The Massachusetts Appeals Court reversed the indecent assault and battery conviction of Island businessman Saurabh Chhibber, vacated his 2.5 year jail sentence, and ordered a new trial, in a March 16 ruling.
Mr. Chhibber was convicted of two counts of indecent assault and battery on a person over the age of 14 following a jury trial before Edgartown District Court Associate Justice Lance Garth in June of 2010. Mr. Chhibber was originally charged with rape.
Mr. Chhibber remains incarcerated at the Dukes County House of Correction. He has less than two months left on his original sentence, and could be released as early as June 2, according to his attorney.
As part of the complex appeal procedure, the Cape and Islands district attorney has filed a motion for further review by the appeals court, which effectively keeps him in jail, though the court overturned his conviction in a strongly worded legal opinion.
In Edgartown District Court Friday, April 20, Mr. Chhibber’s attorney, George Hassett, asked Associate Justice Don Carpenter to stay the sentence and release Mr. Chhibber from jail, while he continues his appeal. Mr. Chhibber’s wife, sister, and mother were in the courtroom as Mr. Chhibber’s attorney argued for his release.
He said Mr. Chhibber has two children, his youngest born while he served his sentence, and has no disciplinary actions against him during his incarceration.
In court Friday, Cape and Islands assistant district attorney Tucker Greene argued that Mr. Chhibber should remain in jail until the Commonwealth can pursue its own appeal of the decision overturning the conviction. The assistant district attorney also said Mr. Chhibber is not a legal citizen of the United States, and Immigration and Customs Enforcement (ICE) has issued a detainee order. The detainee order requires local authorities to hold a person in custody for up to 48 hours, while ICE decides whether to pursue deportation or exclusion from the country.
Judge Carpenter denied the motion to free Mr. Chhibber, without comment from the bench.
In its ruling, a three-judge panel of the appeals court said Judge Garth abused his discretion by allowing someone other than the first person the victim told about the incident to testify in the trial.
In sex crime cases, under Massachusetts law, the first person the victim tells of an assault can testify, in an exception to the rules of evidence, which ordinarily would not permit hearsay testimony.
After an evidentiary hearing, Judge Garth allowed another witness, the second person the victim told of the assault, to testify. That witness described a detailed account of the assault when he testified about his conversation with the victim.
The court said only the first person the victim told of the assault should have testified.
“The judge’s finding to the contrary is clearly erroneous,” the court wrote in its opinion. “Commonwealth may not ‘pick and choose’ among various complaint witnesses to locate the one with the most complete memory, the one to whom the complainant related the most details, or the one who is likely to be the most effective witness,'” the court wrote.
“Whether viewed as a preserved error ar analyzed for a substantial risk of miscarriage of justice, the error requires a new trial. We cannot say that the error ‘did not influence the jury, or had but a very slight effect,’ or that we have no ‘serious doubt whether the result of the trial might have been different had the error not been made,'” the court wrote, quoting from case law.
Verdict in, now out
Mr. Chhibber, then 29, was accused of attacking a 19-year old acquaintance who was drinking heavily and distraught over a romantic rejection on August 3, 2009.
According to testimony at the trial, and police reports, Mr. Chhibber guided the woman to a dark, deserted area in the Martha’s Vineyard Campmeeting Association grounds, pinned her down and sexually assaulted her.
Mr. Chhibber testified in his own defense at his trial and vigorously denied the allegations. The jury returned guilty verdicts on both indecent assault charges. In addition to the 2.5-year jail sentence, Mr. Chhibber was sentenced to probation for the rest of his life and ordered to register as a sex offender.
At the time of his 2010 conviction, Mr. Chhibber was co-owner of Island Authentics, a souvenir and clothing store on Circuit Avenue in Oak Bluffs. Another branch of the store in Vineyard Haven has since closed.
In an unrelated case, in 2002, police arrested Mr. Chhibber and the court charged him with rape, according to court records. On February 23, 2003, he consented to a plea agreement. The Commonwealth dismissed the rape charge, and Mr. Chhibber agreed the state had sufficient facts to prove indecent assault and battery. The court continued that case without a finding for one year.