COMMONWEALTH vs. CURTIS COMBS.

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 assault by means of a dangerous weapon, G. L. c. 265, § 15A (b). [Note 1] The Commonwealth alleged that the defendant either was the principal or acted as part of a joint venture with Demery "Manny" Williams [Note 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

Page 56

victim and had only assisted Manny in concealing the crime after the fact, by helping Manny dispose of the victim's body in Connecticut. [Note 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. [Note 4]

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 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

Page 57

defendant's convictions. [Note 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. [Note 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. [Note 7] Despite being on probation in 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. [Note 8] The jury could reasonably infer that the victim was alive when they arrived at the Springfield apartment. [Note 9] Around this time, Gustavo Bautista returned home to the duplex that he owned on Florida Street in Springfield. Bautista lived in

Page 58

the apartment located on the right side of the house, and he rented the left-side 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. [Note 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 time, and then left the duplex, leaving the defendant and Manny behind the home with the SUV. [Note 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,

Page 59

area. [Note 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, 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 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

Page 60

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. [Note 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 evidence for a jury to conclude that the murder had occurred in Massachusetts. [Note 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." [Note 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,

Page 61

848 (1999) ("The general rule, accepted as '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 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

Page 62

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 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 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. [Note 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

Page 63

was strangled in the Springfield apartment. Latimore, 378 Mass. at 677. [Note 17]

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.

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. [Note 18] In addition, the victim was found lying on his stomach in the SUV.

Page 64

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 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. [Note 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 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

Page 65

SUV. [Note 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 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,

Page 66

and a witness testified that while kidnapping her, 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. [Note 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. [Note 22]

So ordered.