Perry v. State

• Citation: 956 N.E.2d 41
• Decision Date: 22 August 2011
• Docket Number: No. 49A05–1012–CR–774.,49A05–1012–CR–774.
• Parties: Dennis PERRY, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

956 N.E.2d 41

Dennis PERRY, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1012–CR–774.

Court of Appeals of Indiana.

Aug. 22, 2011.

Patricia Caress McMath, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, James E. Porter, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Dennis Perry appeals his convictions for strangulation, criminal mischief, and possession of cocaine. Perry was accused of assaulting his ex-girlfriend, N.D. After the alleged assault, N.D. sought assistance from police and was brought to the hospital for examination. She told her examining nurse that she had been sexually assaulted and strangled. She further identified Perry as the assailant. N.D.'s statements were admitted at trial via a medical record prepared by the examining nurse. N.D. did not testify. Perry argues that N.D.'s statements constituted inadmissible hearsay and that their admission violated his Sixth Amendment right to confrontation. We conclude that N.D.'s material statements—those detailing her physical attack and identifying her attacker—were admissible pursuant to the medical diagnosis exception to the hearsay rule. We further conclude that N.D.'s statements were nontestimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and thus did not implicate Perry's confrontation rights. However, at trial, the State also elicited that Perry had been arrested and charged in connection with five prior domestic disturbances involving N.D. We conclude that the trial court erred by admitting this prior misconduct evidence, as it consisted only of arrests and charges. We further conclude that the error was not harmless and warrants reversal, though we find sufficient evidence to sustain Perry's convictions such that retrial would not violate double jeopardy. Accordingly, we reverse and remand.

Facts and Procedural History

One morning at approximately 7 a.m., N.D. arrived at an Indianapolis police station panicked and hysterical. She had a visible scratch on her shoulder and was looking behind her back repeatedly. N.D. told the desk attendant that she had been held against her will and that she was scared. N.D. provided the name and a description of her assailant as well as his address and a description of his truck. The attendant radioed for assistance. Parked outside the station was N.D.'s rental car. It was severely dented and the windshield was shattered.

Officer Shay Foley arrived at the station within three minutes of receiving the dispatch. N.D. was crying and shaking. She told Officer Foley that she had been raped. Officer Foley brought N.D. to an interview room. N.D. calmed down within fifteen minutes and relayed a sequence of events that had occurred the previous night and that morning. Officer Foley observed injuries on N.D.'s neck and called for medics.

Officer Mark Euler also received the initial dispatch and located a truck matching a description of the suspect's about two or three minutes later. Officer Euler initiated a stop and identified Perry as the driver. Officer Euler instructed Perry to exit the vehicle. There were no other passengers. Perry did not feel well, as his colostomy bag had ruptured. A medic responded and brought Perry to Wishard Hospital.

Officer Ted Brink inventoried Perry's truck. The vehicle contained several bags of clothes. A plastic bag in the bed of the truck contained a pair of men's jeans. Officer Brink found a substance later identified as crack cocaine inside the jeans pocket. The cocaine totaled approximately ten grams.

N.D. was transported to Methodist Hospital and examined by emergency/forensic nurse Natalie Calow. Nurse Calow later described her protocol as follows:

First the patient arrives at the ER. Usually a detective brings them or a victim's assistant does. I meet with them. We just do a quick medical history and vital signs. And the social work[er] meets with them. When we meet with them we're assessing the patient at first, her demeanor, any—I need to know her state of mind. Any medical history ... if she knows the assailant's medical history too it's important. That guides me, the treatment plan that I'm going to do. Where I need to look for injuries. I get the history of the assault too with the social work[er] present. We both do. Then after I get all the history ... I set up my room ‘cause there's certain swabs we take, certain pictures we take depending on what she tells me. And the social work [er] stays, makes sure she does some counseling with the patient. I go back in, I tell the patient everything I'm going to do about the exam. So, then I take the patient into the exam room and then I just start my head to toe assessment. I check the patient over straight head from toe to see if any abrasions that the patient might not know about or does know about and ask them what happened there. I photograph them as I'm going down. And then I do the speculum exam at the very end. And then afterwards I offer them treatment for any STDS they might have been exposed to, HIV and then I make sure they have a safe place to go. And call for their ride or help them with social work and follow-up counseling I help them with.

Tr. p. 111–12. Nurse Calow followed the foregoing protocol in treating N.D.

During the exam, N.D. told Nurse Calow that she had been sexually assaulted and strangled inside her car. N.D. identified Perry, her ex-boyfriend, as the assailant. Nurse Calow observed various injuries to N.D.'s neck, ears, and back. The neck injuries included a “ligature mark” which N.D. said was caused by a necklace. Nurse Calow took pictures of N.D.'s injuries. She also conducted body and genital swabs for DNA and collected N.D.'s underwear, all of which were sent to the crime lab for analysis. Nurse Calow completed a medical report which documented N.D.'s treatment, relayed N.D.'s account of the incident in question, and identified Perry as the suspected perpetrator.

Analysts later determined that DNA samples from N.D.'s neck and genitals matched Perry's DNA profile.

The State charged Perry with Class B felony rape, Class C felony criminal confinement, Class D felony strangulation, Class C felony possession of cocaine, and Class D felony criminal mischief for damaging N.D.'s rental car.

N.D. did not testify at trial, but Nurse Calow and the investigating officers did. Nurse Calow's examination report was admitted into evidence over the defense's hearsay objection.

Perry testified in his defense. He stated that he was involved with N.D. for six years, and he admitted that he had sex with her on the night in question. Perry maintained, however, that he exited N.D.'s rental car, N.D. tried to run him over, and out of fear he began striking the car with a tire iron. Perry further testified that the truck he was driving belonged to his daughter, and he claimed that a man named James Ward used the truck periodically. On cross-examination, the State elicited that Perry had been arrested and charged on five prior occasions for domestic disturbances involving N.D.

Perry was convicted of strangulation, possession of cocaine, and criminal mischief. The jury deadlocked on rape and criminal confinement. Perry now appeals.

Discussion and Decision

Perry raises several issues, only three of which we find necessary to address: (I) whether the trial court erred by admitting Nurse Calow's examination record, (II) whether the court erred by admitting evidence of Perry's prior arrests for domestic violence involving N.D., and (III) whether the evidence is sufficient to sustain Perry's convictions such that retrial would not offend double jeopardy.¹

I. Admission of Nurse Calow's Medical Record and N.D.'s Statements Therein

Nurse Calow completed a medical record in connection with her examination of N.D. State's Ex. 6A. The report identified “Dennis [P]erry” as the suspected assailant. Id. It relayed N.D.'s statements that Perry “grabbed her around the neck” and that N.D. experienced pain from an “attempted strangulation.” Id. The report included the following narrative:

Pt states she was going to a gas station on the east side to meet up with the assailant's cousin Tracey at around 11 pm. When she got to the gas station she didn't see Tracey but Mr. [P]erry jumped in the passenger's side of the car. Mr. [P]erry then ordered her to drive him to a friend's house to pick up some dope and then to a nearby Taco Bell. Pt states she is afraid of Mr. [P]erry so she did as he asked because she didn't want to get hurt. He then ordered her to drive to 1402 S. Linden St in the back of the house. The car [N.D.] was driving at the time was a rental car. She said they sat in the car talking about their past relationship troubles when all at once Mr. [P]erry said “I want to fuck”. Pt said no due to her being on her period now. Mr. [P]erry then grabbed her by the waist and pulled her on top of him. She kept telling him no then Mr. [P]erry ordered her to play with his penis. Mr. [P]erry then stated he still wanted to fuck. She then asked Mr. [P]erry to put on a condom thinking this would throw him off due to her knowing he doesn't like to wear a condom. He then pulled her pants off and told her he wasn't going to wear a condom. He then ordered her to take out her tampon which she did and threw it on the floor of the car. He then said he was about to “nut” and pulled her on top of him so that his penis was inside her. She then stated he was inside for about 10 seconds when he ejaculated in her. She then got back over into the drivers seat. Mr. [P]erry the[n] reached for his pot in the floorboard and started asking who[se] car she was driving. He reached over and started strangling her with his hands. Mr. [P]erry kept asking her about the car and...