The Indiana Supreme Court affirmed battery charges against a man who said the evidence against him was “testimonial hearsay” and violated his federal and state confrontation rights.
Dee Ward was convicted of Class C felony battery, Class C felony intimidation and Class A misdemeanor battery and domestic battery. Ward was charged with battering his girlfriend, but she did not appear at trial. The state relied on her statements to the paramedic, where she said Ward was her attacker as she was being treated for her injuries.
The case was transferred from the Indiana Court of Appeals, which held Ward waived his Indiana constitutional claim by failing to separately argue that issue to the trial court.
Chief Justice Loretta Rush said the statements that Ward’s girlfriend made while being treated for her injuries were non-testimonial and therefore admissible during trial. Ward’s Sixth Amendment rights were not violated. Asking the girlfriend who attacked her was not done with the intent of getting a trial testimony, but was instead aimed at providing proper medical and psychological care and treatment.
Ward also claimed his Article 1, Section 13 rights were violated because he did not meet the witness face-to-face in the courtroom, but Rush said the witnesses in this case were the nurse and paramedic, not the girlfriend, and they both were in court.
The state also claimed in a threshold argument that Ward waived his claim for appellate review altogether. It said Ward’s objections were not based upon the Indiana Constitution, but the federal Constitution. However, Rush said the state was mistaken, and Ward included both constitutions in his objections.
Justice Robert Rucker dissented in which Justice Brent Dickson concurred. They disagreed that the statements the girlfriend made to the forensic nurse were non-testimonial. Rucker said the court went too far in assuming that the identity of the abuser is necessary in all cases involving a medical care provider, and he believes it sets a dangerous precedent.
Rucker said the forensic nurse was serving in a dual capacity, both getting information for medical treatment and gathering evidence for use in criminal prosecution. The girlfriend was presented with a general information sheet, which told her the forensic nurse would be gathering evidence for trial.
The case is Dee Ward v. State of Indiana, 49S02-1602-CR-96.