78 Mass. App. Ct. 62
Daye rule, Affidavits Submitted in Support of Abuse Prevention Orders, Prior Inconsistent Statements, Sufficiency of Evidence
The defendant was charged with assault and battery. At trial, the mother of the victim sought to recant her claims made to obtain the abuse prevention order against the defendant, claiming that the defendant had accidentally hit the victim while talking with his hands instead of intentionally striking the victim. The prosecutor sought and was allowed to introduce the mother’s prior testimony from the hearing for the abuse prevention order and the affidavit submitted in support of the order despite the defendant’s objection. The judge later found the defendant guilty of assault and battery. On appeal, the defendant challenged the extension of the rule established in Commonwealth v. Daye, 393 Mass. 55 (1984), which allows a prior inconsistent statement to be used substantively if the declarant is available for cross-examination, to include affidavits from a request for an abuse prevention order. The defendant also challenged the sufficiency of the evidence for his conviction.