25 Mass. App. Ct. 983 | Mass. App. Ct. | 1988
The words in question were not offered under the hospital records exception to the hearsay rule, G. L. c. 233, § 79, because they did not relate to treatment and medical history. See Bouchie v. Murray, 376 Mass. 524, 528
We recognize that, to qualify an utterance for admission as a prior inconsistent statement, the proponent need not show a direct contradiction in plain terms between the earlier statement and the trial testimony. Commonwealth v. West, 312 Mass. 438, 440 (1942). Commonwealth v. Sim-monds, 386 Mass. 234, 242 (1982). The judge could (and did) properly conclude, however, that the defendant had failed to show with sufficient certainty that the words “[cjannot identify assailant” were reflective of a statement to that effect by the victim as contrasted with a conclusion by the physician. The words may have represented some variation of a statement by the victim that her assailant was not someone she knew or a conclusion by the physician that the vagueness of her description (there is evidence that she was nearly hysterical) precluded her being able to identify her assailant. On this the physician could shed no light, as he had no recollection of the conversation, and his detailed reconstruction thereof involved patent speculation. “Where . . . as here the statements are not plainly contradictory, the judge has wide discretion.” Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982). Commonwealth v. McGowan, 400 Mass. 385, 391 (1987). See also Commonwealth v. Sawyer, 389 Mass. 686, 700-701 (1983). Contrast Commonwealth v. Allen, 22 Mass. App. Ct. 413, 417-423 (1986), where the excluded evidence was more clearly probative than the evidence excluded here. While many judges might have exercised that wide discretion in the defendant’s favor, the ruling here was not an abuse of discretion.
No question has been raised concerning other evidence adduced at trial that tended to corroborate the victim’s identification of the defendant as the attacker.
Judgments affirmed.