Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-152-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us 14-P-1641 Appeals Court W. NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4] No. 14-P-1641. Bristol. June 1, 2015. – September 30, 2015. Present: Sullivan, Maldonado, & Massing, JJ. Probate Court, Attorney’s fees, Trust. Trust, Attorney’s fees. Practice, Civil, Attorney’s fees. Executor and Administrator, Attorney’s fees. Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011. The case was heard by Virginia M. Ward, J. Philip J. Laffey for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben Nathan Dunlap for Edwin J. Haznar, Jr. MASSING, J. Defendant Dale Eggers, a beneficiary of the William O. Smith Trust (the trust), appeals from a decree issued by a judge of the Probate and Family Court awarding attorney’s fees, costs, and compensation for professional services to be paid to the plaintiffs from trust funds. The plaintiffs’ petition to the court claimed that their decedents (the trustees) had rendered legal and accounting services to the trust and had incurred expenses in their defense of a lawsuit that Eggers initiated against them in connection with their duties as trustees. The amount of the award was nearly sixty percent of the value of the trust at the time of the petition. While we do not reach the question of the reasonableness of the award, we remand the case for the judge to “undertake a more specific and searching analysis of the actual requests for fees and costs submitted than the record suggests took place.” Matter of the Estate of King, 455 Mass. 796, 809 (2010) (King). Background. Eggers’s father, Wilson O. Smith, established the trust in 1987. Among the beneficiaries were Smith’s wife, Betty Georgas (who was not Eggers’s mother), Eggers, and Eggers’s children. In December, 2006, Eggers and one of her daughters initiated a lawsuit in the Probate and Family Court against the trustees, Thomas T. Brady and Edwin J. Haznar, alleging breach of fiduciary duty in their 1994 conveyance of a Florida property out of the trust to Georgas (the prior action). After nearly four years of litigation, on November 8, 2010, summary judgment entered in favor of the trustees. Among the grounds for judgment was that the prior action was barred by the statute of limitations because Eggers […]
Skandha v. Clerk of the Superior Court for Civil Business in Suffolk County (Lawyers Weekly No. 10-168-15)
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; SJCReporter@sjc.state.ma.us SJC-11811 BODHISATTVA SKANDHA vs. CLERK OF THE SUPERIOR COURT FOR CIVIL BUSINESS IN SUFFOLK COUNTY. September 29, 2015. Supreme Judicial Court, Superintendence of inferior courts. Mandamus. Practice, Civil, Action in nature of mandamus, Assembly of record. Clerk of Court. The petitioner, Bodhisattva Skandha, appeals from a judgment of a single justice of this court denying his petitions pursuant to G. L. c. 211, § 3, and for relief in the nature of mandamus pursuant to G. L. c. 249, § 5. We affirm. Background. The petitions stem from Skandha’s effort to appeal from the dismissal of a complaint in the Superior Court that he and two other plaintiffs filed, in August, 2010, against the Committee for Public Counsel Services (CPCS) and several associated attorneys. The plaintiffs claimed that CPCS and the attorneys had violated the plaintiffs’ due process rights by, among other things, failing to screen their new trial motions to determine whether they had any claims that would entitle them to relief from their respective convictions. A judge in the Superior Court dismissed the complaint, in May, 2013, and it appears that Skandha timely filed a notice of appeal.[1] The appeal was dismissed, however, in January, 2014, apparently on the basis that Skandha had failed to take the necessary steps to perfect it.[2] Skandha subsequently timely filed a notice of appeal from the dismissal of his appeal, as he was entitled to do (in which he again indicated that there were no transcripts in the matter, see note 2, supra). He also filed, in March, 2014, a “motion for the court to order the clerk to provide the pleadings for the plaintiffs’ appeal,” and, in June, 2014, a motion in the Superior Court asking the court “to order the clerk to assemble the record.” Both of these motions were stamped “rejected” on June 26, 2014, and never docketed. After his efforts to appeal stalled in the Superior Court, Skandha filed his petitions in the county court for relief in the nature of mandamus and pursuant to G. L. c. 211, § 3, asking the single justice to direct the clerk of the Superior Court to assemble the record for purposes of his appeal. The petitions were denied without a hearing. Discussion. Skandha has now filed what appears to have been intended as a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. […]
Commonwealth v. Spinucci (Lawyers Weekly No. 10-169-15)
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; SJCReporter@sjc.state.ma.us SJC-10018 COMMONWEALTH vs. JOSEPH SPINUCCI. Middlesex. April 10, 2015. – September 29, 2015. Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Assault and Battery by Means of a Dangerous Weapon. Practice, Criminal, Instructions to jury, Hearsay, Capital case. Malice. Evidence, Joint venturer, Hearsay. Joint Enterprise. Dangerous Weapon. Indictments found and returned in the Superior Court Department on September 9, 2004. The cases were tried before Paul A. Chernoff, J., and a motion for postconviction relief was heard by him. Joseph A. Hanofee for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. In June, 2006, a Middlesex County jury found the defendant guilty of the murder in the first degree of Ryan Sullivan on the theory of extreme atrocity or cruelty; he also was found guilty of four related offenses involving two other victims, William Tighe and Jules Stevens.[1] He appeals from these convictions and also appeals from the denial of his posttrial motion for relief. He argues that the trial judge erred by declining to instruct the jury on manslaughter on a provocation theory; denying his motion for a new trial on the ground that a manslaughter instruction on this theory clearly was required; in connection with the murder charge, failing to instruct the jury that before they could infer malice from the intentional use of a dangerous weapon on the part of the defendant as a joint venturer with Van Gustave (see note 1, supra), the jury must find that the defendant knew Gustave was armed with a knife; allowing the jury to consider hearsay evidence to establish the defendant’s knowledge that his alleged joint venturer Gustave possessed a knife; and denying the defendant’s motion for a required finding of not guilty on the two charges relating to the victim Stevens. He also claims that he is entitled to relief under G. L. c. 278, § 33E. We affirm the defendant’s convictions and decline to grant relief pursuant to c. 278, § 33E. Background. 1. Facts. We summarize the facts the jury could have found, reserving certain details for later discussion in connection with the issues raised. On the night of July 1, 2004, the city of Somerville put on a fireworks display in Trum Field. The defendant, Gustave, and their respective […]
Commonwealth v. Wray (Lawyers Weekly No. 11-151-15)
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; SJCReporter@sjc.state.ma.us 14-P-368 Appeals Court COMMONWEALTH vs. GERMAINE WRAY. No. 14-P-368. Hampden. April 1, 2015. – September 28, 2015. Present: Vuono, Meade, & Carhart, JJ. Practice, Criminal, Objection, Offer of proof. Evidence, Offer of proof, Prior inconsistent statement, Impeachment of credibility, Credibility of witness. Witness, Impeachment, Credibility. Complaint received and sworn to in the Springfield Division of the District Court Department on November 20, 2012. The case was tried before Mary E. Hurley, J. Peter J. Brewer for the defendant. Alyson C. Yorlano, Assistant District Attorney, for the Commonwealth. CARHART, J. The defendant appeals from his convictions of assault and threating to commit a crime.[1] He claims that the judge erred by barring defense counsel from eliciting from the alleged victim, Rosa Cruz, the sole witness in the case, whether she had made certain statements to defense counsel that were inconsistent with her testimony at trial. We reverse. Background. The jury could have found the following facts based on the evidence presented at trial. The defendant and Cruz had been in a dating relationship for about one month, when, on November 19, 2012, they both attended a Narcotics Anonymous meeting in West Springfield. Before the meeting began, the defendant saw Cruz hug another man. The defendant became upset, started yelling at Cruz, and said that he was going to come back and “fuck [her] up.” That night, Cruz was interviewed by and gave two statements to the police. In her first statement, Cruz did not say that the defendant pushed her. In her second statement, Cruz stated that the defendant did, in fact, push her.[2] At trial, Cruz testified that the defendant tried to push her, but said several times that she could not remember if he actually touched her. Subsequently, the prosecutor refreshed her memory with the second statement that she gave to the police on the night of the incident. The following exchange ensued: Prosecutor: “Did he make physical contact with you?” Cruz: “He pushed me, yeah, but it wasn’t a push that I fell.” Prosecutor: “Okay. But he touched you?” Cruz: “Yes.” On the day of trial, before it began, defense counsel spoke with Cruz about the incident that formed the basis for the charge of assault and battery.[3] Specifically, defense counsel asked Cruz […]
Commonwealth v. Estabrook (and nine companion cases) (Lawyers Weekly No. 10-167-15)
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; SJCReporter@sjc.state.ma.us SJC-11833 COMMONWEALTH vs. JASON ESTABROOK (and nine companion cases[1]). Middlesex. May 7, 2015. – September 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Cellular Telephone. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Expectation of privacy, Probable cause, Warrant, Affidavit, Fruits of illegal search. Probable Cause. Evidence, Result of illegal search. Practice, Criminal, Warrant, Affidavit. Indictments found and returned in the Superior Court Department on December 6, 2012. Pretrial motions to suppress evidence were heard by Kathe M. Tuttman, J. Applications for leave to file interlocutory appeals were allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by her. George E. Murphy, Jr., for Jason Estabrook. Daniel Beck (Susan M. Costa with him) for Adam Bradley. Jamie Michael Charles, Assistant District Attorney (David Marc Solet, Assistant District Attorney, with him) for the Commonwealth. Andrew Sellars, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. BOTSFORD, J. In this case, we consider again a search of historical cellular site location information (CSLI).[2] See Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass. 837 (2015). The defendants, Jason Estabrook and Adam Bradley, stand indicted for murder and related crimes arising out of a shooting that took place on July 7, 2012, in Billerica. They moved to suppress evidence of historical CSLI pertaining to Bradley’s cellular telephone that the police initially obtained in July, 2012, without a search warrant but in compliance with 18 U.S.C. § 2703 (2006), and then, in November, 2013, reobtained pursuant to a warrant. The defendants also sought suppression of statements they each made to police in 2012, following the receipt of Bradley’s CSLI. A judge of the Superior Court denied the motions after an evidentiary hearing; the defendants filed these interlocutory appeals. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). Returning to an issue briefly touched on in Augustine, 467 Mass. at 255 n.37, we conclude that a defendant’s reasonable expectation of privacy protected under art. 14 of the Massachusetts Declaration of Rights is not violated where the Commonwealth requests up to six hours of historical CSLI without obtaining a search warrant. In this case, however, […]
Commonwealth v. Scott (Lawyers Weekly No. 10-166-15)
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; SJCReporter@sjc.state.ma.us SJC-11097 COMMONWEALTH vs. KENSTON SCOTT. Plymouth. March 2, 2015. – September 24, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Homicide. Felony-Murder Rule. Armed Home Invasion. Practice, Criminal, Capital case, Postconviction relief, Interlocutory appeal, Double jeopardy. Indictments found and returned in the Superior Court Department on March 30, 2007. The cases were tried before Richard J. Chin, J., and a motion for postconviction relief, filed on June 5, 2012, was heard by him. Chauncey B. Wood for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. DUFFLY, J. The only issue that is properly before us in this interlocutory appeal, as we shall explain below, is whether the evidence at the defendant’s trial was sufficient to warrant a finding of guilty of murder in the first degree based on a theory of felony‑murder, with armed home invasion as the predicate felony. Specifically, the question is whether the Commonwealth presented evidence that would warrant a finding that the defendant committed two separate assaults, one to support a conviction of armed home invasion and a separate and distinct assault that constituted the homicide. In the absence of proof of two independent assaults, the evidence would not support a conviction of felony‑murder based on an armed home invasion. We hold that the Commonwealth presented sufficient evidence to warrant a finding of two assaults. Procedural history. The defendant was tried and convicted in the Superior Court, in 2010, on charges (one count each) of murder in the first degree, armed home invasion, and unlicensed carrying of a firearm.[1] The murder conviction was based on a theory of felony-murder, with armed home invasion as the predicate felony.[2] The defendant was sentenced to the mandatory term of life in prison without the possibility of parole for the murder, and a concurrent term of from four and one-half to five years for the firearm offense. The armed home invasion indictment was dismissed as duplicative.[3] The defendant’s appeal from his convictions was entered directly in this court in November, 2011, in accordance with G. L. c. 278, § 33E. In June, 2012, while his appeal was pending, he filed in this court a “motion for postconviction relief” that we remanded to the Superior Court for consideration. His motion was focused entirely on the murder conviction and […]
Commonwealth v. Bonnett (Lawyers Weekly No. 10-165-15)
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; SJCReporter@sjc.state.ma.us SJC-11496 COMMONWEALTH vs. DARKENS BONNETT. Essex. May 8, 2015. – September 24, 2015. Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ. Homicide. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Opening statement, Presence of defendant, Identification of defendant in courtroom, Failure to object, Argument by counsel, Argument by prosecutor, Disclosure of identity of informer, Disclosure of evidence in possession of Federal authorities, Capital case. Evidence, Cross-examination, Identification, Videotape, Consciousness of guilt, Disclosure of evidence, Informer, Relevancy and materiality. Witness, Cross-examination, Privilege. Identification. Indictment found and returned in the Superior Court Department on September 15, 2010. The case was tried before Howard J. Whitehead, J., and a motion for a new trial, filed on January 27, 2014, was heard by him. Jeanne M. Kempthorne for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. LENK, J. The victim, Vincent Gaskins, was shot and killed in a parking lot across the street from a nightclub in Lynn. The shooting came on the heels of an argument between the victim and Brandon Payne, a friend of the defendant. A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. The trial judge subsequently denied the defendant’s motion for a new trial. On appeal from his conviction and from the denial of his motion for a new trial, the defendant claims that (a) his trial counsel rendered constitutionally ineffective assistance; and (b) on the eve of trial, the judge erred by denying the defendant’s motion for disclosure of the identity of an informant who, according to a report prepared by the Federal Bureau of Investigation (FBI), had heard that Payne, not the defendant, had shot the victim. We reject the defendant’s ineffective assistance of counsel claim, but remand for further proceedings in connection with his motion for disclosure of the informant’s identity. We do not now see cause to exercise our authority under G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree or to order a new trial. 1. Background. The evidence at trial included the following. Soon after 1 A.M. on a night in November, 2009, police found the victim lying on the ground in a parking lot across the street from a nightclub, with a gunshot wound […]
Malloch v. Town of Hanover, et al. (Lawyers Weekly No. 10-163-15)
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; SJCReporter@sjc.state.ma.us SJC-11713 KRISTIN MALLOCH vs. TOWN OF HANOVER & others.[1] Suffolk. January 5, 2015. – September 24, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Civil Service, Decision of Civil Service Commission, Eligibility list, Judicial review, Police, Promotion. Police, Promotional examination. Administrative Law, Agency’s interpretation of statute, Decision, Findings, Judicial review, Agency’s authority, Substantial evidence. Practice, Civil, Review respecting civil service. Civil action commenced in the Superior Court Department on March 28, 2013. The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Frank J. McGee for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the personnel administrator of the human resources division of the Commonwealth. Galen Gilbert, for Carla Sullivan, amicus curiae, submitted a brief. DUFFLY, J. The town of Hanover (town) had two open positions for sergeants in its police department. Although the plaintiff, Kristin Malloch, had scored highest on the civil service examination for promotion to a police sergeant position, the town decided to bypass Malloch and promote the candidates who had scored second and third highest on the sergeants’ examination. Malloch appealed the town’s decision to the Civil Service Commission (commission), pursuant to G. L. c. 31, § 2 (b), arguing that, where an appointing authority promotes a candidate other than the candidate ranked highest on the certification list; the promotion will not become effective until the appointing authority’s written statement of reasons for the bypass “has been received by the administrator,” G. L. c. 31, § 27;, that “received” in this context means substantially reviewed and approved by the administrator; and that the administrator[2] may not, in accordance with G. L. c. 31, § 5 (l), delegate that function to the town’s appointing authority. Malloch argued also that, even if the delegation were permissible, her bypass was not supported by evidence of a reasonable justification for the bypass. The commission denied her appeal, and Malloch sought review in the Superior Court pursuant to G. L. c. 30A, § 14. Agreeing with Malloch that the statutory requirement that the written statement of bypass reasons must be “received by” the administrator means “reviewed and approved by” the administrator, a Superior Court judge concluded that it was not “practicable,” see G. L. c. 31, § 5 (l), for the […]
Sherman v. Town of Randolph, et al. (Lawyers Weekly No. 10-164-15)
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; SJCReporter@sjc.state.ma.us SJC-11711 SCOTT SHERMAN vs. TOWN OF RANDOLPH & others.[1] Suffolk. January 5, 2015. – September 24, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Civil Service, Decision of Civil Service Commission, Eligibility list, Findings by commission, Judicial review, Police, Promotion. Police, Promotional examination. Administrative Law, Decision, Findings, Judicial review. Practice, Civil, Review respecting civil service. Civil action commenced in the Superior Court Department on May 18, 2012. The case was heard by Heidi E. Brieger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by her. The Supreme Judicial Court granted an application for direct appellate review. Frank J. McGee for the plaintiff. Bryan F. Bertram, Assistant Attorney General, for the personnel administrator of the human resources division of the Commonwealth. John Foskett for town of Randolph. DUFFLY, J. The town of Randolph (town) decided to bypass the plaintiff, Scott Sherman, and appoint three candidates with lower scores on the police sergeant’s examination to its three open police sergeant positions. Sherman appealed, and, after an evidentiary hearing, a Division of Administrative Law Appeals (DALA) magistrate recommended that Sherman’s appeal be dismissed. The Civil Service Commission (commission) adopted the magistrate’s findings and recommendation, and dismissed the appeal, concluding that there was “independent and reasonable justification” to bypass Sherman, although noting serious flaws in the town’s interview process. Sherman sought review of the commission’s decision in the Superior Court. A Superior Court judge denied Sherman’s motion for judgment on the pleadings and his motion for reconsideration, and judgment entered for the commission. Sherman appealed, and we allowed his petition for direct appellate review. Sherman argues that his bypass was impermissible because the personnel administrator of the Commonwealth (administrator)[2] improperly delegated to the appointing authority its duty under G. L. c. 31, § 27, to “receive” statements of reasons for bypasses. He argues also that the town’s decision to bypass him in favor of candidates with lower scores on the civil service examination was not supported by a reasonable justification because the commission determined that the town’s interview process was “fatally flawed.” In Malloch v. Hanover, 472 Mass. (2015), we determined that the administrator permissibly may delegate to an appointing authority its duty under G. L. c. 31, § 27, […]
Commonwealth v. Hatzigiannis (Lawyers Weekly No. 11-150-15)
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; SJCReporter@sjc.state.ma.us 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 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 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 […]
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