54 N.E.3d 1120
Mass. App. Ct.2016Background
- Defendant David Gilman, a middle-school music teacher and mandated reporter, was convicted by a Superior Court jury of rape and three counts of indecent assault and battery on a child under 14 based largely on the victim’s testimony and Facebook chat logs between defendant and the then-12/13-year-old victim.
- The chats began after school trips in 2008–2009; they included repeated declarations of love, sexually explicit messages from the defendant, requests to delete messages, and references to private encounters (kissing at a school dance; multiple meetings in the band room).
- Physical assaults described at trial included kissing with tongue, touching of the victim’s breasts, and digital genital contact in the band room.
- Law enforcement seized two school-issued laptops and a cell phone; forensic examiners recovered thousands of Facebook chat logs from the defendants’ user account cached on those machines and exported them for trial.
- Prior to trial the defendant moved to exclude the chat logs as irrelevant/inflammatory, inadmissible prior bad acts, unauthenticated, and not the best evidence; the judge admitted them.
- On appeal the defendant challenged (1) admission/authentication/best-evidence ruling for the chats, (2) ineffective assistance because counsel promised defendant would testify but he did not, (3) alleged prosecutorial misstatement in closing, and (4) the judge’s voir dire practice regarding juror childhood sexual abuse.
Issues
| Issue | Commonwealth's Argument | Gilman’s Argument | Held |
|---|---|---|---|
| Admissibility of Facebook chats (relevance/prejudice/prior-bad-acts) | Chats are highly probative to show relationship development, sexualization, corroboration of assaults, and manipulative conduct | Chats are irrelevant/inflammatory and show prior bad acts and propensity | Admitted: probative value outweighed prejudice; not unfairly prejudicial |
| Authentication & Best Evidence of electronic chats | Forensic evidence, account name/picture, device ownership, unique personal references suffice; duplicates acceptable | Chats not properly authenticated; best evidence requires original server/hard drive | Authenticated by circumstantial confirming circumstances; duplicates admissible under best-evidence principles |
| Ineffective assistance for counsel’s opening promise that defendant would testify | Commonwealth: no claim raised by motion for new trial; record does not establish deficient performance or prejudice | Counsel promised defendant would testify in opening but defendant did not; counsel ineffective | Claim not resolved on direct appeal; requires new-trial motion and an evidentiary hearing; record insufficient to find ineffective assistance now |
| Prosecutor’s closing and voir dire procedure | Prosecutor’s remark about a classmate illustrated manipulation; voir dire procedure was agreed by counsel and afforded individual follow-up | Remark misstated evidence; judge should have individually questioned all jurors about sexual-victimization in voir dire | No reversible error: prosecutor’s remark reasonable in context; voir dire method was within discretion and approved by counsel |
Key Cases Cited
- Commonwealth v. Latimore, 378 Mass. 671 (summary of viewing evidence in light most favorable to prosecution)
- Commonwealth v. Crayton, 470 Mass. 228 (prior-bad-acts admissibility and limiting unfair-prejudice rule)
- Commonwealth v. Walker, 460 Mass. 590 (admission of evidence for non-propensity purposes)
- Commonwealth v. Kindell, 84 Mass. App. Ct. 183 (balancing probative value and prejudice for inflammatory evidence)
- Commonwealth v. Purdy, 459 Mass. 442 (authentication standards for electronic communications)
- Commonwealth v. Salyer, 84 Mass. App. Ct. 346 (duplicates and best-evidence rule for electronic records)
- Commonwealth v. Amaral, 78 Mass. App. Ct. 671 (no requirement to produce original server/hard drive for electronic evidence)
- Commonwealth v. Zinser, 446 Mass. 807 (procedural requirement/preference to raise ineffective-assistance claims by new-trial motion)
- Commonwealth v. Ramos, 66 Mass. App. Ct. 548 (new-trial motion facilitates evidentiary hearing on counsel performance)
- Commonwealth v. Foster F., 86 Mass. App. Ct. 734 (jury must be instructed to find authentication by preponderance)
- Commonwealth v. Watson, 377 Mass. 814 (doctrine of verbal completeness)
- Commonwealth v. Cutts, 444 Mass. 821 (party-opponent admissions admissible)
- Commonwealth v. Brinson, 440 Mass. 609 (waiver of hearsay argument when not raised below)