Commonwealth v. Cotto
52 Mass. App. Ct. 225, 2001 Mass. App. LEXIS 750, 752 N.E.2d 768 (2001)
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Rule of Law:
An 'entering' for the purpose of burglary occurs when an instrument, used to commit the intended felony, crosses the threshold of a dwelling, regardless of whether any part of the defendant's body enters.
Facts:
- There was an ongoing feud between the family of William Cotto and Francisco Martinez, which was exacerbated when Cotto's brother was found beaten, stabbed, and gagged on January 3, 1997.
- Hours later, in the early morning of January 4, 1997, Cotto and two others went to Martinez's apartment.
- Shirley Suarez, who was staying at the apartment, heard a window break.
- Suarez then saw a plastic bottle containing gasoline being thrown through the broken window, which caused a fire to start inside the apartment.
- Suarez saw Cotto outside with two other individuals immediately after the incident.
- A week later, on January 10, 1997, Cotto kidnapped Martinez's girlfriend, Nilsa Wong.
- During the kidnapping, Cotto admitted to Wong that he had set the fire at Martinez's apartment.
Procedural Posture:
- William Cotto was charged with breaking and entering, arson, and assault with intent to murder based on the January 4 incident, and kidnapping and assault based on the January 10 incident.
- The trial judge granted the Commonwealth's motion to join the two sets of indictments for a single trial.
- A jury in the trial court found Cotto guilty on all counts.
- Cotto appealed his convictions to the Appeals Court of Massachusetts, arguing, in part, that the trial judge gave an erroneous jury instruction regarding the 'entering' element of burglary.
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Issue:
Does throwing an instrument through a broken window into a dwelling, for the purpose of committing a felony therein, constitute an 'entering' for the purposes of the burglary statutes?
Opinions:
Majority - Kantrowitz, J.
Yes. Throwing an instrument used to commit the intended felony into a dwelling constitutes an 'entering' for the purposes of burglary. The court adopted the majority rule, which distinguishes between an instrument used merely for the breaking and an instrument used to perpetrate the felony within. While any intrusion by a part of the defendant's body is sufficient for entry, an instrumental entry only occurs if the instrument is inserted for the purpose of completing the felony. Here, the gasoline-filled bottle was not merely a tool to break the window; it was the instrument used to commit the intended felony of arson and murder. This rule properly differentiates a completed burglary from an attempted burglary, where one might break a window but be prevented from introducing the instrument of the crime.
Analysis:
This decision formally aligns Massachusetts law with the majority of American jurisdictions on the doctrine of 'instrumental entry' in burglary cases. It clarifies that the element of entry can be satisfied without any physical intrusion by the defendant's body, so long as an instrument used to commit the target felony crosses the building's threshold. This precedent solidifies the distinction between attempted burglary (where only a breaking might occur) and a completed burglary, providing a clear standard for prosecutors and courts in future cases involving entry by instruments, projectiles, or other remote means.
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