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13-P-1970 Appeals Court
COMMONWEALTH vs. GEORGE HATZIGIANNIS.
No. 13-P-1970.
Essex. April 8, 2015. - September 23, 2015.
Present: Cohen, Wolohojian, & Maldonado, JJ.
Indecent Assault and Battery. Evidence, Prior consistent
statement, Impeachment of credibility, Cross-examination,
Redirect examination. Witness, Credibility, Cross-
examination, Impeachment, Redirect examination. Practice,
Criminal, Witness.
Complaint received and sworn to in the Lynn Division of the
District Court Department on February 23, 2012.
The case was tried before Matthew J. Nestor, J.
Ruth Greenberg for the defendant.
Catherine L. Semel, Assistant District Attorney, for the
Commonwealth.
COHEN, J. After a District Court jury trial, the
defendant, an oral surgeon, was convicted of indecent assault
and battery of a sixteen year old female patient, in violation
of G. L. c. 265, § 13H. The charge resulted from a report by
2
the defendant's surgical assistant that she witnessed the
defendant cupping his hand on the patient's breast while the
patient was sedated. The sole issue on appeal concerns the
admission, over the defendant's objection, of prior consistent
statements made by the surgical assistant shortly after the
incident. We agree that the admission of these statements was
prejudicial error and that, therefore, the judgment must be
reversed.
Background. A. The incident. The evidence concerning the
episode in question may be summarized as follows. In November,
2010, Orsella Aquino worked as a surgical assistant at Lynn Oral
Surgery, one of several offices of an oral surgery practice
group in which the defendant was a partner. The defendant
rotated into the Lynn office on Monday and Tuesday, every three
weeks. Aquino had no difficulties with the defendant; to the
contrary, she liked working with him, and found him to be a
nice, friendly, and "huggable type of person."
On November 16, 2010, Aquino assisted the defendant when he
extracted the wisdom teeth of the patient in question -- a high
school student described by Aquino as a "[y]oung, pretty girl."
The procedure had been scheduled the previous day when the
patient and her mother came in for a consultation. The
patient's mother testified that during that initial meeting the
defendant sat very close to the patient, touched her on the
3
knee, and made a comment about her being "attractive." The
patient testified that the defendant was "flirty."
The surgery took place in one of the operatories. The
patient received intravenous sedation, which was common
practice, and which was administered by the defendant. In
addition to Aquino, another employee also assisted. When the
surgery was concluded, the other assistant left the room to
attend to other tasks, leaving the defendant and Aquino with the
patient.
Aquino testified that, at that point, she called the
patient's name to wake her, and the patient opened her eyes and
asked if the procedure was done; however, Aquino also explained
that a patient can be awake while coming out of sedation, but
still not fully aware of what is happening. The patient
testified that her first postoperative memory was of waking up
in the recovery room.
Aquino proceeded to detach and remove various items that
had been used in the patient's care: the intravenous line, a
blood pressure cuff, leads to monitors, and a bib. After
wrapping up the leads and putting them away, Aquino turned and
glanced over her left shoulder to look back at the patient. She
saw the defendant standing close to the patient's right side and
observed that his right hand was cupping the patient's left
breast. Aquino turned back around because she was "in shock."
4
She did not think that the defendant saw her looking at him, and
said nothing to him. She was afraid that confronting the
defendant would cause her to lose her job.
Aquino remained turned around for about "a minute," when
the defendant then asked her to leave the room to get ice packs
for the patient. Aquino thought this was strange, because he
had never asked that a patient receive ice packs in the
operatory; typically, ice packs were given to the patient in the
recovery room. Aquino left the room only when the defendant
became insistent -- asking her two or three more times to get
the ice packs. Feeling that she had no choice, she went down
the hall to the room where the ice packs were kept. When she
returned, the defendant was facing away from the patient and
making notes on the chart. Aquino took the patient to the
recovery room, and retrieved the patient's mother from the
waiting room so she could sit with her daughter.
B. The prior consistent statements. Prior to trial, the
Commonwealth moved in limine to admit statements made by Aquino
to her office manager, Renee Tatis, shortly after the incident.
The Commonwealth proffered that Tatis would testify that Aquino
stated, "I just saw [the defendant] touch a patient on the left
breast"; that Tatis then asked Aquino, "Are you sure?"; and that
Aquino replied, "A hundred percent."
5
Unpersuaded by the Commonwealth's argument that the
statements were admissible as excited utterances, and concerned
that this was an attempt to buttress the credibility of Aquino
with hearsay, the judge ruled that the statements could not be
introduced during the Commonwealth's case-in-chief. He
indicated, however, that he would reconsider his ruling if an
issue such as fabrication or recent contrivance arose. He also
ruled that the Commonwealth could ask Tatis to describe Aquino's
demeanor when she (Aquino) approached Tatis.
During cross-examination of Aquino, defense counsel focused
on whether she was mistaken about what she saw. He probed
inconsistencies between her trial testimony and statements that
she made during a deposition conducted one month after the
incident, including one statement that she "didn't believe what
[she] saw." He also probed her failure to confront the
defendant and her decision to leave the patient alone with him
while getting the ice packs. On redirect examination, the
prosecutor elicited that Aquino was sure that she saw the
defendant cupping the patient's breast, even if, at first, she
"didn't believe [it]."
Tatis then took the stand and testified that she saw Aquino
shortly before lunch, while the patient was still in the
recovery room. She described Aquino as "physically shaking and
out of breath." Defense counsel cross-examined Tatis briefly,
6
eliciting that Tatis had no personal knowledge of what occurred
in the operatory, that Aquino only came to speak with her after
the patient went to the recovery room and not when Aquino was
getting the ice packs, and that after Aquino spoke with her,
Tatis did not speak with the defendant.
The prosecutor then asked for a sidebar conference, the
content of which was unable to be transcribed except for the
judge's noting of the defendant's objection.1 As a result of the
sidebar conference, the Commonwealth was allowed to question
Tatis about her conversation with Aquino. Tatis testified
exactly as the Commonwealth had proffered at the motion hearing,
stating that Aquino told her that she had seen the defendant
touch the patient's left breast; that Tatis said, "Are you
sure?"; and that Aquino said, "Yes, one hundred percent." Tatis
also testified that Aquino asked Tatis not to tell anybody
because she (Aquino) could not lose her job. The prosecutor
then asked what Tatis did with that information, and Tatis
replied that she sent an electronic mail message to her practice
1
Efforts were made to reconstruct this part of the record,
but they were inconclusive. The judge had no recollection of
the sidebar conference. Both the prosecutor and defense counsel
remembered that the Commonwealth argued that the cross-
examination had opened the door for the Commonwealth to inquire
about the statements Aquino made to Tatis. They also remembered
that defense counsel objected, and that the objection was
overruled; but neither could recall whether defense counsel
requested a limiting instruction.
7
manager stating that she needed to discuss something very
serious with her.
On recross-examination, defense counsel elicited that Tatis
did not actually speak to her practice manager for another three
days, and that two days after Aquino reported the incident to
her, Tatis drafted a "To whom it may concern" letter. In that
letter, Tatis stated that Aquino reported seeing the defendant
"pulling his hand away" from the patient's breast, rather than
touching it, and that the events occurred when Aquino was "going
to wake up" the patient, rather than after the patient was
awakened. On further redirect, the Commonwealth elicited that
Tatis later told an employee of the Department of Public Health
that Aquino had reported that she saw the defendant touching the
patient's left breast. The Commonwealth then rested its case.
C. The remainder of the trial. The defense was that
Aquino made an honest mistake about what she thought she saw,
and that it made no sense that the defendant would touch a
patient's breast two feet away from the surgical assistant whose
job it was to monitor the patient. The defendant testified on
his own behalf and denied touching the patient's breast. He
also gave examples of instances when it would be necessary for
8
an oral surgeon to touch a patient on the upper body after a
procedure.2
During deliberations, the jury asked whether they could see
the "To whom it may concern" letter referenced during Tatis's
cross-examination. The judge responded that they could not see
the letter, as it was not in evidence.3
Discussion. A. Admissibility of prior consistent
statements. "A prior consistent statement by a witness is
generally inadmissible." Mass. G. Evid. § 613(b)(1) (2015).
See Commonwealth v. Rivera, 430 Mass. 91, 99 (1999);
Commonwealth v. Novo, 449 Mass. 84, 93 (2007). "The rationale
for this rule is that ordinarily such statements are
'unnecessary and valueless,' because the statement of a witness
is not made more trustworthy by repeating it." Commonwealth v.
Novo, supra, quoting from 4 Wigmore, Evidence § 1124, at 255
(Chadbourn rev. ed. 1972). There is, however, an exception to
the general rule. "If the court makes a preliminary finding
2
The defendant explained that it might be necessary to
touch the shoulder of a patient who emerged from anesthesia
confused or scared, to pinch the patient's collarbone to help
wake the patient up, to move the patient's chin to reposition
the patient's airway, and to adjust the patient's arm to insure
that its position would not create a pinched nerve.
3
The judge also explained that the letter was hearsay and
would not be admissible except in limited circumstances, such as
if it contained a prior inconsistent statement that would help
the jury assess the witness's credibility.
9
that there is a claim that the witness's in-court testimony is
the result of recent contrivance or a bias, and the prior
consistent statement was made before the witness had a motive to
fabricate or the occurrence of the event indicating a bias, the
evidence may be admitted for the limited purpose of rebutting
the claim of recent contrivance or bias." Mass. G. Evid.
§ 613(b)(2) (2015). See Commonwealth v. Tennison, 440 Mass.
553, 563 (2003).4 However, "use of prior consistent statements
should be allowed only with caution, and where the probative
value for the proper purpose is clear, because of the ever
present danger that the jury will, despite instructions,
consider the prior consistent statement as evidence of the facts
therein asserted." Commonwealth v. Darden, 5 Mass. App. Ct.
522, 528 (1977). See Commonwealth v. Gaudette, 441 Mass. 762,
769 (2004) (prior consistent statement "may be used to rebut the
claim of recent fabrication, not to prove the truth of the
matter" [citation omitted]).
The defendant argues that the foundation for the exception
was not met in this case and hence Aquino's prior consistent
statements should not have been introduced. We agree. The
defendant never insinuated that Aquino's testimony was recently
4
The exception also may apply if the prior consistent
statement is made at a time when the motive to fabricate no
longer exists. See Commonwealth v. Aviles, 461 Mass. 60, 69-70
(2011).
10
fabricated or the product of bias; the suggestion was only that
her perception was faulty, and that she was mistaken as to what
she thought she saw. Nor was there was any suggestion that
Aquino ever had any reason to fabricate her allegation. There
was no evidence that she had any animus towards the defendant;
to the contrary, the evidence was that Aquino liked the
defendant and enjoyed working with him.
The Commonwealth contends that defense counsel's
impeachment of Aquino with her deposition testimony suggested
that her trial account was either untrue or embellished, and
therefore set the stage for the admission of her prior
consistent statements. However, "the impeachment of a witness
by prior inconsistent statements or omissions does not, standing
alone, entitle the adverse party to introduce other prior
statements made by the witness that are consistent with his [or
her] trial testimony." Commonwealth v. Bruce, 61 Mass. App. Ct.
474, 482 (2004), citing Commonwealth v. Retkovitz, 222 Mass.
245, 249-250 (1915).
The Commonwealth further posits that the defense counsel
opened the door to the admission of the statements by eliciting
from Tatis on cross-examination that after speaking with Aquino,
Tatis did not speak with the defendant. According to the
Commonwealth, defense counsel thereby implied that whatever
Aquino reported to Tatis was not serious or certain enough to
11
prompt Tatis to act on it. Even assuming that this is a fair
assessment of the import of the cross-examination, the proper
way to rebut it was to ask Tatis on redirect to explain more
fully the actions she took after Aquino approached her. See,
e.g., Commonwealth v. Vuthy Seng, 456 Mass. 490, 496-499 (2010).
That is, in fact, what the prosecutor did during the next round
of recross and redirect. The disfavored introduction of
Aquino's prior consistent statements went beyond what was
necessary or appropriate to disabuse the jury of any conceivable
misimpression that Tatis was unconcerned by what Aquino had told
her.
It bears emphasizing that the statements in question are
those of a percipient witness to an alleged sexual assault and
not those of a sexual assault victim. Under the first complaint
doctrine a sexual assault victim's first report of the assault
is admissible despite the constraints ordinarily placed on
evidence of prior consistent statements, see Commonwealth v.
King, 445 Mass. 217, 240-243 (2005), and additional complaint
testimony may be admitted in the judge's discretion for a
variety of independent purposes, including to respond to
attempts by the defendant to discredit the victim's testimony,
see Commonwealth v. Kebreau, 454 Mass. 287, 297-300 (2009).
However, as King makes clear, the first complaint doctrine is
specific to sexual assault victims: "There is a continued need
12
in sexual assault cases to counterbalance or address inaccurate
assumptions regarding stereotypes about delayed reporting of a
sexual assault or about sexual assault victims in general."
Commonwealth v. King, supra at 240. Accordingly, even though
this case is unusual in that the patient was not in a position
to voice her own complaint, the ordinary rules governing prior
consistent statements remain applicable to the statements of
Aquino.
B. Prejudice. Because the defendant objected to the
admission of Aquino's statements to Tatis, we review for
prejudicial error. See Commonwealth v. Middlemiss, 465 Mass.
627, 631 (2013). An error is nonprejudicial only if we are
convinced that it "did not influence the jury, or had but very
slight effect." Commonwealth v. Flebotte, 417 Mass 348, 353
(1994) (citation omitted). Here, the central issue before the
jury was Aquino's reliability as an eyewitness. Furthermore, it
would appear from the jury's request to see the "To whom it may
concern" letter during deliberations that they may have been
particularly interested in Aquino's conversation with Tatis and
how Tatis described it two days later. Finally, while
deficiencies in the record leave uncertain whether defense
counsel asked for a limiting instruction, the impact of the
erroneously admitted evidence surely was amplified by the fact
that the jury were not told that they could use the statements
13
only to evaluate Aquino's credibility, and not for their truth.
In these circumstances, we are unable to conclude that there was
no prejudice. See Commonwealth v. Foster F., 86 Mass. App. Ct.
734, 740 (2014).
Conclusion. The judgment is reversed and the verdict is
set aside.
So ordered.