Commonwealth v. Gupta (Lawyers Weekly No. 11-002-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 10‑P‑921 Appeals Court COMMONWEALTH vs. BIRENDAR GUPTA. No. 10‑P‑921. Middlesex. September 11, 2013. ‑ January 15, 2014. Present: Kantrowitz, Sikora, & Hines, JJ. Stalking. Practice, Criminal, Instructions to jury, Lesser included offense, Duplicative convictions, Discovery, Assistance of counsel, Argument by prosecutor. Telephone. Evidence, Relevancy and materiality. Indictment found and returned in the Superior Court Department on November 13, 2008. The case was tried before Maureen B. Hogan, J., and a motion for a new trial, filed on March 1, 2011, was considered by her. Tatum A. Pritchard for the defendant. Hallie White Speight, Assistant District Attorney, for the Commonwealth. SIKORA, J. A Superior Court jury convicted the defendant of stalking in violation of a restraining order, G. L. c. 265, § 43(b). As a central argument in this consolidated appeal, he contends that the judge’s instruction to the jury misconstrued the statutory definition of stalking and that under a correct definition the evidence did not establish his guilt beyond a reasonable doubt. He presents several subsidiary arguments. For the following reasons, we affirm the judgment and the order denying the defendant’s motion for new trial. Background. 1. Factual. Through the course of six days and the testimony of twelve witnesses (ten presented by the Commonwealth and two by the defendant), the jury received the following evidence.[1] The defendant and the victim, whom we shall call Manorma M. (Manorma), married in India in 2000. At that time Manorma was a widow and the mother of four children from her prior marriage. Through the ensuing seven years of marriage, the defendant physically, verbally, and sexually abused Manorma. The abuse involved batteries, forced sexual relations, and threats to harm and to kill her. She became afraid of him. During this time span the defendant regularly traveled to other countries for business purposes. The couple came to Massachusetts in April, 2007. The defendant rented an apartment in Somerville and began work at a restaurant; Manorma started work at a nearby salon. On May 21, 2007, Manorma obtained a restraining order pursuant to G. L. c. 209A, § 3, from the District Court. The court extended the order first to June 4, 2007, then to May 30, 2008, and again to May 29, 2009. In pertinent part and by the standard language, it commanded the […]