Commonwealth v. Foster, SJC–11596.
| Decision Date | 15 April 2015 |
| Docket Number | SJC–11596. |
| Citation | 28 N.E.3d 427,471 Mass. 236 |
| Parties | COMMONWEALTH v. Stephen FOSTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dana Alan Curhan, Boston, for the defendant.
Sebastian Jose Pacheco, Assistant District Attorney (David B. Mark, Assistant District Attorney, with him) for the Commonwealth.
Present: GANTS, C.J., CORDY, DUFFLY, LENK, & HINES, JJ.
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 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 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, 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. 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 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 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. 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 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...
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