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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.
