Commonwealth v. Foster, 471 Mass. 236

Indicted in December 2009 for first‑degree murder, armed robbery, receiving stolen property, and carrying a firearm without a license for the shooting death of Hegazy Sayed.
May 2012, defendant moved to suppress evidence from a search warrant executed at his room in a so‑called sober house; suppression motion was denied and trial proceeded.
Superior Court judge dismissed the firearm without license and receiving stolen property charges; a jury convicted defendant of first‑degree murder (premeditation and felony murder theories) and armed robbery; armed robbery conviction remained subject to sentencing if murder reversal occurred.
On appeal, defendant contends the search warrant lacked probable cause and nexus to the room; also seeks relief under G. L. c. 278, § 33E, arguing for a reduced verdict.
Court affirms the murder conviction on both theories, resolves the armed robbery issue by reinstating the conviction, and remands for sentencing on the reinstated armed robbery conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Probable cause and nexus for the search warrant	Foster argues no probable cause and no nexus to his room.	Commonwealth asserts sufficient probable cause and nexus given items and statements tying to the crime.	Probable cause and nexus existed; warrant valid.
Armed robbery conviction as duplicative	State argues dismissal was correct as duplicative of felony‑murder.	Convictions based on multiple theories; not duplicative.	Not duplicative; armed robbery reinstated.
Relief under G. L. c. 278, § 33E	Ask for reduction to lesser degree due to alleged mitigating factors.	Mental/physical impairments cited but do not warrant reduction.	No reduction; verdict of murder in the first degree affirmed.
Evidence sufficiency for murder verdict (premeditation and felony‑murder)	Evidence supports a just conclusion beyond reasonable doubt.	Mitigating conditions suggest lesser degree of guilt could be appropriate	Record supports first‑degree murder under both theories; no reconsideration of verdict.

Commonwealth v. Valerio, 449 Mass. 562 (Mass. 2007) (probable cause standards for warrant applications and nexus in residence searches)
Commonwealth v. O'Day, 440 Mass. 296 (Mass. 2003) (probable cause evaluation within four corners of affidavit)
Commonwealth v. Escalera, 462 Mass. 636 (Mass. 2012) (nexus requirement for residence searches)
Commonwealth v. Tapia, 463 Mass. 721 (Mass. 2012) (establishing nexus for searches of premises)
Commonwealth v. Donahue, 430 Mass. 710 (Mass. 2000) (probable cause and nexus considerations in warrant affidavits)
Commonwealth v. Hanright, 466 Mass. 303 (Mass. 2013) (felony‑murder rule and liability standards)
Commonwealth v. Felder, 455 Mass. 359 (Mass. 2009) (duality of theories in murder cases and underlying felonies)
Commonwealth v. Brum, 441 Mass. 199 (Mass. 2004) (non‑duplicative conviction when multiple theories exist)