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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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