The defendant was convicted on an indictment charging him with assault and battery by means of a dangerous weapon. At trial, the victim, Thomas O’Neil, and his former girlfriend (Burns) refused to implicate the defendant, although each had, prior to trial, made statements that Greene had shot O’Neil. The defendant in his appeal claims the judge erred in admitting in evidence prior statements of Burns and O’Neil, in finding that both were hostile witnesses, and in allowing the prosecutor, in closing argument, to urge that Burns testified as she did at trial because she was “scared.” We affirm the conviction.
1. Bums’ prior statement. Burns testified that, on the night of shooting, she witnessed a fight in her apartment between the defendant’s brother and O’Neil in the aftermath of which Greene’s brother had been bleeding. Burns left to call the police, and on her return, she found O’Neil still in the apartment. He left a few minutes later, and she followed him to Bunker Hill Street in Charlestown. Although she did not remember whether she saw or heard anything unusual, she testified that she had been present during the shooting, and that O’Neil had been shot at a distance from her of only fifteen feet. After she testified that she could not recall any person who had been at the scene, she was asked whether she remembered giving a statement shortly after the shooting to a police officer. She acknowledged that she had made a statement to a police officer named Timmy Callahan in which she had indicated that she knew who had shot O’Neil. Burns was then shown the statement. Thereafter, she testified that she gave the statement about fifteen minutes after the shooting, that she signed the statement, and that the statement was true at the time she signed it. When asked, “Is there any reason why the statement shouldn’t be true today if it was true February 7, 1978?” (the day of the shooting), the witness answered, “No, I don’t know.” She would not say the statement was true at the time of trial. “Today, I don’t remember.” In reference to the question whether James Greene had shot O’Neil, she stated, “I don’t remember seeing it but I do remember saying it.”
*690 The judge allowed the prosecutor, over the defendant’s objection, to read to the jury and introduce as an exhibit the police report containing Burns’ signed statement. It identified Greene as the assailant and also indicated that Greene at a later time had pointed his gun at Burns, as well.
Stressing the crucial importance of the statement, the defendant argues that, at most, Burns’ statement should have been admitted for impeachment purposes and not for its full probative value. He claims that in order to be admissible for its truth, a statement must be adopted by the witness as being true at the time of trial. Here, Burns testified only that the statement was true at the time it was made and would not attest to its truth at the time of the trial. The defendant correctly points out that the cases cited by the Commonweálth are distinguishable. In
Commonwealth
v.
Fiore,
However, under the past recollection recorded exception to the hearsay rule, it is not required that a statement be adopted as being true or more accurate at the time of trial to be admissible. What is required is that the witness “assert that the record
correctly represented his knowledge and recollection
at the time of making.” 3 Wigmore, Evidence § 746(2) (Chadbourn rev. 1970).
United States
v.
Edwards,
539 F.2d.689, 691-692 (9th Cir.), cert, denied,
The defendant raised no objection at trial nor does he argue on appeal that Burns’ failure of memory so affected the defendant’s right of cross-examination as to violate his confrontation rights. See
California
v.
Greene,
*692
That portion of Burns’ statement which identified Greene was also admissible on an independent ground; “when a witness is unable or unwilling to make an in-court identification, out-of-court identifications may be admitted as substantive evidence of guilt as long as the defendant’s due process and confrontation rights are satisfied.”
Commonwealth
v.
Fitzgerald,
The defendant also argues that the police report contained statements of police officers which should have been excised. This claim has no merit because at the time the police report was read to the jury, the defendant did not request, as required, that the portion of the report to which he objected be deleted.
Commonwealth
v.
Sandler,
2.
O’Neils prior statements.
The trial judge, pursuant to G. L. c. 233, § 23, which states the conditions under which a party may impeach his own witness, permitted two police officers to testify to prior inconsistent statements made by O’Neil. His prior statements would not have been admissible under the statute had he only claimed a failure of memory at trial.
Commonwealth
v.
Reddick,
3.
Other alleged errors.
The judge did not abuse his discretion in declaring both Burns and O’Neil to be hostile witnesses or in permitting the prosecutor to ask them leading questions in light of their incredible failures of memory.
Commonwealth
v.
Fiore,
Judgment affirmed.
Notes
We note in passing that the introduction of evidence under the past recollection recorded exception to the hearsay rule has been held not to violate a defendant’s right of confrontation by several Federal Circuit Courts of Appeal, e.g.,
United States
v.
Kelly,