Ward v. State, 49S02–1602–CR–96.

Citation50 N.E.3d 752
Case DateFebruary 19, 2016
CourtSupreme Court of Indiana

50 N.E.3d 752

Dee WARD, Appellant (Defendant below)
STATE of Indiana, Appellee (Plaintiff below).

No. 49S02–1602–CR–96.

Supreme Court of Indiana.

Feb. 19, 2016.

50 N.E.3d 753

Karen Celestino–Horseman, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02–1401–CR–25

RUSH, Chief Justice.

Dee Ward was charged with battering J.M., his girlfriend. During treatment for her injuries, J.M. told a paramedic and a forensic nurse that Ward was her attacker. When J.M. failed to appear for depositions or to testify at trial, the State relied on her statements to the paramedic and the forensic

50 N.E.3d 754

nurse to implicate Ward, over Ward's objection that the evidence was “testimonial hearsay” that violated his federal and State confrontation rights.

We hold the statements are non-testimonial. Asking J.M. who attacked her was not aimed at obtaining a substitute for trial testimony—rather, it was a vital part of providing appropriate medical and psychological treatment and service referrals, as the applicable standard of care requires. Accordingly, J.M.'s hearsay statements were properly admitted into evidence. We therefore affirm Ward's convictions for C-felony battery and A-misdemeanor domestic battery.

Facts and Procedural History

As of April 2013, Ward and J.M. had been dating and living together off and on for about two years and had a child together. During that time, J.M. also sometimes lived with her mother and step-father. Ward visited the parents' home often, and they were familiar with his truck.

On the afternoon of April 10, 2013, J.M.'s step-father saw Ward's pick-up truck pull in front of his house. J.M. got out from the passenger side walking “very gingerly,” Tr. 144, and then the truck sped away. J.M. was hanging her head and crying as she came into the house. When her step-father asked what was wrong, J.M. responded, “I'm hurt” and “Where's mom?” Tr. 147. J.M. pulled down her pants to show her mother her buttocks and legs which revealed welts and bruising. Mother escorted J.M. to her bedroom and—over J.M.'s protests—told her step-father to call 911.

At about 2:24 p.m., paramedic Linda Hodge–McKinney (“the Paramedic”) received an “[a]ssault trauma” dispatch and arrived at the scene about three minutes later. Tr. 195. The Paramedic found J.M. lying on a bed in a fetal position crying, with extensive bruising on her body. When the Paramedic asked J.M. to rate her pain “[o]n a scale of one to ten, with ... ten being the most amount of pain you've ever been in,” J.M. rated her pain a ten. Tr. 205–06. A police officer who arrived shortly after the paramedics also observed “[m]assive bruising, basically all over her body especially her legs and buttocks, welts, dark blue and black bruises. Pretty severe.” Tr. 161. After the officer left the room, Tr. 162, J.M. advised the Paramedic that her boyfriend “Dee” was the source of her injuries, Tr. 204.

Concerned that J.M. may have suffered internal injuries, the Paramedic transported J.M. to a local hospital, administering intravenous pain medication along the way. Tr. 243. At the emergency room, forensic nurse Julie Morrison (“the Forensic Nurse”) treated J.M., observing that she was “obviously in a lot of discomfort” and “rolled up in a ball ... in a near fetal position on one side, all hunched over, sort of in a protective sort of stance.” Tr. 242–43. When the Forensic Nurse asked what happened, J.M. stated that she had been “struck repeatedly with a belt,” Tr. 244, and that “it was her boyfriend Dee Ward” who beat her, Tr. 266. Meanwhile, the Forensic Nurse oversaw J.M.'s safety and discharge planning, classifying J.M. as a “no information patient” to prevent people (specifically the attacker) from learning her whereabouts. Tr. 290–91. Further examination and testing ruled out internal injuries, and J.M. was discharged to her parents' home later that evening with referrals to two domestic-violence support organizations, a recommendation for counseling, a prescription for pain medication, and instructions for minimizing the swelling. Tr. 56 –58 ; State's Ex. 14, Ex. Confidential Vol. at 100–01.

The State initially charged Ward with B-felony criminal confinement, C-felony battery, C-felony intimidation, and A-misdemeanor

50 N.E.3d 755

battery and domestic battery. It later amended the charging information to include a second count of C-felony battery.

Ward filed a motion to exclude J.M.'s testimony, after she twice failed to appear for scheduled depositions. The State responded that J.M. did not have notice of the scheduled depositions because she had been reported missing shortly after the assault and was classified as a missing person. The trial court denied Ward's motion. Over a month later, noting that J.M. was still a missing person and efforts by law enforcement to locate her had been unsuccessful, the State provided notice of intent to introduce J.M.'s statement identifying Ward as her attacker through the testimony and records of the Paramedic and the Forensic Nurse. Following a pretrial hearing, the trial court granted that motion.

At a bench trial, the trial court dismissed the criminal confinement charge on Ward's motion, but found him guilty of the remaining charges. At sentencing, because of double jeopardy concerns, the trial court entered judgment of conviction on one count of C-felony battery and one count of A-misdemeanor domestic battery, then sentenced Ward to concurrent terms of four years and one year, respectively.

Ward appealed, arguing in part that J.M.'s statements were testimonial hearsay in violation of his confrontation rights under the Sixth Amendment and Article 1, Section 13 of the Indiana Constitution. The Court of Appeals held that Ward waived his Indiana constitutional claim by failing to separately argue that issue to the trial court, and that the challenged statements were nontestimonial and therefore did not violate the Sixth Amendment. Ward v. State, 15 N.E.3d 114, 119, 121 (Ind.Ct.App.2014). We now grant transfer, thereby vacating the opinion of the Court of Appeals.1 See Ind. Appellate Rule 58(A)(2). Additional facts are set forth below.


I. Ward Properly Preserved His State Constitutional Claim.

Before we can address Ward's Indiana constitutional claim, we must first address the State's threshold argument that Ward has waived this claim for appellate review—asserting that his “objections to the evidence were not based upon the Indiana Constitution, but rather upon the federal constitution.” Br. of Appellee at 12.

The State is, quite simply, mistaken—Ward expressly invoked both Constitutions in his objections. His hearsay objection to the Paramedic's testimony specifically cited both “Sixth Amendment” grounds and the “face to face” requirement under “Article 1, Section 13.” Tr. 200, 202. (Indeed, when the State retorted that the court had “already ruled on this” at a “preliminary hearing,” the trial court recognized exactly what Ward was doing: “He's wanting to preserve his objection for the record.” Tr. 201.) Likewise, when the State asked the Forensic Nurse what J.M. said about the cause of her injuries, Ward interjected, “I'm going to object to this as impermissible and testimonial hearsay under [the] Sixth Amendment, [and] Article 1, Section 13 of the Indiana Constitution.” Tr. 244–45. Ward clearly raised both state and federal constitutional grounds for his objection.

The State further relies on Davenport v. State, 734 N.E.2d 622 (Ind.Ct.App.2000),

50 N.E.3d 756

for the proposition that “[a]bsent a clear invocation of a violation of rights under the Indiana Constitution and cogent supporting argument, we will assume that defendant raises only a claim under the United States Constitution and will analyze that claim as we would a federal constitutional claim.” Br. of Appellee at 13 (quoting Davenport, 734 N.E.2d at 624 n. 2 ). But Davenport addresses the standard by which appellate counsel is measured, not trial counsel. See Ind.App. R. 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.”): see also Potter v. State, 684 N.E.2d 1127, 1136 n. 5 (Ind.1997) (referring to the lack of a separate argument under the Indiana Constitution in the appellant's brief).

By contrast, Indiana Evidence Rule 103(a) governs how to preserve a claim of error at trial:

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context.

Ind. Evidence Rule 103(a). As we have explained, that standard requires only “a contemporaneous objection ‘that is sufficiently specific to alert the trial judge fully of the legal issue.’ ” Raess v. Doescher, 883 N.E.2d 790,...

To continue reading

Request your trial
19 cases
  • Thompson v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 28 Febrero 2019
    ...and naming the perpetrator were non-testimonial because the primary purpose of the exam was for medical treatment. E.g. Ward v. State, 50 N.E.3d 752, 760-64 (Ind. 2016) ;5 United States v. Chaco, 801 F.Supp.2d 1200, 1213 (D.N.M. 2011) ; State v. Miller, 293 Kan. 535, 264 P.3d 461, 490 (2011......
  • Cardosi v. State
    • United States
    • Supreme Court of Indiana
    • 7 Agosto 2019
    ...to be testimonial than statements given to law enforcement officers." Id. at 2182.We most recently applied this test in Ward v. State , 50 N.E.3d 752 (Ind. 2016). There, a woman named her boyfriend as her batterer to a paramedic and a forensic nurse who were treating her injuries. Id. at 75......
  • Kidwell v. State, 15A04–1511–CR–1972.
    • United States
    • Court of Appeals of Indiana
    • 9 Diciembre 2016
    ...to let the trial judge make an informed decision and prevent the objecting party from switching theories on appeal." Ward v. State, 50 N.E.3d 752, 756 (Ind.2016). That the trial court was adequately informed of the issue is evidenced by its limiting instruction that the statement "is not to......
  • Bradley v. State
    • United States
    • Court of Appeals of Indiana
    • 29 Abril 2022
    ...right to a face-to-face meeting is, "[t]o a considerable degree, ... co-extensive" with the federal confrontation right. Ward v. State , 50 N.E.3d 752, 756 (Ind. 2016). But while the language of Indiana's provision has much the same meaning and history as that employed in the Sixth Amendmen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT