Posts tagged "1108816"

Commonwealth v. Gilman (Lawyers Weekly No. 11-088-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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;   15-P-423                                        Appeals Court   COMMONWEALTH  vs.  DAVID GILMAN.     No. 15-P-423.   Worcester.     May 6, 2016. – July 21, 2016.   Present:  Cohen, Green, & Neyman, JJ.     Rape.  Indecent Assault and Battery.  Evidence, Relevancy and materiality, Inflammatory evidence, Authentication, Best and secondary.  Constitutional Law, Assistance of counsel.  Practice, Criminal, Assistance of counsel, Argument by prosecutor, Voir dire, Jury and jurors.  Jury and Jurors.       Indictments found and returned in the Superior Court Department on April 23, 2010.   The cases were tried before Peter B. Krupp, J.     Diana Cowhey McDermott for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth.     GREEN, J.  A Superior Court jury convicted the defendant, a middle school music teacher, of rape and three counts of indecent assault and battery on a child under fourteen, aggravated in the first instance by age difference and in all instances by reason of the defendant’s status as a mandated reporter.  On appeal, he claims error in the admission of a number of “chat” messages he exchanged with the victim (a twelve year old student of his at the time of the assaults) on the social networking Web site Facebook.  He also claims that he was deprived of his constitutional right to effective representation by counsel when his counsel promised the jury that the defendant would testify at trial, but then broke that promise when the defendant did not testify after the Commonwealth rested.  We discern no cause to disturb the convictions, and affirm.[1] Background.  We summarize the facts the jury could have found, viewed in a light most favorable to the Commonwealth.  See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).  In the fall of 2008, the victim was a sixth grader at Leicester Middle School; the defendant was her music teacher.  At the end of her sixth grade year, the victim went on a school-sponsored camping field trip.  The defendant was a chaperone on that field trip, and he and the victim spent a lot of time together while on the trip.  At the end of the trip, the defendant put his cellular telephone (cell phone) number and his name into the victim’s cell phone contact list, and they exchanged text messages frequently thereafter.  Over the course of the following summer, which included another school-sponsored trip to the […]


Posted by Massachusetts Legal Resources - July 21, 2016 at 5:28 pm

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