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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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