15 Mass. App. Ct. 929

January 26, 1983

1. Assuming without deciding that it was error to admit the hospital record without excising the history of the rape and beating reported by the victim to the hospital's "psychiatric nurse practitioner and rape victim counselor" (see G. L. c. 233, Section 79; Bouchie v. Murray, 376 Mass. 524 , 529-530 [1978]) the evidence was merely cumulative and clearly harmless in view of the fact that the nurse practitioner was herself a witness at the trial and properly testified as a fresh complaint witness to the same history in substantially the same language. Commonwealth v. Izzo, 359 Mass. 39 , 43 (1971). See also Commonwealth v. Underwood, 7 Mass. App. Ct. 140 , 141-142 (1979). 2. There was no error in the admission of the statement made by the defendant's wife to the police (when they came to his apartment to arrest him) denying that he was at home and asserting that the defendant (who was lying in bed nearby and awake) was someone else. Her statements were not hearsay because they were not offered to prove the truth of her assertions. If in some circumstances there might be unfairness in allowing a jury to impute one person's consciousness of guilt to another, there was no such unfairness here, where the defendant also explicitly denied to the police that he was Kenneth Reed and continued to deny that he was Kenneth Reed as late as the booking procedure at the station house.

Judgments affirmed.


15 Mass. App. Ct. 929

January 27, 1983

The defendant was convicted by a Superior Court jury on six indictments charging him with rape and various assaults. In his appeal he contends that the judge improperly denied a motion to suppress identification and also committed error in allowing the prosecution to place a composite sketch in evidence. We affirm.

1. The original identification of the defendant by the victim was made as a result of an encounter arranged by a friend of the victim. The police

Page 930

played no part in regard to the original identification, see Commonwealth v. Charles, 4 Mass. App. Ct. 853 (1976), and, therefore, where it has been established "that the initial identification is the product of something other than improper action by the State, due process does not require the suppression of it or its repetitions." Commonwealth v. Wheeler, 3 Mass. App. Ct. 387 , 392 (1975). There was nothing impermissibly suggestive in the subsequent photographic identification arranged by the police. Commonwealth v. Napolitano, 378 Mass. 599 , 602-603 & n.6 (1979). Commonwealth v. LaPierre, 10 Mass. App. Ct. 641 , 643-644 (1980).

2. The defendant's argument that a composite sketch, drawn by a police officer in collaboration with the victim, was improperly admitted in evidence is answered by Commonwealth v. Blaney, 387 Mass. 628 (1982). In Blaney, as here, the composite sketch was merely cumulative and corroborative of more compelling photographic and in-court identifications made by the victim. Id. at 630-633.

Judgments affirmed.