Heard: December 8, 2017.
found and returned in the Superior Court Department on
September 26, 2011.
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.
L. Sheppard-Brick, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Lowy, & Cypher, JJ.
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), The Commonwealth alleged that the defendant
either was the principal or acted as part of a joint venture
with Demery "Manny" Williams 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. 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
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.
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 defendant's
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. 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. 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
The jury could reasonably infer that the victim was alive
when they arrived at the Springfield apartment. 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 apartment to the defendant's girl
friend. Immediately upon returning home, Bautista heard the
adjacent door of the leftside 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
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
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.
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."
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.
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 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. ...