Heard: May 6, 2016.
found and returned in the Superior Court Department on April
cases were tried before Peter B. Krupp, J.
Cowhey McDermott for the defendant. Michelle R. King,
Assistant District Attorney, for the Commonwealth.
Present: Cohen, Green, & Neyman, JJ.
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.
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
Six Flags New England amusement park in which the defendant
and the victim participated, their correspondence continued,
and they eventually became "friends" on Facebook.
The defendant and the victim began a continuing Facebook
"chat" conversation around October of 2009, when
the victim was a seventh grader and the defendant was her
music teacher and drama club director.
the defendant or the victim wanted to "chat" with
each other on Facebook, they would alert the other by sending
a text message. The victim knew that her Facebook
conversation was with the defendant because they discussed
things that they had done in person, and things that were
known only to them. The defendant and the victim chatted
"a lot of time at night, " on topics ranging from
the drama club, their time together on the previous
summer's school trips, and their developing affection for
the course of the Facebook conversations, the defendant and
the victim frequently professed their love for each other. On
October 25, 2009, they talked about kissing each other:
Defendant: "When I kiss u it will mean
everything 2 me."
Victim: (She replied with a smiley face).
Defendant: "Kiss me back please?"
Defendant: "I will luv u 4ever!!! Will u kiss
me back bcuz u luv me or just bcuz."
Victim: "Because I love u."
Defendant: "My girl."
October 30, 2009, the victim attended a school dance with two
of her friends. Halfway through the dance, the victim
received a text message from the defendant asking her to meet
him in the hallway. The victim went into the hallway, where
she met the defendant and followed him into the music room.
In the music room, they moved to an area where the victim
could not see the hallway. The defendant then touched the
victim's hips, and proceeded to kiss her on the mouth;
his lips and tongue touched her lips and tongue. The
defendant and the victim stayed in the music room for about
five to ten minutes, and the victim then returned to the
gymnasium. Later that evening, the defendant and the victim
chatted about their kiss on Facebook.
this time period, the defendant frequently reminded the
victim to delete or clear her messages, and became concerned
when the victim told him that one of her friends saw messages
from him. When the victim tried to reassure the defendant he
stated, "Damn, . . . I love you so much, and I will lose
my job, my life, and I will go to jail." Despite
acknowledging that "[w]e already broke the law, "
the defendant continued to engage the victim in sexual
conversation, and eventually talked about what he wanted to
do to her sexually.
point after Thanksgiving, the defendant and the victim made a
plan to meet alone in the band room at the school. After her
last class, the victim went into the band room as planned.
Once in the band room, the victim went immediately to the
defendant. He did not say anything to her, but grabbed her
hips with his hands and kissed her on her mouth with his lips
and tongue. The defendant also touched the victim's
breast with his hand. The defendant and the victim continued