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Victim's statements to nurse allowed, but judges reverse convictions

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The Indiana Court of Appeals concluded that a victim’s statements detailing her physical attack and identifying her attacker were admissible in court and were nontestimonial, so the defendant’s confrontation rights weren’t violated. However, the judges reversed the man’s convictions because the trial court shouldn’t have admitted prior misconduct evidence involving the defendant and the victim.

Dennis Perry challenged his convictions of strangulation, criminal mischief, and possession of cocaine stemming from an alleged attack on his ex-girlfriend, N.D. She told police and a forensic nurse that Perry had forced her to have sex in her rental car and when she tried to get away, he hit her car with a tire iron. The drug conviction came from police finding cocaine in the back of his truck after stopping him because the car matched the description of the suspect’s truck.

Before trial, N.D. died from a seizure disorder, but the forensic nurse and investigating officers did testify at trial. The nurse’s report was admitted into evidence over the defense’s hearsay objection. On cross-examination, the state elicited that Perry had been arrested and charged on five previous occasions with domestic disturbances involving N.D.

In Dennis Perry v. State of Indiana, No. 49A05-1012-CR-774, the appellate court held that the medical record completed by the forensic nurse and N.D.’s statements within that record did not constitute inadmissible hearsay. Indiana Evidence Rule 803(4) allows for the “medical diagnosis exception” to the hearsay rule, under which N.D.’s out-of-court statements fall. The records prepared by the forensic nurse fall under the “records of regularly conducted business activity” exception under Rule 803(6).

The judges then had to determine whether N.D.’s statements to the nurse were “testimonial” for the purpose of the Sixth Amendment – that is, what was the primary purpose of the nurse’s examination and N.D.’s statements? Citing State v. Stahl, 855 N.E.2d 834 (Ohio 2006), and other jurisdictions that reached similar conclusions as Stahl, the COA concluded that N.D.’s statements describing her physical attack and identifying Perry as her assailant were nontestimonial.

“At any rate, evaluating the encounter objectively and in light of all relevant factors, we still cannot say that the ‘primary purpose’ of the exam from either the patient’s or caretaker’s perspective was to prove past facts with an eye toward trial. To echo the Ohio Supreme Court, that function was at best secondary to the principal objective of providing and receiving medical attention,” wrote Judge Nancy Vaidik.

The judges also held that the medical record prepared by the nurse did not run afoul of Perry’s Sixth Amendment rights.

But they concluded that the trial court erred when it allowed for evidence of previous arrests and charges regarding domestic violence between Perry and N.D. to be admitted into evidence. The state claimed that Perry opened the door for the evidence in his testimony, but the appellate court disagreed. The state’s evidence only consisted of the arrests and charges, as Perry was never convicted on those charges, and no additional proof that he committed the prior acts at issue.

This error was not harmless, so Perry’s convictions should be reversed, but he may be retried, because the judges found retrial wouldn’t violate double jeopardy.

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  1. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

  2. Mr. Straw, I hope you prevail in the fight. Please show us fellow American's that there is a way to fight the corrupted justice system and make them an example that you and others will not be treated unfairly. I hope you the best and good luck....

  3. @ President Snow - Nah, why try to fix something that ain't broken??? You do make an excellent point. I am sure some Mickey or Minnie Mouse will take Ruckers seat, I wonder how his retirement planning is coming along???

  4. Can someone please explain why Judge Barnes, Judge Mathias and Chief Judge Vaidik thought it was OK to re weigh the evidence blatantly knowing that by doing so was against the rules and went ahead and voted in favor of the father? I would love to ask them WHY??? I would also like to ask the three Supreme Justices why they thought it was OK too.

  5. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

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