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Commonwealth v. Foster

Supreme Judicial Court of Massachusetts, Bristol

April 15, 2015

Commonwealth
v.
Stephen Foster

Argued November 7, 2014.

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.

Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.

OPINION

[28 N.E.3d 429] Duffly, J.

In December, 2009, the defendant was indicted on charges of murder in the first degree, armed robbery, receiving

Page 237

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 [28 N.E.3d 430] 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

Page 238

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 [28 N.E.3d 431] 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 ...


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