The Massachusetts Appeals Court today reversed the sex conviction of a Lynn oral surgeon who had been convicted of fondling the breast of a sedated high school student. The name of the case is Commonwealth v. Hatzigiannis.
The defendant was convicted of indecently assaulting his patient following an incident that occurred in November of 2010. The victim met the defendant the day before she was going to have her wisdom teeth removed. During the meeting, the defendant was flirting with her, calling her attractive, and touching her knee. Nevertheless, the procedure progressed as planned the next day, with the defendant sedating the victim by way of an IV. The defendant, his female surgical assistant, and another employee extracted the teeth. At the end of the procedure, the defendant and his assistant were left alone in the room with the victim, who had not yet woken up. The assistant began removing the items that had been used during the procedure, including the intravenous line, a blood pressure cuff, and a bib. As she was putting away the equipment, the assistant glanced back at the victim and saw the defendant standing immediately next to her and cupping her left breast with his right hand. The defendant then asked the assistant to retrieve ice packs for the victim, and the assistant left the room. When she returned, the defendant was making notes on the victim’s medical chart.
The issue on appeal was whether it was proper for the trial judge to allow the office manager to testify that the assistant told her about the indecent assault. According to the office manager, the assistant told her she was 100 percent sure she saw the defendant touch the patient on the breast.
The assistant’s statement to the office manager is clearly hearsay – it’s an out-of-court statement offered to prove the truth of the matter therein. The question is whether the statement constituted an exception to the hearsay rule that would allow for its introduction. The trial judge allowed the statement to be admitted as a “prior consistent statement,” which is permissible when the defendant claims a witness recently contrived his or her statement or the statement is the product of bias. However, the defendant never insinuated that the assistant’s statement was fabricated or the result of bias. It was the defendant’s position all along that the assistant had simply made a mistake in thinking she witnessed an assault. Therefore, the prior consistent statement exception to the hearsay rule was inapplicable to this case, and the testimony should not have been permitted.
The Appeals Court concluded that the error unfairly prejudiced the defendant, and he is therefore entitled to a new trial. Unfortunately for the defendant, he was immediately taken into custody and transported to jail following his conviction, and he has in all likelihood served his entire sentence. Perhaps the only benefit to another trial is if the defendant is found not guilty, he will not be required to register as a sex offender, which carries significant hardships.