ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

ADVERTISEMENT