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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.
