Commonwealth v. Hatzigiannis

Citation: 88 Mass. App. Ct. 395Docket: AC 13-P-1970

Court: Massachusetts Appeals Court; September 23, 2015; Massachusetts; State Appellate Court

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All slip opinions and orders are subject to formal revision and will be superseded by the advance sheets and bound volumes of the Official Reports. Any typographical or formal errors should be reported to the Reporter of Decisions at the Supreme Judicial Court in Boston. In the case of Commonwealth vs. George Hatzigiannis (No. 13-P-1970), decided on September 23, 2015, the defendant, an oral surgeon, was convicted of indecent assault and battery against a sixteen-year-old female patient, violating G. L. c. 265, § 13H. The charge stemmed from a report by the defendant's surgical assistant, Orsella Aquino, who witnessed the defendant cupping the patient's breast while she was sedated.

The appeal focused on the admissibility of prior consistent statements made by Aquino shortly after the incident, which the court determined were prejudicially erroneous, leading to the reversal of the judgment. Background details revealed that the incident occurred on November 16, 2010, during a wisdom tooth extraction procedure. Aquino had no prior issues with the defendant, describing him as friendly. Testimony indicated that during an initial consultation, the defendant behaved in a flirty manner towards the patient. After the surgery, while Aquino was attending to post-operative tasks, she observed the defendant standing close to the patient and cupping her breast, which formed the basis for the charges against him.

Aquino experienced shock after witnessing the defendant allegedly touch a patient inappropriately and felt compelled to leave the room when he insisted she fetch ice packs, which was unusual protocol. After the incident, Aquino confided in her office manager, Tatis, stating unequivocally that she had seen the defendant touch the patient, but the judge ruled that these statements could not be introduced as excited utterances during the trial. However, Tatis was permitted to describe Aquino's demeanor when she approached her, noting that Aquino appeared physically shaken. During cross-examination, defense counsel challenged Aquino's certainty about her observations and pointed out inconsistencies in her testimony. On redirect, Aquino reaffirmed her conviction about what she saw. Tatis confirmed Aquino's account of the incident and stated that Aquino requested confidentiality due to fear of job loss. Tatis also communicated the seriousness of the situation to her practice manager via email, although there was a delay in further action following the incident.

Tatis's letter indicates that Aquino initially reported seeing the defendant 'pulling his hand away' from the patient's breast while attempting to awaken the patient. However, Tatis later informed a Department of Public Health employee that Aquino claimed to have witnessed the defendant touching the patient's left breast. The Commonwealth concluded its case after presenting this information.

The defense argued that Aquino simply made an honest mistake regarding her observation and that it was illogical for the defendant to touch a patient's breast in proximity to a surgical assistant tasked with monitoring the patient. The defendant testified, denying any inappropriate contact and providing scenarios where touching a patient post-procedure might be necessary.

During jury deliberations, the jury requested to review a letter mentioned in Tatis's cross-examination, but the judge denied their request since it was not part of the evidence.

Regarding the admissibility of prior consistent statements, Massachusetts law generally deems them inadmissible unless a witness's credibility is challenged based on recent fabrication or bias. In this case, the court found that the foundation for admitting such statements was lacking, as the defense did not claim that Aquino's testimony was fabricated or biased, but rather that she was simply mistaken. The Commonwealth's argument that the defense's impeachment of Aquino's testimony warranted the admission of prior consistent statements was rejected. Prior consistent statements can only be used to rebut claims of recent fabrication, not to prove the truth of the statements themselves.

The Commonwealth argues that defense counsel inadvertently allowed the admission of statements by Tatis when she revealed during cross-examination that she did not speak with the defendant after her conversation with Aquino. This implication suggested that Aquino's report was not serious enough for Tatis to take action. To adequately rebut this implication, the prosecutor should have sought clarification from Tatis during redirect examination, which occurred in subsequent rounds of questioning. However, the introduction of Aquino's prior consistent statements exceeded what was necessary to correct any misinterpretation regarding Tatis's concern.

The statements in question are from a witness to an alleged sexual assault, rather than from the victim herself. The first complaint doctrine allows for the admissibility of a sexual assault victim's initial report despite typical restrictions on prior consistent statements, as established in relevant case law. However, since Tatis was not in a position to voice a complaint herself, the usual rules for prior consistent statements still apply to Aquino's statements.

In assessing potential prejudice from the admission of these statements—given the defendant's objection—the standard for nonprejudicial error requires that the error did not influence the jury significantly. The jury's focus on Aquino's reliability as an eyewitness was evident from their request to review a specific letter related to her conversation with Tatis. Additionally, any potential limiting instruction regarding the use of the statements was not addressed, leading to concerns about the jury interpreting the evidence improperly. Ultimately, the court could not conclude that the erroneous admission of evidence was nonprejudicial, leading to the reversal of the judgment and the setting aside of the verdict.