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SJC-11596
COMMONWEALTH vs. STEPHEN FOSTER.
Bristol. November 7, 2014. - April 15, 2015.
Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.
Homicide. Robbery. Felony-Murder Rule. Probable Cause. Search
and Seizure, Probable cause, Warrant, Affidavit. Practice,
Criminal, Capital case, Motion to suppress, Warrant,
Affidavit, Duplicative convictions.
Indictments found and returned in the Superior Court
Department on December 11, 2009.
A pretrial motion to suppress evidence was heard by Renee P.
Dupuis, J., and the cases were tried before Robert J. Kane, J.
Dana Alan Curhan for the defendant.
Sebastian Jose Pacheco, Assistant District Attorney (David
B. Mark, Assistant District Attorney, with him) for the
Commonwealth.
DUFFLY, J. In December, 2009, the defendant was indicted on
charges of murder in the first degree, armed robbery, receiving
stolen property, and carrying a firearm without a license, in the
shooting death of Hegazy Sayed. In May, 2012, the defendant
filed a motion to suppress evidence seized pursuant to a search
2
warrant from his room in a "sober house." After an evidentiary
hearing that took place in eight nonconsecutive days over the
course of one year, the motion was denied, and the case proceeded
to trial before a different judge of the Superior Court. The
defendant's motion for a required finding of not guilty was
denied. Before submitting the case to the jury, the judge
dismissed the charges of carrying a firearm without a license and
of receiving stolen property. A Superior Court jury found the
defendant guilty of murder in the first degree on theories of
deliberate premeditation and felony-murder, and also found the
defendant guilty of armed robbery. The armed robbery conviction
was dismissed subject to being reviewed for sentencing if the
murder conviction were reversed on appeal.
On appeal, the defendant argues that the motion judge erred
in denying his motion to suppress evidence seized from his
residence pursuant to a search warrant, and all other evidence
seized as a result of that initial search, because there was no
probable cause that he was the perpetrator, and also because,
even if there were evidence of his involvement in the robbery and
killing, no nexus was established to show that evidence of the
crimes would be found in his room. The defendant also requests
that we exercise our authority to provide relief pursuant to
G. L. c. 278, § 33E. Although the defendant concedes that the
3
evidence was sufficient to support his convictions, he argues
that a reduction in the verdict would be more consonant with
justice. We affirm the convictions,1 and discern no reason to
reduce the verdict of murder to a lesser degree of guilt or to
grant a new trial.
Background. We summarize the facts the jury could have
found, reserving certain facts for later discussion.
1. The shooting. At approximately 9:55 P.M. on October 25,
2009, Rosemary Alicea and Veronica Ponte stopped to purchase
cigarettes at a convenience store and gasoline station in
Taunton, where Alicea was a frequent customer. The attendant,
the victim, came over to their vehicle, which was stopped near
the front door. As was his usual practice, he assisted Alicea
with purchases of items inside the store, while she remained in
her vehicle.2 Alicea requested two packages of a specific brand
of cigarette, and the victim returned with only one package,
1
The predicate offense for the felony-murder was the armed
robbery. The judge dismissed the armed robbery conviction as
duplicative, subject to reinstatement if the felony-murder
conviction were reversed. Because the defendant was convicted of
murder on theories of premeditation and felony-murder, the
conviction of armed robbery should not have been dismissed. See
Commonwealth v. Brum, 441 Mass. 199, 200 n.1 (2004) ("where, as
here, the conviction of murder is based on a theory in addition
to the theory of felony-murder, the conviction of the underlying
felony stands"). See part 2 of the discussion section, infra.
2
The victim usually carried a large amount of cash with him
when while he was working. He kept a stack of bills folded in
half in his pocket.
4
stating that it was the last one in the store.
A few minutes later, Neusa Marques, another regular customer
at the convenience store, drove into the parking lot and stopped
near the pumps. She saw a man wearing neon orange pants and a
black sweater standing in the doorway to the store; he was
standing with his back to the entrance, holding his arms straight
out in front of him and appeared to have something in his hands.
Marques did not see the regular attendant, who usually came out
of the store and over to the pumps to assist customers. She
thought immediately that something was wrong. She drove over the
sidewalk rather than out the driveway, to get away from the
parking lot as quickly as she could, and then "sped home" to her
mother's house, which was about two or three minutes' drive from
the convenience store.
Shortly after Marques left, two other regular customers,
Kyle Swensen and Jared Kimball, drove into the convenience store
parking lot. After they had been waiting at the pumps for the
attendant for about ten minutes, Swensen went into the store and
found the victim, whom he recognized, on the floor behind the
counter; his eyes were open, his face was covered in blood, and
he was lying in a pool of blood. He appeared to be dead.
Swensen ran outside and telephoned 911, and then he and Kimball
went back inside. They both thought that the victim was dead.
5
While Swensen and Kimball were waiting for emergency personnel,
several other cars pulled into the parking lot. A young woman
who had arrived went into the store, took the victim's pulse, and
walked out.
Emergency medical personnel arrived within minutes and began
treating the victim. He was not breathing but he had a faint
pulse. They transported the victim to the hospital, where he was
pronounced dead. An autopsy established that he died as a result
of gunshot wounds to the right side of his head and to his face.
2. The investigation. Police officers investigating the
shooting used a police dog to search a swampy, wooded area behind
the convenience store. At approximately 3 A.M. on October 26,
2009, five hours after the shooting, police found a number of
items in the wooded area that appeared related to the shooting.
These included a pair of white, size eleven Nike sneakers, one of
which was stuck in some mud; a pair of nylon pants that were
orange on the inside and blue on the outside; a green camouflage
rifle bag; a firearm lock and instructions, a set of keys, and a
container for the lock; a single .22 caliber bullet; and a
Winchester Wildcat .22 caliber rifle. There was also a loaded
magazine containing live ammunition in one of the pants pockets.
Police found a spent shell casing inside the store and a live
round on the ground immediately outside the store. Later testing
6
showed that the spent shell casing probably had been fired from
the Winchester rifle, the weapon that had been used to kill the
victim.3 The weapon had been stolen from a Taunton home on
October 19 or 22, 2009.4
The owner of the convenience store was contacted, examined
the store, and determined that $1,041 was missing. He provided
police with copies of the store's surveillance videotapes; the
tapes showed a suspect entering the store holding a long object,
and then running from the store, apparently moments after the
shooting. Police were unable to obtain an image of the suspect's
face due to the poor quality of the recording and the angle of
the camera; they were able to determine that the suspect was a
male wearing light-colored shoes and a dark sweatshirt or similar
top of a dark color.
Approximately one hour after the shooting, at 11:07 P.M.,
emergency medical technicians (EMTs) -- one of whom had treated
3
To fire the Winchester Wildcat .22 caliber rifle requires
that the rifle be loaded manually with a magazine containing
cartridges. A cartridge is seated in the chamber by manually
sliding the bolt forward, pushing a round into the chamber. At
that point, if the safety is off and the trigger is depressed, a
single shot will fire. The weapon will not fire again until the
manual bolt action is repeated.
4
Four days before the shooting, a Taunton resident had
reported to police that on October 19, 2009, a Winchester rifle,
rifle bag, and firearm lock and container, with a key and
instructions, had been taken from his home while he was away.
Some rare coins, a silver ingot, and some jewelry also were
taken.
7
the victim earlier that evening -- responded to a call from a
rooming house on Broadway Avenue in Taunton. There they
encountered the defendant, sitting on the front stairs waiting
for them. Although the EMTs could see no obvious injuries, the
defendant reported that he had been assaulted and had been hit on
the side and back of his head. The defendant climbed into the
back of the ambulance without assistance, and was transported to
the hospital, which was approximately 200 feet from the rooming
house. En route, the defendant told the EMTs that two men "beat
him up" and that they had forced him to touch a gun. The EMTs
asked the defendant if he had lost consciousness during the
assault, and he replied that he had not been "knocked out" and
had not lost consciousness at any point. The EMTs saw no signs
of injury, trauma, or abrasions.5 After they completed the
transport to the hospital, one of the EMTs telephoned police.
The defendant told an emergency room doctor that he had been
assaulted and hit in the head, and that he had lost consciousness
and had been "out cold." The doctor observed no signs of trauma
or injury, but ordered a computerized tomography (CAT) scan of
the defendant's brain. The CAT scan showed no injury.
Police arrived at the hospital and spoke with the defendant.
5
As a precautionary measure, the defendant was later
discharged from the hospital with aftercare instructions for a
closed-head injury.
8
He told them that, at approximately 8:30 P.M. that evening, he
had been outside his house smoking when two men approached him.
They asked him if he wanted to purchase a gun, and he asked to
see it. One of the men handed him a camouflage duffle bag; he
took the gun out of the bag and examined it. The gun looked like
it was a BB gun and one of the metal parts was rusting. When the
defendant told the men that he did not want to purchase the gun,
they punched him in the side of the head, knocking him to the
ground, and kicked him. They removed his white, size eleven Nike
sneakers and blue nylon parachute pants, ripped his shirt, took
the items of clothing, and left him in the bushes. In his
statement to police at the hospital, the defendant described one
of the men as between five feet, eight inches and five feet,
eleven inches tall, and either Hispanic or African-American. He
was wearing a camouflage jacket and dark pants. The second man
was Caucasian, and shorter and heavier than the other. One of
the men called the other man "Ray." The defendant thought he
would be able to identify both men. He lost consciousness and
was very cold when he woke up. He attempted to telephone his
girl friend for help; when she did not answer, he called 911 for
emergency medical help.
The officers suspected that the defendant had been involved
in the shooting at the convenience store. In the early morning
9
hours of October 26, 2009, they had his hands and clothing tested
for gunshot residue; the test results were negative. Later that
day, police obtained a warrant to search the defendant's room in
the boarding house. Under the defendant's mattress, they found
jewelry, and the silver ingot and coins that had been reported
stolen during the two break-ins at the house in Taunton on
October 19 and 22, 2009.
Police subsequently learned that, at a few minutes after
10 P.M. on the night of the shooting, the defendant had gone to a
pharmacy where he was a well-known customer. The pharmacy was
very near the convenience store. Another customer and a clerk
working at the pharmacy noticed that the defendant was not
wearing shoes and that his socks were muddy. The defendant
purchased a pair of slippers; when he paid for the purchase, he
appeared to be holding a large amount of money.
Discussion. 1. Whether there was probable cause to issue a
search warrant. The defendant claims that the evidence proffered
in the search warrant affidavit was insufficient to establish
probable cause that he had committed the robbery or the shooting,
or that evidence related to those crimes would be found in his
room. He argues that, at most, police had a "hunch" that he
might have known something about the shooting, or have had some
involvement in it, but that they lacked probable cause to believe
10
the defendant was the shooter. He argues also that, even if
there were probable cause to believe he had been involved in the
shooting, officers had no reason to think that any evidence
related to the shooting would be found in his room, in what he
described as a "sober house," where he contends that residents'
activities were closely monitored.
Under both the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights, a search warrant may issue only upon a showing of
probable cause. See Commonwealth v. Valerio, 449 Mass. 562, 566
(2007). A determination whether there was probable cause to
issue a search warrant is restricted to an examination of the
information within the four corners of the affidavit in support
of the warrant, and the reasonable inferences to be drawn
therefrom. See Commonwealth v. O'Day, 440 Mass. 296, 297-298
(2003). Where the location to be searched is a residence,
probable cause exists only if there is specific information in
the search warrant affidavit to show a "sufficient nexus" between
the criminal activity and the residence. Commonwealth v.
Escalera, 462 Mass. 636, 642 (2012). In order to satisfy the
"nexus" requirement, "the affidavit 'must provide a substantial
basis for concluding that evidence connected to the crime will be
found on the specified premises.'" Commonwealth v. Tapia, 463
11
Mass. 721, 726 (2012), quoting Commonwealth v. Donahue, 430 Mass.
710, 712 (2000). "Strong reason to suspect is not adequate."
Commonwealth v. Upton, 394 Mass. 363, 370 (1985). Because a
determination of probable cause is a conclusion of law, we review
a search warrant affidavit de novo. Commonwealth v. Long, 454
Mass. 542, 554-555 (2009).
We do not agree that the warrant affidavit here was
insufficient to establish probable cause. "In dealing with
probable cause, . . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act." Commonwealth v. Kaupp,
453 Mass. 102, 111-112 (2009), quoting Draper v. United States,
358 U.S. 307, 313 (1959), quoting Brinegar v. United States, 338
U.S. 160, 175 (1949). The affidavit, written by a Taunton police
detective, recites the events of the shooting and notes the
items, including the rifle, green bag, white size eleven Nike
sneakers, nylon pants, and the money recovered from the swampy
area behind the convenience store. It details the defendant's
statement to police, while he was being treated at the hospital
for the purported assault, concerning the rifle in a green bag
that he had handled after being shown it by the two assailants,
and the white size eleven Nike sneakers, "parachute pants," and
12
other items of clothing the defendant reported had been stolen
from him. The defendant's improbable story concerning the very
items that police found near the scene of the shooting, his
telephone call to be transported to a hospital that was only a
very brief walk from his house, his inconsistent claims
concerning his loss of consciousness coupled with his apparent
lack of injury, and his inconsistent statements to police, as set
forth in the affidavit in support of the warrant, provided
probable cause that the defendant had been involved in the
shooting.
In support of his argument that it is "questionable" whether
evidence related to the offenses at issue could have been brought
into his rooming house, given "the supervision and peer
monitoring that takes place in such residences," the defendant
relies on the description of the "sober housing model" in
Massachusetts Sober Housing Corp. v. Automatic Sprinkler Appeals
Bd., 66 Mass. App. Ct. 701, 702 (2006). The defendant does not
explain how that description, of a single-family dwelling owned
by the Massachusetts Sober Housing Corporation in another town,
Oxford, relates to what police witnesses described as the
"rooming house" where the defendant was living at the time of the
shooting. The warrant affidavit describes the building as a
"three story dwelling consisting of several apartments" with a
13
"common area allowing entrance to all apartments" from the front
door. The building has a large sign, approximately three feet by
three feet, labeling it "Bristol Lodging Sober House." The
defendant's apartment is noted as "apartment 4" on the first
floor, "facing the side door" as one enters the front door.
Assuming that the building is a "sober house," nothing in
the record describes its model of operation or any restrictions
placed on its residents. Moreover, even if the Oxford sober
housing model were applicable to the defendant's living
situation, nothing in the description of the operation of such
houses, or of the requirements that they be "democratically
operated," and "financially self-supporting," see id., and that
residents who use drugs or alcohol must be evicted, warrants an
inference that a resident of such a house would be unable to keep
items such as cash, clothing, ammunition, and weapons, the types
of evidence sought here, in his room. Nor does the defendant's
alternate argument that he only had been living in the building
for a few weeks negate the inference that the defendant could
have brought such evidence into his room. In particular, the
warrant specifically included "bloody clothing." Because police
knew that the defendant had been at his house after the shooting,
he could have had the victim's blood on his clothes, his person,
or any item he had with him at the scene and wore back to the
14
apartment. Although distinctive items of clothing and shoes had
been found earlier near the scene, other items, such as the socks
the defendant was seen wearing, without shoes, at the pharmacy
immediately after the robbery, were not found in the swamp behind
the convenience store.
2. Dismissal of armed robbery conviction. The judge stated
that he dismissed the conviction of armed robbery because he
believed he was required to do so given that the armed robbery
was the predicate felony underlying the conviction of felony-
murder; he stated also that the armed robbery conviction was
subject to reinstatement if the conviction of felony-murder were
reversed. Because the defendant was convicted of murder in the
first degree on theories of both premeditation and felony-murder,
the armed robbery conviction should not have been dismissed.
"The felony-murder rule 'imposes criminal liability for
homicide on all participants in a certain common criminal
enterprise if a death occurred in the course of that
enterprise.'" Commonwealth v. Hanright, 466 Mass. 303, 307,
(2013), quoting Commonwealth v. Matchett, 386 Mass. 492, 502
(1982). The felony-murder rule substitutes the intent to commit
an inherently dangerous felony, punishable by imprisonment for
life, for the "malice aforethought" required for murder; the rule
is one of "constructive malice." See Commonwealth v. Judge, 420
15
Mass. 433, 438-439 (1995), citing Commonwealth v. Moran, 387
Mass. 644, 651 (1982), quoting Commonwealth v. Matchett, supra.
To be liable for felony-murder, a defendant need only possess the
intent necessary for the underlying felony. Commonwealth v.
Hanright, supra.
Where a defendant is convicted of murder in the first degree
on a theory of felony-murder alone, and where the only felony
apart from the homicide is the predicate felony, the predicate
felony merges with the homicide. In such a circumstance, the
conviction of the predicate felony is duplicative as a lesser
included offense of the homicide, and must be dismissed. See
Commonwealth v. Gunter, 427 Mass. 259, 271-273 (1998). See also,
e.g., Commonwealth v. Benitez, 464 Mass. 686, 697 (2013);
Commonwealth v. Stokes, 460 Mass. 311, 316 & n.11 (2011);
Commonwealth v. Bell, 460 Mass. 294, 299-300 (2011).
By contrast, where, as here, a defendant is convicted of
murder in the first degree on a theory of felony-murder, and also
is convicted of murder in the first degree on another theory, and
where we affirm the convictions on both theories, the conviction
of the predicate felony is not duplicative, and the felony
conviction stands. See Commonwealth v. Bizanowicz, 459 Mass.
400, 402 (2011), citing Commonwealth v. Felder, 455 Mass. 359,
370-371 (2009); Commonwealth v. Brum, 441 Mass. 199, 200 n.1,
16
(2004).
3. Relief pursuant to G. L. c. 278, § 33E. Although he
concedes that the evidence was sufficient to support a verdict of
murder in the first degree, the defendant nonetheless requests
that we exercise our authority under G. L. c. 278, § 33E, to
reduce the verdict, arguing that a verdict of a lesser degree of
guilt would be more consonant with justice. In support of this
argument, the defendant points to a rare autoimmune disorder from
which he suffers that causes extensive nerve damage. The
defendant's condition was diagnosed in February, 2008, and
resulted in him being hospitalized for six months, three of them
in an induced coma, followed by eight months in a rehabilitation
facility where he had to relearn how to walk. The defendant
contends, and the record appears to support, that this condition
is ongoing and, as a result, he continues to suffer pain and
numbness and has difficulty walking. The defendant points also
to a mental health condition that resulted in his commitment to a
mental hospital for six months while he was awaiting trial, and
to a childhood history of severe abuse and neglect by alcoholic
parents and stepparents. Relying on Commonwealth v. Rolon, 438
Mass. 808, 821 (2003), the defendant maintains that this
combination of "physical and mental impairments" suggests that he
may not have been "fully functional," and may not have acted with
17
malice at the time of the killing.
The defendant was committed to Bridgewater State Hospital
pending trial after he made statements indicating that he
intended to kill himself, and that he had been gathering the
means by which he intended to do so. After evaluation, he was
found to be suffering from severe depression, which his treatment
providers believed would be ameliorated by individual and group
therapy to provide him with better coping mechanisms in the face
of stressful circumstances. Contrary to the defendant's
contention that this admission raises "at least some reason to
question" his mental state at the time of the killing, the
defendant's medical evaluations state that he was suffering from
situational depression due to his personal circumstances while
incarcerated pending trial. The evaluations indicate that the
defendant was, understandably, concerned about the possible
sentence of life imprisonment he faced, and saddened by his
inability to visit with his three year old son; the defendant
stated that during earlier incarcerations he had been able to
visit regularly with relatives, and missed that contact while
awaiting his murder trial. These evaluations suggest a rational
response to the defendant's circumstances, see Commonwealth v.
Goudreau, 442 Mass. 341, 349-352 (2004), rather than the
psychotic thought processes and illogical thinking the defendant
18
points to in Commonwealth v. Gould, 380 Mass. 672, 682 (1980).
"Even an entirely rational defendant would be depressed, and
might be suicidal, during a murder trial where the proof against
him is substantial, and where he is facing life imprisonment with
no possibility of parole." Commonwealth v. Laurore, 437 Mass.
65, 70B72, 79 (2002). See Commonwealth v. Russin, 420 Mass. 309,
316, 318 (1995). In any event, the defendant's mental state in
response to his incarceration does not bear on his mental state
at the time of the killing. The defendant did not claim
diminished capacity at trial, nor does he argue that counsel was
ineffective for having failed to do so.
In addition, and notwithstanding the defendant's contention,
the "thrust of the evidence" does not support a determination
that a lesser degree of guilt would be more appropriate.
Contrast Commonwealth v. Cadwell, 374 Mass. 308, 318-319 (1978),
quoting Commonwealth v. Jones, 366 Mass. 805, 808 (1975). The
defendant concedes that the evidence was sufficient to support
the verdict of murder in the first degree, and we conclude that
the verdict is consonant with justice. The evidence supports the
conclusion that, armed with a loaded rifle, the defendant went to
the convenience store intending to rob it, and that he twice,
deliberately and intentionally, shot the unarmed victim from the
doorway of the store, within eight seconds of arriving, before
19
fleeing with a little more than $1,000 in cash. He then
concocted a far-fetched story of two unknown assailants to
explain how clothing, ammunition, and a firearm used in the
robbery, which could be connected to him, came to be discarded in
the woods near the scene of the crime. Nothing in the evidence
suggests that the killing was the result of a "senseless brawl,"
Commonwealth v. Colleran, 452 Mass. 417, 431 (2008), quoting
Commonwealth v. Ransom, 358 Mass. 580, 583 (1971), "sudden . . .
combat," or a "minor controversy" that "explode[d] into" a
killing, Commonwealth v. Colleran, supra, quoting Commonwealth v.
Baker, 346 Mass. 107, 110, 119 (1963); that the victim was the
first aggressor, Commonwealth v. Colleran, supra at 431-432,
citing Commonwealth v. Baker, supra at 118; or provides any other
indication of circumstances supporting spontaneity rather than
premeditation, Commonwealth v. Williams, 364 Mass. 145, 151
(1973). See Commonwealth v. Colleran, supra, and cases cited.
Having carefully reviewed the entire record pursuant to our
duty under G. L. c. 278, § 33E, we discern no reason to reduce
the verdict of murder in the first degree or to order a new
trial.
Conclusion. The conviction of murder in the first degree is
affirmed. Because the defendant was convicted of murder on
theories of both premeditation and felony-murder, and because we
20
affirm on both theories, the conviction of armed robbery was not
duplicative, and should not have been dismissed. See
Commonwealth v. Bizanowicz, supra at 402, citing Commonwealth v.
Felder, supra at 370-371. The judge's order dismissing that
conviction is vacated, and the conviction is reinstated; we
remand to the Superior Court for sentencing on the reinstated
conviction. See Commonwealth v. Wood, 469 Mass. 266, 269, 294
(2014).
So ordered.