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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 felonymurder; 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.