intent to cause physical injury or 

death." Fredette, 480 Mass. at 85. See Gunter, 427 Mass. 

at 274-275 (there are circumstances "wherein armed assault in a 

dwelling is not a suitably independent felony to support a 

conviction of murder in the first degree"). Therefore, it was 

error for the trial judge not to instruct the jury on merger; it 

was for the jury to decide whether the conduct underlying the 
27

felony was distinct from the act that caused the killing. See

Phap Buth, 480 Mass. at 118. Because the defendant did not 

object at trial to the lack of instruction, we consider whether 

that error created a substantial likelihood of a miscarriage of 

justice. See id. at 119; Gunter, supra at 274.

ii. Independent acts. "If the underlying predicate felony 

does not have an independent felonious purpose, the court must 

then undertake a second step in the analysis, to determine 

whether the felony merges with the killing." Fredette, 480 

Mass. at 84. We turn next to whether the predicate felony 

merged with the shooting as a matter of fact. See Phap Buth, 

480 Mass. at 118 n.8. Armed assault in a dwelling "may serve as 

the predicate for felony-murder so long as the conduct that 

constitutes the armed assault (the underlying felony) is 

separate and distinct from the conduct necessary to kill the 

victim." Fredette, supra at 85, citing Commonwealth v. Kilburn, 

438 Mass. 356, 358-359 (2003).

Here, the defendant argues that there was a single struggle 

between the defendant and the victim that resulted in the death 

of the victim thereby implicating the merger doctrine. We 

disagree. Testimony by Mejia-Rincon, who was present at the 

time of the shooting, in addition to Fruguglietti's testimony

and evidence of the victim's injuries, support that there were 

at least two separate assaults of the victim.
28

Mejia-Rincon testified that there was a knock at the door, 

and when the victim opened the door, a fight ensued. After the 

fighting had ceased, Mejia-Rincon opened the bedroom door and 

looked out into the living room, where she saw the defendant 

pointing a gun at the victim, who was standing against the wall. 

After she closed the door again, she heard running and then two 

or three gun shots. Fruguglietti also testified at trial, 

recounting the defendant's version of events. The defendant 

told Fruguglietti that he knocked on the victim's door, pushed 

his way into the apartment, and proceeded to get into a physical 

fight with the victim. The gun then went off a few times. 

Mejia-Rincon testified that "[e]verything happened quick[ly]," 

in "a short time," over the course of "maybe like ten, fifteen 

minutes."

Based on the testimony given at trial there was at least 

one, and possibly two, assaults that occurred prior to the shots 

being fired that resulted in the death of the victim. First, 

the defendant told Fruguglietti that he pushed his way into the 

victim's apartment. Second, there also was a fight between the 

defendant and the victim and time between the "scuffle" and the 

shooting of the victim -- enough time that Mejia-Rincon closed 

the bedroom door and heard running. The defendant's and the 

victim's injuries also are consistent with an assault having 

occurred prior to the shooting. The defendant had a cut on his 
29

hand from the victim "fighting" back, and the victim had 

multiple abrasions and lacerations on his abdomen, back, knees, 

neck, and head. The evidence was sufficient to establish that 

there were, at a minimum, two discrete assaults. See Scott, 472 

Mass. at 823 (defendant's conviction of felony-murder in first 

degree with home invasion as predicate felony affirmed where 

defendant's struggle with victim at front door constituted first 

assault, and where gunshot killing victim, which occurred "right 

after," was second independent assault); Kilburn, 438 Mass.

at 359 (no merger where person in home opened door, gunman 

committed first assault by entering, brandishing gun, and 

pushing victim backward, and after short interlude, gunman then 

shot victim, committing second act). Contrast Commonwealth v. 

Stokes, 460 Mass. 311, 314 & n.8 (2011) (armed home invasion 

could not serve as predicate felony because act of pointing gun 

at victim in course of shooting him was not sufficiently 

separate from shooting itself). It is not dispositive that the 

shooting occurred within a short period of time after the 

defendant entered the victim's apartment. See Scott, supra

at 824 (fact that entry into residence and shooting "occurred 

within a matter of seconds" was not fatal to merger analysis).

In sum, the trial judge should have instructed the jury on 

merger where the predicate felony for felony-murder was armed 

assault in a dwelling, and there was only one victim. See Model 
30

Jury Instructions on Homicide 63 (2018) (merger instruction 

required "where [1] the underlying felony contains an element of 

assault and [2] the underlying felony, by its nature, does not 

have an intent or purpose separate and distinct from the act 

causing physical injury or death"). Nevertheless, given the 

evidence at trial, the jury could have found beyond a reasonable 

doubt that the defendant committed at least two distinct 

assaults on the victim; the lack of instruction did not result 

in a substantial likelihood of a miscarriage of justice. See 

Phap Buth, 480 Mass. at 120, citing Gunter, 427 Mass. at 274.

c. Armed assault with intent to rob. The defendant argues 

that his conviction of armed assault with intent to rob must be 

vacated as duplicative of his conviction of armed assault in a 

dwelling where the predicate felony for felony-murder was armed 

assault in a dwelling, and the armed assault with intent to rob 

served as the "fourth element" for armed assault in a dwelling. 

Specifically, the defendant's argument is that, because the 

Commonwealth had to prove that the defendant had the specific 

intent to commit an armed assault with intent to rob, his 

convictions of both armed assault in a dwelling and armed 

assault with intent to rob are duplicative. Unpacking this

nested argument requires a review of the elements of both armed 

assault in a dwelling and armed assault with intent to rob.
31

At trial, the judge correctly instructed the jury that to 

convict the defendant of armed assault in a dwelling, as the 

predicate offense for felony-murder, the Commonwealth must prove 

beyond a reasonable doubt that "(1) the defendant entered a 

dwelling that was not his own while armed with a dangerous 

weapon; (2) the defendant assaulted another inside the dwelling; 

and (3) the assault was committed with the intent to commit a 

felony." Commonwealth v. Negron, 462 Mass. 102, 109 (2012), 

citing G. L. c. 265, § 18A. To convict an individual of armed 

assault with intent to rob, the Commonwealth must prove that the 

defendant (1) was armed with a dangerous weapon; (2) assaulted a 

person; and (3) had a specific or actual intent to rob the 

person assaulted. Commonwealth v. Rivera, 445 Mass. 119, 130

n.15 (2005), citing G. L. c. 265, § 18.

The defendant argues that the actions were related so 

closely that the verdicts are duplicative, citing Commonwealth

v. Santos, 440 Mass. 281, 293 (2003), in support of this 

proposition. Our decision in Santos was overruled by our 

decision in Commonwealth v. Anderson, 461 Mass. 616, 632-633, 

cert. denied, 568 U.S. 946 (2012), where we explicitly rejected 

the closely related conduct-based approach except where one 

crime is a lesser included offense of the other or where there 

are multiple counts of the same offense. See id., quoting 

Commonwealth v. Vick, 454 Mass. 418, 431 (2009) ("elements-based 
32

approach remains the standard for determining whether multiple 

convictions stemming from one criminal transaction are 

duplicative"). Because here we do not have multiple counts of 

the same offense and armed assault with intent to rob is not a

lesser included offense of armed assault in a dwelling, we apply 

the traditional same elements test. See Vick, supra, citing 

Morey v. Commonwealth, 108 Mass. 433, 434 (1871). "[A] 

defendant may be properly punished for two crimes arising out of 

the same course of conduct provided that each crime requires 

proof of an element that the other does not." Vick, supra, 

quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).

The defendant's argument that these two convictions are 

duplicative fails because armed assault in a dwelling and armed 

assault with intent to rob both require proof of an element that 

the other does not -- entry into a dwelling while armed with a 

dangerous weapon and an intent to rob the person assaulted, 

respectively. While we recognize that the defendant's 

conviction of armed assault in a dwelling rested on proof of the 

defendant's specific intent to commit a robbery, "we consider 

only the elements of the crimes, not the facts to be proved or 

the evidence adduced to prove them." Vick, 454 Mass. at 431, 

quoting Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007). See 

Commonwealth v. Jones, 441 Mass. 73, 76 (2004) ("the elements of 

the crimes charged are considered objectively, abstracted from 
33

the facts [of the case]" [citation omitted]). For the purposes 

of our application of the same elements test involving a 

conviction of armed assault in a dwelling, we do not consider 

the felony that the defendant intended to commit. See People v. 

Miller, 498 Mich. 13, 19 (2015) (under legal elements test, "two 

offenses will only be considered the 'same offense' where it is 

impossible to commit the greater offense without also committing 

the lesser offense"). We therefore affirm the defendant's 

conviction of armed assault with intent to rob.

d. Joint venture jury instructions. The defendant further 

argues that a new trial is warranted because the judge 

erroneously instructed the jury on joint venture liability and 

allowed the jury to return a general verdict without requiring 

the jury to specify whether the defendant was guilty under 

principal liability or joint venture liability. At trial, the 

defendant objected to the jury instructions on joint venture, so 

we review the judge's instructions for prejudicial error. See 

Commonwealth v. Murphy, 442 Mass. 485, 508-509 (2004). He did 

not otherwise object to the verdict slip used, so we review any 

error with respect to the verdict slip for a substantial 

likelihood of a miscarriage of justice. See Wright, 411 Mass. 

at 681.

The trial judge informed the jury that "the Commonwealth 

claims that [the defendant] acted individually or as a joint 
34

venturer with . . . Brown in committing the offenses of murder, 

armed assault in a dwelling, armed assault with intent to rob, 

home invasion, and the firearm[s] charges." He then instructed

the jury on joint venture in accordance with the then current

Model Jury Instructions on Homicide 16 (2013) and our opinion in

Commonwealth v. Zanetti, 454 Mass. 449, 470 (2009) (Appendix).

The defendant argues that the jury instructions on joint 

venture were erroneous because it was possible, based on the 

instruction given, that the jury convicted him of merely being 

present at the time of the shooting. There was no error in the 

trial judge's joint venture instructions. He stated:

"Mere presence at the scene of the crime is not enough to 

find a defendant guilty. Presence alone does not establish 

a defendant's knowing participation in the crime, even if a 

person knew about the intended crime in advance and took no 

steps to prevent it. To find a defendant guilty, there 

must be proof that the defendant intentionally participated 

in some fashion in committing that particular crime and had 

or shared the intent required to commit the crime. It is 

not enough to show that the defendant simply was present 

when the crime was committed, or that she knew about it in 

advance."

The instructions adequately informed the jury that the 

Commonwealth must prove more than mere presence to convict the 

defendant. See Zanetti, 454 Mass. at 470 (Appendix).8

8 The defendant requests that we reconsider our holding 

Zanetti, 454 Mass. 449 (establishing modified test and jury 

instructions on joint venture). We decline to do so. See 

Commonwealth v. Miller, 486 Mass. 78, 94 n.6 (2020).
35

Nor did the judge err in supplying a general verdict slip 

to the jury. In Zanetti, 454 Mass. at 466-467, we issued the 

following guidance for trial judges when instructing the jury on 

joint venture liability:

"(1) instruct the jury that the defendant is guilty if the 

Commonwealth has proved beyond a reasonable doubt that the 

defendant knowingly participated in the commission of the 

crime charged, alone or with others, with the intent 

required for that offense; (2) continue to permit the trial 

judge to furnish the jury with a general verdict even when

there is differing evidence that the defendant committed 

the crime as a principal or as an accomplice; and (3) on 

conviction, examine whether the evidence is sufficient to 

permit a rational juror to conclude beyond a reasonable 

doubt that the defendant knowingly participated in the

commission of the crime charged, with the intent required 

to commit the crime."

Id. Thus, the Commonwealth "need not establish a defendant's 

precise role in the crime, i.e., whether the defendant acted as 

a principal or accomplice," Commonwealth v. Bonner, 489 Mass. 

269, 277 (2022), only that the defendant knowingly participated 

in the commission of the crime charged with the required 

criminal intent. See Commonwealth v. Watson, 487 Mass. 156, 162 

(2021), citing Zanetti, supra at 467. The defendant concedes 

that there was sufficient evidence of his involvement in the 

shooting as either a joint venturer or a principal. There is no 

basis, therefore, to grant a new trial on these grounds.

e. Defendant's firearms convictions. The defendant 

requests that we vacate his convictions of unlawful possession 

of a firearm and unlawful possession of a loaded firearm in 
36

light of our recent decision in Guardado, 491 Mass. 666. In 

that case, we held that the due process clause and the Second 

Amendment to the United States Constitution require the 

Commonwealth to bear the burden of disproving that a defendant 

had a license to possess a firearm when prosecuting a defendant 

for unlawful possession of a firearm, and the jury instructions 

must relay this burden. Id. at 692-693. Where the jury is not 

instructed on this burden, and where there is no record evidence 

on the lack of license, the defendant is entitled to vacatur of 

the conviction. See id. at 692-694. The holding in that case 

applies prospectively "and to those cases that were active or 

pending on direct review as of the date of the issuance of [New 

York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 

(2022)]." Id. at 694. As the defendant's direct appeal was 

pending at the time of the issuance of Bruen on June 23, 2022,

he is entitled to the benefit of our decision in Guardado.

The trial judge's jury instruction on the charge of 

unlawful possession of a firearm was as follows:

"In order to prove the defendant guilty of [unlawful 

possession of a firearm], the Commonwealth must prove three 

things beyond a reasonable doubt: first, that the 

defendant possessed an item; second, that the item meets 

the legal definition of 'firearm'; and third, that the 

defendant knew that he possessed that firearm."

There was no instruction that required the Commonwealth to 

disprove that the defendant had a license to possess a firearm. 
37

Further, after a review of the record, evidence of the 

defendant's lack of license never was introduced at trial. 

Thus, the defendant's conviction of unlawful possession of a 

firearm must be vacated. Because unlawful possession of a 

loaded firearm under G. L. c. 269, § 10 (n), "is not an 

independent charge but, rather, 'constitute[s] further 

punishment of a defendant who also [has] been convicted under 

G. L. c. 269, § 10 (a),'" the defendant's conviction of unlawful 

possession of a loaded firearm also must be vacated. See 

Guardado, 491 Mass. at 670 n.4, quoting Commonwealth v. Tate, 

490 Mass. 501, 520 (2022).

f. Review under G. L. c. 278, § 33E. Pursuant to our duty 

under G. L. c. 278, § 33E, we have conducted a thorough review 

of the entire record and discern no basis upon which to exercise 

our extraordinary authority to order a new trial or to reduce 

the verdicts.

3. Conclusion. The defendant's convictions of murder in 

the first degree, home invasion, and armed assault with intent 

to rob, and the order denying his motion for a new trial, are 

affirmed. The conviction of armed assault in a dwelling is 

vacated, and the charge shall be dismissed. The convictions of 
38

unlawful possession of a firearm and unlawful possession of a 

loaded firearm are also vacated.9

So ordered.

9 The issue whether retrial shall be permitted on the 

firearms convictions vacated pursuant to Guardado, 491 Mass. 

666, is currently pending before this court and is scheduled for 

oral argument in September 2023. See Commonwealth vs. Guardado, 

No. SJC-13315. The rescript in this opinion shall be stayed 

pending our decision in that case.