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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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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