Commonwealth v. Combs , 480 Mass. 55 ( 2018 )

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SJC-11724
COMMONWEALTH vs. CURTIS COMBS.
Hampden. December 8, 2017. - July 5, 2018.
Present: Gants, C.J., Gaziano, Lowy, & Cypher, JJ.
Homicide. Accessory and Principal. Jurisdiction, Of crime.
Indictments found and returned in the Superior Court
Department on September 26, 2011.
The cases were tried before Richard J. Carey, J., and a
motion for a new trial, filed on August 31, 2015, was heard by
him.
Cathryn A. Neaves for the defendant.
David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
CYPHER, J. In September, 2011, a Hampden County grand jury
returned four indictments charging the defendant, Curtis Combs,
with murder in the first degree, G. L. c. 265, § 1; kidnapping,
G. L. c. 265, § 26; armed robbery, G. L. c. 265, § 17; and
2
assault by means of a dangerous weapon, G. L. c. 265, § 15A (b). 1
The Commonwealth alleged that the defendant either was the
principal or acted as part of a joint venture with Demery
"Manny" Williams 2 to rob and murder William Jones. The defendant
and Manny were tried separately, and we affirmed Manny's
convictions of murder in the first degree, armed robbery, and
assault and battery by means of a dangerous weapon. See
Commonwealth v. Williams, 475 Mass. 705, 706 (2016). At the
defendant's trial, the theory of defense was that he was not
involved in killing the victim and had only assisted Manny in
concealing the crime after the fact, by helping Manny dispose of
the victim's body in Connecticut. 3 The jury ultimately convicted
the defendant of murder in the first degree on the theories of
deliberate premeditation and extreme atrocity or cruelty, as
well as of assault and battery by means of a dangerous weapon. 4
1 The Commonwealth filed a nolle prosequi as to the
kidnapping charge before trial.
2 We refer to Demery "Manny" Williams as "Manny" to avoid
confusion with the victim, William Jones.
3 The defendant was not charged as an accessory after the
fact.
4 The judge sentenced the defendant to life imprisonment
without the possibility of parole on the murder conviction, and
refrained from imposing a separate sentence with respect to the
conviction of assault and battery by means of a dangerous
weapon, reasoning that it merged with the murder conviction.
3
The defendant appeals from the two convictions and from the
denial of his motion for a new trial. He claims that (1) the
evidence was insufficient to convict him of murder; (2) the jury
should have been instructed on accessory after the fact, even
though the defendant was not charged with being an accessory
after the fact; (3) errors in the prosecutor's closing argument
require a new trial; and that (4) we should exercise our power
under G. L. c. 278, § 33E, to reduce the verdict of murder in
the first degree or grant the defendant a new trial.
This case presents the exceedingly rare instance in which
the factual question "[w]hether a criminal act occurred within
the territorial boundaries of the Commonwealth, and thus whether
the Commonwealth has jurisdiction over the [defendant,]" is
legitimately in dispute. Commonwealth v. Gilbert, 366 Mass. 18,
28 (1974). Throughout trial, and as part of his motion for a
required finding of not guilty, the defendant argued that there
was insufficient evidence to prove beyond a reasonable doubt
that the victim was killed in Massachusetts. The judge denied
the motion, yet submitted the question of territorial
jurisdiction to the jury. Upon our review of the evidence, and
even after viewing that evidence in the light most favorable to
the Commonwealth, we agree with the defendant that the location
of the crimes -- whether they occurred in Massachusetts or
Connecticut (where the victim's body was found) -- remains too
4
speculative to sustain the jury's finding of guilt beyond a
reasonable doubt. "[T]here can be no doubt that [our courts
have] no power to try the defendant for crimes committed out of
State." Commonwealth v. DiMarzo, 364 Mass. 669, 671 (1974).
Lacking territorial jurisdiction over the prosecution, we are
required to reverse the defendant's convictions. 5
Facts. We recite the facts the jury could have found,
viewing the evidence in the light most favorable to the
Commonwealth, while reserving certain details for later
discussion. At approximately 10:20 A.M. on January 22, 2010,
Jones, the victim, picked up Manny from his place of work in
Hartford, Connecticut. 6 The victim was driving a white Saturn
Outlook sport utility vehicle (SUV) that he had rented the
previous day. Both men sold cocaine, and they had arranged a
drug deal. The plan also involved the defendant, Curtis Combs,
who Manny knew previously. 7 Despite being on probation in
5 This opinion has no effect on our decision upholding
Manny's convictions in Commonwealth v. Williams, 475 Mass. 705,
706 (2016). The coventurers were tried separately, and evidence
relevant to territorial jurisdiction was introduced at Manny's
trial that was not introduced in the defendant's trial. See
note 21, infra.
6 Manny sorted tomatoes at a processing plant for a produce
company. The job required him to wear latex gloves for sanitary
purposes.
7 Although the exact nature of the coventurers' relationship
is unclear, the defendant later told police that he knew Manny
from a barbershop in Hartford. Cellular telephone (cell phone)
5
Connecticut, which prohibited him from leaving that State, the
defendant was staying at his girl friend's apartment in
Springfield. The victim and Manny drove to the Springfield
apartment, arriving sometime shortly before 11 A.M. 8 The jury
could reasonably infer that the victim was alive when they
arrived at the Springfield apartment. 9 Around this time, Gustavo
Bautista returned home to the duplex that he owned on Florida
Street in Springfield. Bautista lived in the apartment located
on the right side of the house, and he rented the left-side
evidence shows that Manny and the defendant exchanged several
calls the night before and morning of January 22, 2010. In two
of these exchanges, Manny called the defendant immediately
before or after calling the victim, supporting an inference that
the defendant was also involved in the drug deal. There is no
evidence, however, that the defendant knew or exchanged calls
with the victim, or that he possessed any motive to kill the
victim.
8 At 10:40 A.M., Manny called the defendant, with Manny's
cell phone connecting to a tower alongside Interstate Route 91
somewhere between Hartford, Connecticut, and Springfield. Manny
called the defendant again at 10:48 A.M., at which point both
Manny's and the defendant's cell phones connected to towers in
the Springfield area.
9 The defense theory at trial was that Manny had killed the
victim before leaving Connecticut, and arrived at the
defendant's girl friend's apartment with the body. Viewing the
evidence in the light most favorable to the Commonwealth,
however, the jury could infer that the victim was still alive
when he and Manny arrived in Springfield. Testimony established
that the victim was driving a white Saturn Outlook sport utility
vehicle (SUV) when he and Manny left Hartford. In addition, the
defendant told police that Manny arrived at the apartment with a
friend, and that the defendant had let this friend into the
apartment to use the bathroom.
6
apartment to the defendant's girl friend. Immediately upon
returning home, Bautista heard the adjacent door of the left-
side apartment open and close. He looked out the front window
and saw the defendant in the front yard, signaling to Manny to
drive the SUV over the grass on the side of the house and around
to the back yard. 10
Bautista immediately went to the back of his house to see
what was happening. He witnessed Manny step out of the vehicle
and show the defendant something in the back seat. Bautista
could not see what it was, or whether there was anyone else in
the SUV (the windows were tinted), but both men appeared
"excited." Bautista saw only the defendant and Manny, and did
not know whether there was anyone else inside the left-side
apartment at the time. At this point Manny noticed Bautista
watching, and informed the defendant. Bautista asked the
defendant what was happening. The defendant, who was acting
"normal," said that his friend had come to pick up old
furniture. Bautista asked the men to use the driveway next
10Although Bautista did not specifically identify Manny as
the driver, the jury could reasonably infer that Manny was
driving the SUV at this time. The defendant later told police
that when Manny and his friend arrived, the defendant let the
friend go inside the apartment to use the bathroom. From this,
the jury could infer that when Bautista heard the door of the
left-side apartment open and close, he heard the victim entering
the defendant's girl friend's apartment. This would leave Manny
as the driver of the SUV.
7
time, and then left the duplex, leaving the defendant and Manny
behind the home with the SUV. 11
After spending approximately thirty minutes alone at the
apartment, at around 11:40 A.M., Manny and the defendant began
driving back toward Hartford. It is not clear whether the
victim was alive at this time. Manny traveled in the victim's
SUV, presumably with the victim or the victim's body, while the
defendant followed them in his mother's Pontiac Grand Prix
automobile. Cellular telephone records show that the defendant
and Manny exchanged two calls at 12:06 and 12:10 P.M., and at
this time both men were located in the Bloomfield, Connecticut,
area. 12
At some point during the period beginning when the victim
arrived in Springfield, and through the time that Manny and the
defendant were in Bloomfield, the victim was strangled to death
with a ligature. Manny and the defendant left the victim's body
in the back seat of the SUV, parked in the parking lot of a
Bloomfield retail store. Manny then got into the Grand Prix,
and the defendant drove him back to work in Hartford, where he
arrived approximately between 12:30 and 12:45 P.M. Once back,
11
Bautista testified that his exchange with the defendant
in the backyard lasted from four to five minutes.
12
A Massachusetts State trooper testified that the drive
from downtown Springfield to the police department in
Bloomfield, Connecticut, takes "[p]robably [thirty] minutes."
8
Manny showed his boss about $4,000 to $5,000 in cash, and said
that he had just sold a "kilo," but that the sale had taken
longer than expected because he had to show the buyer "how to
cook up the cocaine."
The victim's body was discovered the following evening by
members of the Bloomfield police department, lying face down
across the back seat of the SUV, which was parked in the store's
parking lot. Connecticut State police investigators processed
the SUV for evidence; they took swabs to be used for
deoxyribonucleic acid (DNA) testing, and collected dirt samples,
fibers, and latent prints from the interior and exterior of the
vehicle. DNA matching the defendant's profile was discovered on
the slide control lever of the rear driver's side seat, used to
move the seat forward and backward. Investigators also found a
torn piece of white latex glove on the floor that revealed a
mixed sample of DNA matching the profiles of Manny and the
victim. In addition, investigators located dirt and debris on
the floor near the rear passenger's side door.
The defendant gave multiple statements to police. In his
first statement on February 2, 2010, the defendant denied
knowing Manny or the victim, and said that he had not left
Hartford because he was on probation and could not leave
Connecticut. Later that evening he gave a second statement, in
which he admitted that he had in fact been in Springfield. The
9
defendant also acknowledged that he knew Manny from a Hartford
barbershop. He told the police that Manny had visited him in
Springfield, and had brought a friend -- an unidentified
African-American male -- driving the SUV. The defendant said
that he let this friend inside the apartment to use the
bathroom. Then, according to the defendant, Manny and his
friend got into the SUV and drove to a retail store in West
Springfield. The defendant said that he followed them in the
Grand Prix. According to the defendant, the three stayed at the
retail store for twenty minutes, and then drove on the highway
toward Hartford, stopping at two restaurants along the way. The
defendant said that while they were leaving the second
restaurant, Manny called him and asked for a ride, because
Manny's friend was going elsewhere and Manny needed to return to
work. The defendant then picked up Manny and drove him back to
work in Hartford. 13
Sufficiency of the evidence. At the close of the
Commonwealth's case, the defendant moved for a required finding
of not guilty, arguing (in part) that there was insufficient
13The defendant gave a third statement to members of the
Massachusetts State police on July 27, 2011. Earlier that
month, a State trooper was assigned to help Connecticut State
police in the investigation of the victim's death. In this
statement, the defendant repeated his explanation that Manny had
brought a friend to visit him in Springfield, and that he had
let Manny's friend inside the apartment to use the bathroom.
10
evidence for a jury to conclude that the murder had occurred in
Massachusetts. 14 Although the defendant's motion was denied, the
judge subsequently instructed the jurors that in order to find
the defendant guilty and punishable in Massachusetts, they must
find beyond a reasonable doubt that the defendant's
"Massachusetts conduct . . . led to the victim's death." 15
"It is elementary that it must be shown that jurisdiction
lodged in the courts of Massachusetts before the defendant can
be found guilty of the offence charged." Commonwealth v.
Fleming, 360 Mass. 404, 406 (1971). See Vasquez, petitioner,
428 Mass. 842, 848 (1999) ("The general rule, accepted as
14The defendant also challenged the sufficiency of the
evidence that there was a joint venture between the defendant
and Manny, and that the defendant had committed assault and
battery or armed robbery.
15The judge read to the jury the language of G. L. c. 277,
§ 62, which confers on the Commonwealth jurisdiction to hear
certain cases of homicide where it is uncertain whether the
homicide occurred within Massachusetts. It states in relevant
part: "If a mortal wound is given, or if other violence or
injury is inflicted . . . in any county of the commonwealth, by
means whereof death ensues without the commonwealth, the
homicide may be prosecuted and punished in the county where the
act was committed." We have interpreted the statute to require
that the Commonwealth establish that "the death [was] one that
would not have occurred but for the violence or injury that was
inflicted in Massachusetts." Commonwealth v. Lent, 420 Mass.
764, 768-769 (1995), citing Commonwealth v. Travis, 408 Mass. 1,
8-10 (1990). The judge further instructed the jury that with
respect to the additional charges of armed robbery and assault
by means of a dangerous weapon, "the Commonwealth must prove
that the entire crime occurred within Massachusetts . . . beyond
a reasonable doubt."
11
'axiomatic' by the courts in this country, is that a State may
not prosecute an individual for a crime committed outside its
boundaries"). It is our practice that where there is a genuine
factual dispute as to whether a crime was committed within
Massachusetts, as here, that issue is to be submitted to the
jury in the form of an instruction. "'Whether a criminal act
occurred within the territorial boundaries of the Commonwealth,
and thus whether the Commonwealth has jurisdiction over the
individual charged with that act, is a question of fact to be
settled by proof.' . . . As such, it is an issue entrusted to
the deliberative process of the jury." Commonwealth v. Travis,
408 Mass. 1, 8, quoting Gilbert, 366 Mass. at 28. See 1 W.R.
LaFave, Substantive Criminal Law § 4.1(b), at 354-355 (3d ed.
2018) ("At least when the matter has been put into issue by the
defendant, whether the prosecuting government actually has
criminal jurisdiction over the conduct of the defendant is,
under the prevailing view, a matter to be determined by the
trier of fact" [footnote omitted]). Contrast Commonwealth v.
Jaynes, 55 Mass. App. Ct. 301, 308-310 (2002) (no jurisdictional
instruction required where evidence made it "not reasonable nor
possible to assume that the victim was not forcibly confined or
murdered in Massachusetts"); Commonwealth v. Adelson, 40 Mass.
App. Ct. 585, 589-590 (1996). Where territorial jurisdiction is
a triable issue, the Commonwealth's burden of proof is the same
12
as it is for the substantive elements of the crime(s) charged,
that being proof beyond a reasonable doubt. See, e.g., DiMarzo,
364 Mass. at 672-673. And on appeal, we consider whether there
was sufficient evidence for a finding beyond a reasonable doubt
of territorial jurisdiction. Id.
In these circumstances, we treat territorial jurisdiction
as if it is an element of the offense. Our review of the legal
sufficiency of the evidence is made with specific reference to
the substantive elements of the offense. See Jackson v.
Virginia, 443 U.S. 307, 324 n.16 (1979); Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979). Our standard in
Latimore is derived from the United States Supreme Court's
decision in Jackson. See Latimore, supra. This is typically
expressed as deference to the jury or fact finder's judgment
regarding the sufficiency of the evidence when, "after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt" (emphasis in original).
Id. at 677, quoting Jackson, supra at 319.
Proof of an essential element of a crime may be based on
reasonable inferences drawn from the evidence, but it may not be
based on conjecture. See, e.g., Commonwealth v. Gonzalez, 475
Mass. 396, 407 (2016). "[I]t is not enough for the appellate
court to find that there was some record evidence, however
13
slight, to support each essential element of the offense; it
must find that there was enough evidence that could have
satisfied a rational trier of fact of each such element beyond a
reasonable doubt." Latimore, 378 Mass. at 677-678.
The Commonwealth's case against the defendant consisted for
the most part of inferences drawn from circumstantial evidence.
Of course, "evidence of a defendant's guilt may be primarily or
entirely circumstantial." Commonwealth v. Lao, 443 Mass. 770,
779 (2005), citing Corson v. Commonwealth, 428 Mass. 193, 197
(1998). Indeed, cases built entirely on circumstantial evidence
are often strong. See, e.g., Commonwealth v. Fitzpatrick, 463
Mass. 581, 590-594 (2012). The inferences drawn from such
circumstantial evidence "need only be reasonable and possible
and need not be necessary or inescapable." Commonwealth v.
Fernandes, 478 Mass. 725, 739 (2018), quoting Commonwealth v.
Linton, 456 Mass. 534, 544 (2010). See Lao, supra, quoting
Commonwealth v. Giang, 402 Mass. 604, 609 (1988) ("Whether an
inference is warranted or is impermissibly remote must be
determined, not by hard and fast rules of law, but by experience
and common sense"). Still, a conviction may not "rest upon the
piling of inference upon inference or conjecture and
speculation." Commonwealth v. Mandile, 403 Mass. 93, 94 (1988).
See Commonwealth v. Kelley, 359 Mass. 77, 88 (1971) ("no
14
essential element of the crime may rest in surmise, conjecture,
or guesswork").
The Commonwealth's theory of the case was that the victim
was strangled inside the defendant's girl friend's apartment in
Springfield. All of the victim's injuries in this case were,
according to the testimony of the substitute medical examiner,
consistent with the ligature strangulation that caused the
victim's death. The examiner testified that it typically takes
from four to five minutes to die in this manner. 16 The
jurisdictional question, therefore, is whether the Commonwealth
submitted to the jury sufficient evidence of the defendant's
strangulation in Springfield. Stated more formally, we must
consider whether, viewing the evidence in the light most
favorable to the Commonwealth, any rational trier of fact could
have found beyond a reasonable doubt that the victim was
strangled in the Springfield apartment. Latimore, 378 Mass. at
677. 17
16
Although the trial transcript reads "forty minutes,
forty-five minutes," this appears to be a typographical error;
the prosecutor argued in closing that it took "four minutes" for
the victim to die.
17
In opposing the defendant's motion for a required finding
of not guilty, the Commonwealth argued that "based on telephone
records, map and the main contact at the time the victim was
picked up in Connecticut, brought down to Massachusetts, the
[d]efendant's statements that said, [d]efendant's statements say
brought a gun with him, and his wife brought him in the house,
there were no phone calls during that period of time . . . .
15
Viewing the evidence in the light most favorable to the
Commonwealth, a rational juror could infer the following: the
defendant was part of a plan that involved Manny, the victim,
and a drug deal; the victim was alive when he arrived with Manny
at the defendant's girl friend's Springfield apartment; the
victim was alone at the apartment with Manny and the defendant
for approximately thirty minutes; and while traveling from
Springfield to Hartford, the defendant and Manny stopped briefly
in Bloomfield, where they left the victim's body inside the SUV.
In addition, the jury heard evidence that the defendant had
initially lied to investigators about being in Springfield on
the day of the killing. These facts do not resolve the
essential question of where the victim was killed. Beyond the
above facts, the Commonwealth cites two additional points -- the
positioning of the victim's body in the SUV, and the absence of
dirt on the victim's shoes -- to support the inference that the
victim was killed in Springfield.
[T]here was contact between them going up to Massachusetts, that
this [d]efendant's DNA, the form of [Manny's] DNA, the victim's
shoes, shows there is a lot of evidence that would show that he
went into the house and was carried out and put, stuffed in an
SUV, that the death occurred in Massachusetts" (emphasis added).
The Commonwealth has not provided us a transcript reference
showing that the jury heard that the defendant had a gun or that
Manny had brought a gun with him, and we have not found any such
evidence in the record.
16
Regarding the first point -- the positioning of the
victim's body -- the Commonwealth focuses on the testimony of
the substitute medical examiner, who testified that in light of
the size of the petechial hemorrhaging in the victim's eyes, he
"might have been in the face down position" when strangled. The
medical examiner testified further that the lividity pattern on
the back of the victim's neck suggested that he was placed on
his back after he died. 18 In addition, the victim was found
lying on his stomach in the SUV. The Commonwealth contends that
these facts support an inference that the victim was not killed
in the SUV but, rather, was placed there only after being killed
in Springfield. Critically, the Commonwealth did not elicit
testimony from the substitute medical examiner as to how long it
takes for a lividity pattern to form. It remains uncertain,
then, for how long the victim may have been on his back before
being placed on his stomach. Although these facts support an
inference that the victim's body was moved in some manner at
some point after he died, they do not establish where that
occurred, let alone establish beyond a reasonable doubt that the
18The substitute medical examiner testified that bruising
on the victim's neck "could be part of the lividity pattern."
As for how a lividity pattern forms, she explained: "After
death where the heart stops circulating, the red blood cells
will be pulled right down to its lowest position, so if you were
lying on your back, the red blood cells would go to the back of
your body and cause a pinkish reddish discoloration."
17
victim was killed in Springfield. On this evidence, no rational
trier of fact could have found beyond a reasonable doubt that
the victim was strangled inside the Springfield apartment. 19
The second fact that the Commonwealth cites to support
territorial jurisdiction -- the absence of dirt on the victim's
shoes -- establishes even less. The victim's shoes had no dirt
on them when the police discovered his body, but police found
dirt on the floor of the backseat of the SUV. In addition,
Bautista stated that the weather "wasn't that cold or anything
for January," that "the temperature was very nice," and that
there was no snow on the ground. During cross-examination of
Bautista, defense counsel introduced a photograph of the back
yard of the Springfield apartment, which showed a mix of green
and brown patches. The Commonwealth suggests that a jury could
infer from these facts that (1) the back yard of the Springfield
19Although the substitute medical examiner testified that
it would have taken from four to five minutes for the victim to
die, she did not offer an estimation as to when the victim died
or for how long the victim had been dead. Contrast Commonwealth
v. DiMarzo, 364 Mass. 669, 672 (1974) ("A medical examiner
testified at length and placed the time of death as being within
seventy-two hours of the time of the autopsy . . ."). The SUV's
windows were tinted, and it is not clear precisely how long
Manny and the defendant were in Bloomfield. Cell phone records
show that Manny and the defendant were in Bloomfield by 12:06
P.M.; Manny's supervisor testified that Manny returned to work
"around 12:30 to 12:45" P.M. The victim's wife estimated that
the drive from her home in Hartford to the Bloomfield retail
store where the victim's body was found takes "[a]bout 10, 15
minutes."
18
apartment was muddy on the day of the killing, and (2) further -
- because there was mud on the floor of the SUV, but not on the
victim's shoes -- that the victim was carried out of the
Springfield apartment by Manny and the defendant, whose muddy
shoes left dirt on the floor of the SUV. 20
No rational juror could infer as much from these facts. No
evidence was introduced regarding the actual temperature in
Springfield on the day of the killing, or in the days leading up
to it. In addition, two New Englanders might well disagree
about what it means to be "not that cold" or "very nice" on a
given day in January; even then, such testimony does not itself
establish the condition of the ground that day. Asked whether
the photograph introduced by the defense accurately depicted his
back yard as it looked on January 22, 2010, Bautista responded
that the photograph was "from autumn and back then it was
winter." Moreover, the brown patches in the photograph appear
to be grass, not dirt. And although a dirt sample was taken
from the SUV, it is not clear whether it was ever sent for
analysis; no dirt sample was ever taken from the back yard of
the Springfield apartment, however, so as to compare it with the
dirt found in the SUV. In short, the condition of the back
yard, and the source of the dirt in the SUV, remain wholly
20The Commonwealth's witnesses characterized the material
found on the floor of the SUV solely as "dirt," not "mud."
19
speculative. This evidence similarly cannot serve as the
foundation for a finding beyond a reasonable doubt that the
victim was killed in Springfield.
The few cases in which this court has previously considered
the sufficiency of the evidence for purposes of territorial
jurisdiction contained stronger facts supportive of a finding
beyond a reasonable doubt that the killing (or "other violence
or injury") occurred within the boundaries of the Commonwealth.
In Commonwealth v. Lent, 420 Mass. 764, 765, 767 (1995), for
instance, the body of a murdered twelve year old boy from
Pittsfield was found tied to a tree near Ithaca, New York.
Although the court acknowledged that the fatal strangling
"occurred entirely in New York," it nonetheless upheld
jurisdiction over the case in light of "evidence of [the
defendant's] infliction of violence and injury on the victim in
Massachusetts." Id. at 769-770. In that case, the defendant
told police that that he had used a knife on his victim and
attempted to rape him in the defendant's Massachusetts apartment
before taking him to New York. Id. at 766-767, 770.
Similarly, in Travis, 408 Mass. at 8-9, the victim, whose
body was eventually found in Rhode Island, was kidnapped in
Massachusetts during a robbery of the video store where she
worked; there was evidence that her hands were bound during the
kidnapping, and a witness testified that while kidnapping her,
20
the defendant had committed a battery. In addition, "there was
evidence from which the jury could conclude that [the victim]
did not die in the wooded lot where she was discovered." Id. at
9, citing DiMarzo, 364 Mass. at 672. The court thus concluded
that "the evidence presented to the jury allowed them reasonably
to conclude that the defendant had inflicted 'violence or
injury' on [the victim] while she was within Massachusetts, and
that this 'violence or injury' had led to [her] death." Travis,
supra. See DiMarzo, supra (evidence sufficient to send
territorial jurisdiction to jury where "there was ample evidence
that the beatings which eventually led to the death of the
victim took place in Massachusetts"; witness saw defendant place
large duffel bag in motor vehicle on day of killing, at house in
Massachusetts where victim resided with defendant; and "there
was evidence that the victim did not die at the tree where her
body was discovered").
No such evidence exists in this case to establish
Massachusetts as the location of the killing. Investigators did
not, for instance, search or obtain forensic evidence from the
Springfield apartment. Nor is there any witness besides
Bautista who testified as to what transpired in Springfield. 21
21As noted, Manny was also charged with murder in the first
degree for killing the victim, and this court affirmed Manny's
conviction. See Williams, 475 Mass. at 723. Jurisdiction was
not an issue in that case, however, as the Commonwealth had
21
In the absence of additional facts, the jury were left to guess
whether the victim was killed in Springfield, as opposed to in
Connecticut. See, e.g., Gonzalez, 475 Mass. at 412, quoting
Mandile, 403 Mass. at 94 ("No[] conviction [may] rest upon the
piling of inference upon inference or conjecture and
speculation").
In light of this conclusion, we need not consider the other
issues raised by the defendant. The defendant's convictions are
reversed. 22
So ordered.
introduced Manny's statements to the police describing, in
incriminating fashion, his version of events at the Springfield
apartment on January 22, 2010. Id. at 708. The Commonwealth
did not seek to introduce Manny's statements at the defendant's
trial. See generally Bruton v. United States, 391 U.S. 123
(1968).
22 Our conclusion that we lack territorial jurisdiction with
respect to the charge of murder in the first degree applies
equally to the lesser included offense of assault and battery by
means of a dangerous weapon.