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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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