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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.
