Damarco L. Churn v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Jun 05 2020, 9:20 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Ronald K. Smith Myriam Serrano
Muncie, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Damarco L. Churn, June 5, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2799
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable Marianne L.
Appellee-Plaintiff. Vorhees, Judge
Trial Court Cause No.
18C01-1905-F5-81
Mathias, Judge.
[1] Damarco Churn (“Churn”) was convicted in Delaware Circuit Court of Level 5
felony domestic battery resulting in bodily injury to a pregnant woman and
Level 5 felony strangulation. Churn appeals his convictions and raises two
issues, which we restate as:
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I. Whether his Sixth Amendment right to confrontation was
violated when medical providers were permitted to testify that
the victim identified Churn as her assailant; and,
II. Whether the trial court abused its discretion when it denied
his motions for mistrial.
[2] We affirm.
Facts and Procedural History
[3] On April 29, 2019, Churn brutally beat and strangled his pregnant girlfriend,
M.N.C. Churn and M.N.C. were involved in an argument that began on April
28, 2019, via text message. During the argument, Churn threatened to beat
M.N.C. until she and the baby were dead. Tr. p. 55. M.N.C. locked the doors
to her residence and told other residents to deny entry to Churn. When Churn
arrived at the residence on April 29, 2019, he yelled and kicked at the doors.
Another resident unlocked a door and allowed him to enter the home.
[4] M.N.C. dialed 911 and tried to hide in her bedroom. Churn found M.N.C. in
her bedroom and took her phone from her. When law enforcement arrived to
investigate the hang up 911 call, the other resident told the officer it was a
mistake and no one meant to call 911.
[5] Churn proceeded to beat M.N.C. on her chest, head and arms while she
attempted to protect her abdomen. Churn sprayed M.N.C. with pepper spray
and ripped her shirt off. M.N.C. was able to grab a new shirt and ran out of the
house. But she returned to the house to get her shoes and cell phone. Churn
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refused to return her cellphone to her. M.N.C. complained of burning from the
pepper spray, and Churn told her to take a shower, which she did. While she
was in the shower, Churn hit M.N.C., and she fell to the bottom of the bathtub.
Churn then stomped on her with his foot, striking her head and back. M.N.C.
eventually fled the house through the bathroom window.
[6] M.N.C. went to the emergency room later that day. Law enforcement officers
who investigated the assault observed that M.N.C.’s face was bruised, a fake
eyelash was missing, she had abrasions on her arms, legs, and back, and redness
around her neck. M.N.C. had difficulty swallowing. At the emergency room,
M.N.C. was examined by Physician Ryan Wallace and Forensic Nurse
Examiner Christi Wohlt.
[7] On May 1, 2019, Churn was charged with Level 5 felony domestic battery
resulting in bodily injury to a pregnant woman, Level 5 felony strangulation,
Level 6 felony domestic battery, and Class A misdemeanor interference with
reporting a crime. Prior to trial, the trial court granted the State’s motion to
dismiss the Level 6 felony battery and Class A misdemeanor charges.
[8] At the jury trial held on October 7 and 8, 2019, M.N.C. testified that she and
Churn were still involved in a romantic relationship. She stated she
remembered going to the emergency room on April 29, 2019, but could not
remember the assault. Tr. p. 139. Therefore, evidence concerning the assault
and M.N.C.’s resulting injuries was introduced through the testimony of law
enforcement officers, the examining nurse and physician, and M.N.C.’s
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grandmother. Churn objected to the nurse’s and doctor’s testimony on the
grounds that allowing them to testify to M.N.C.’s statement that Churn
assaulted her violated his right of confrontation under the Sixth Amendment.
[9] Christi Wohlt gave extensive testimony concerning M.N.C.’s description of the
assault and her resulting injuries. Wohlt, a registered nurse and forensic nurse
examiner at Ball Memorial Hospital, examined M.N.C. when she arrived in the
emergency room on April 29, 2019, at approximately 7:30 p.m. During the
examination, M.N.C. was tearful and upset. Wohlt noted that M.N.C. was
approximately three months pregnant. During the examination, Wohlt
observed marks on M.N.C.’s throat and asked her if she had been strangled.
M.N.C. said Churn strangled her twice. As required by her training, Wohlt
completed a “body map” documenting M.N.C.’s physical injuries. Tr. pp. 61–
62. Wohlt also took ninety-two photographs of M.N.C.’s injuries, which were
admitted at trial. Ex. Vol. 1, State’s Ex. 16-111. Both Wohlt and Dr. Wallace
testified that M.N.C. stated that her boyfriend assaulted her. Tr. pp. 54, 114.
[10] Churn also requested a mistrial on two occasions during trial. In the first
instance, the State elicited testimony from Muncie Police Department Officer
Ryan Plummer concerning a 911 hang up call. Officer Plummer testified that he
responded to a 911 hang up call and spoke to a female, not M.N.C., who
answered the door at the address the call originated from. The State then asked,
“[d]o you have personal knowledge if Damarco Churn ever lived at this
address?” Tr. p. 34. Officer Plummer responded, “[w]e had calls previous there
involving him, yes.” Id. Churn requested a mistrial because the State placed
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evidence before the jury that Churn “may have had” contacts “with the law in
the past.” Id. at 35. Churn also argued that an admonition to the jury to
disregard Plummer’s testimony would not be sufficient. The trial court denied
the motion for mistrial and gave the following admonishment to the jury:
I’m advising you, and admonishing you as the jury, that this
witness does not have any personal knowledge about where
Damarco Churn was living. So I’m asking you to disregard that.
Any information he has is hearsay. I’m also admonishing you
and directing you to disregard any testimony that may have been
given about police calls to this address, or concerning the
Defendant.
Tr. pp. 37–38.
[11] The State also presented the testimony of Darla Carter, M.N.C.’s grandmother.
Carter was asked if M.N.C. and Churn were “still in a relationship.” Tr. p. 124.
Carter replied, “[h]e’s currently incarcerated.” Id. Churn immediately moved
for a mistrial. The State argued that because it was planning to admit evidence
of a jailhouse phone call between Churn and M.N.C. from the night before, the
jury would be presented with additional evidence that Churn was incarcerated,
rendering Carter’s response harmless. The trial court concluded that an
admonishment would cure the error and stated to the jury:
I’m advising and admonishing the jury to disregard the witness’s
comment about incarceration. Whether the Defendant is or is not
incarcerated[] does not have any impact on whether the
Defendant is guilty or not guilty in this case. You are not to
consider [] whether the Defendant is or is not incarcerated. You
don’t have any information or you won’t get any information
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about why he’s incarcerated, how long he’s been incarcerated, if
he is incarcerated, that type of thing. So you will have to
disregard.
Tr. pp. 128–29.
[12] Carter further testified that she went to the emergency room when she learned
that M.N.C. was there on April 29, 2019. Carter also described M.N.C.’s
injuries to the jury.
[13] M.N.C. testified that she and Churn had a “video visit on a jail phone call”
after the first day of trial. Tr. p. 144. The call was made on Churn’s cellmate’s
account. Tr. pp. 146, 163. Churn told M.N.C. to testify that he did not assault
her on April 29, 2019. Tr. p. 145. M.N.C. testified that she did not remember
seeing Churn on April 29, 2019. Tr. p. 150. The trial court also admitted
M.N.C.’s statement to the police identifying Churn as her assailant over
Churn’s objection. Tr. pp. 148–49; Ex. Vol. 1, State’s Ex. 113.
[14] The jury found Churn guilty of Level 5 felony domestic battery and Level 5
felony strangulation. A sentencing hearing was held on November 25, 2019.
The trial court noted twenty-year-old Churn’s four prior felony convictions and
that he was on supervised probation when he committed the offenses in this
case. The court also noted that he attempted to manipulate M.N.C.’s testimony
and minimized her injuries, demonstrating a lack of remorse. The trial court
ordered Churn to serve concurrent terms of five years executed in the
Department of Correction for both convictions. Churn now appeals.
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I. Right of Confrontation
[15] Churn argues that allowing Wohlt and Dr. Wallace to testify that M.N.C. told
them that Churn attacked her violated his right to confrontation under the Sixth
Amendment of the United States Constitution and Article I, Section 13 of the
Indiana Constitution. A trial court generally has broad discretion in ruling on
the admissibility of evidence, and we disturb a trial court’s evidentiary rulings
only upon an abuse of discretion. Speers v. State, 999 N.E.2d 850, 852 (Ind.
2013). However, when a defendant contends that a constitutional violation has
resulted from the admission of evidence, the standard of review is de novo. Id.[16] The Sixth Amendment's Confrontation Clause provides, in relevant part, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him[.]” U.S. Const. amend. VI. In Crawford v.
Washington, 541 U.S. 36 (2004), “the [U.S.] Supreme Court held that the
Confrontation Clause . . . prohibits admission in a criminal trial of testimonial
statements by a person who is absent from trial, unless the person is unavailable
and the defendant had a prior opportunity to cross-examine the person.” Fowler
v. State, 829 N.E.2d 459, 464 (Ind. 2005), abrogated in part on other grounds by
Giles v. California, 554 U.S. 353 (2008).
[17] However, “when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of [the declarant’s]
prior testimonial statements. . . . The Clause does not bar admission of a
statement so long as the declarant is present at trial to defend or explain it.”
Crawford, 541 U.S. at 59 n.9. And our Supreme Court has clarified that claimed
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losses of memory at trial have no effect on availability for purposes of the
Confrontation Clause:
Although some courts and commentators contended that a
witness who asserts an inability to recall any significant
information is for all practical purposes unavailable for
confrontation, this issue was settled in United States v. Owens, 484
U.S. 554, 558, 108 S. Ct. 838, 98 L.E.2d 951 (1988). In Owens,
the Supreme Court . . . held that as long as the declarant testifies
the Confrontation Clause has been satisfied even if the declarant
is unable to recall the events in question. Id. at 558, 108 S. Ct.
838. . . . The feigned or real absence of memory is itself a factor
for the trier of fact to establish, but does not render the witness
unavailable. Rather, as Owens explained, it is a factor for the trier
of fact to consider in evaluating the witness’s current and earlier
versions. Id. at 559, 108 S. Ct. 838. . . . We conclude that a
witness who is present and responds willingly to questions is
“available for cross-examination” as that term is used in Crawford
in discussing the Confrontation Clause, just as Owens observed
that such a witness is “subject to cross-examination” under the
common understanding of that phrase. We believe no
significance attaches to these slightly different verbal
formulations.
Fowler, 829 N.E.2d at 466 (internal footnote omitted).
[18] Here, M.N.C. testified at trial. Although she testified that she could not recall
who assaulted her on April 29, 2019, she was “available” for cross-
examination. This is sufficient for the purposes of the Confrontation Clause. See
id. “The Confrontation Clause . . . generates “only ‘an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and
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to what ever extent, the defense might wish.’” Id. at 469 (quoting Owens, 484
U.S. at 559).
[19] For these same reasons, we conclude that Churn’s right to confrontation under
Article 1, Section 13 of the Indiana Constitution was not violated. Churn was
able to “meet the witnesses face to face” as required by our constitution when
he cross-examined M.N.C. at trial. See Hill v. State, 137 N.E.3d 926 (Ind. Ct.
App. 2019) (citing State v. Owings, 622 N.E.2d 948, 950–51 (Ind. 1993)), trans.
denied.
[20] Finally, although Churn focuses on the admission of M.N.C.’s statements, we
also observe that Dr. Wallace and Wohlt testified under oath and were subject
to cross-examination concerning their testimony that M.N.C. identified Churn
as her assailant. And M.N.C.’s statements to medical providers were non-
testimonial for the purposes of the Confrontation Clause. See Ward v. State, 50
N.E.3d 752, 764 (Ind. 2016) (concluding that “identifying a domestic-violence
victim’s attacker is integral to the medical standard of care for” domestic
violence cases).
[21] In Ward, our supreme court observed that “a forensic nurse's primary function
is providing medical treatment, not gathering evidence. Medical scholarship
confirms that identifying attackers is integral to the standard of care for ‘medical
treatment’ of domestic abuse victims.” Id. at 761.
Specifically, experts urge doctors and nurses to acknowledge the
violence, assess patient safety, refer the victim for additional
treatment or services, and document the injuries and the abuser.
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Indeed, a “forensic nurse is a nurse who provides specialized care
for patients who are victims and/or perpetrators of trauma (both
intentional and unintentional). Forensic nurses are nurses first
and foremost,” even though they are also specially trained in
injury identification, evaluation, and documentation.
Id. at 761–62 (footnote and citations omitted).
[22] “[P]atient safety is a “critical” part of the comprehensive standard of care for
treating victims of domestic violence.” Id. at 763. Treating nurses and doctors
must assess the patient’s condition to determine what resources the patient
needs to be safe. Id.
The standard of care for “medical treatment” of domestic abuse
goes beyond physical injuries, and even beyond immediate
outcomes like who takes a victim home or what medications a
patient receives. Rather, it requires nurses and physicians to rely
on information obtained from patients to triage their injuries—
both mental and physical—and implement comprehensive
treatment plans. Doctors and nurses need to know the identity of
the perpetrator when treating a victim of domestic violence.
Id. (citation omitted).
[23] This is even more compelling in this case given M.N.C.’s pregnancy. Wohlt
was concerned with M.N.C.’s health and safety and of that of her unborn child.
For all of these reasons, M.N.C.’s statements to both Wohlt and Dr. Wallace
identifying Churn as her assailant were not testimonial and were properly
admitted into evidence.
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II. Mistrial
[24] Churn argues that the trial court abused its discretion when it denied the two
motions for mistrial he made during his jury trial. The denial of a motion for
mistrial rests within the trial court’s sound discretion, and we review that
decision only for an abuse of discretion. Brittain v. State, 68 N.E.3d 611, 619
(Ind. Ct. App. 2017), trans. denied. The trial court is entitled to great deference
on appeal because the trial court is in the best position to evaluate the relevant
circumstances of a given event and its probable impact on the jury. Id. at 620.
To prevail on appeal from the denial of a motion for mistrial, a defendant must
demonstrate that the statement in question was so prejudicial that he was
placed in a position of grave peril. Id. The gravity of peril is measured by the
probable persuasive effect of the statement on the jury. Smith v. State, 140
N.E.3d 363, 373 (Ind. Ct. App. 2020), trans. denied. Granting a mistrial “is an
extreme remedy that is warranted only when no other action can be expected to
remedy the situation.” Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App. 2015),
trans. denied.
[25] Churn requested two mistrials during his jury trial. The first occurred during the
State’s direct examination of Officer Plummer concerning the hang up 911 call.
The State asked the officer, “[d]o you have personal knowledge if Damarco
Churn ever lived at this address?” Tr. p. 34. Officer Plummer responded, “[w]e
had calls previous there involving him, yes.” Id. The second request for a
mistrial occurred when M.N.C.’s grandmother testified that Churn was
“currently incarcerated.” Tr. p. 124. In response to Churn’s motions for
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mistrial, the trial court admonished the jury to disregard the challenged
testimony. Tr. pp. 37–38; 128–29.
[26] “Generally, a timely and accurate admonition is an adequate curative measure
for any prejudice that results.” Orta v. State, 940 N.E.2d 370, 374 (Ind. Ct. App.
2011), trans. denied. And “[w]hen the jury is properly instructed, we will
presume they followed such instructions.” Duncanson v. State, 509 N.E.2d 182,
186 (Ind. 1987). “We seldom find reversible error when the trial court
admonishes the jury to disregard the statement made during the proceedings.”
Davidson v. State, 580 N.E.2d 238, 241 (Ind. 1991).
[27] Churn argues that Officer Plummer’s statement constitutes an evidentiary
harpoon that placed him in a position of grave peril. An evidentiary harpoon
refers to placing inadmissible evidence before the jury with the deliberate
purpose of prejudicing the jurors against the defendant. Kirby v. State, 774
N.E.2d 523, 535 (Ind. Ct. App. 2002), declined to follow on other grounds by Austin
v. State, 997 N.E.2d 1027 (Ind. 2013), trans. denied. The injection of an
evidentiary harpoon may constitute prosecutorial misconduct requiring a
mistrial. Roberts v. State, 712 N.E.2d 23, 34 (Ind. Ct. App. 1999), trans. denied.
To prevail on such a claim, the defendant must show that the prosecution acted
deliberately to prejudice the jury and that the evidence was inadmissible. Id. A
defendant need not prove that he would have been acquitted but for the
harpooning. Jewell v. State, 672 N.E.2d 417, 424 (Ind. Ct. App. 1996), trans.
denied. However, when the jury’s determination is supported by independent
evidence of guilt and it was likely that the evidentiary harpoon did not play a
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part in the defendant’s conviction, the error is harmless. Perez v. State, 728
N.E.2d 234, 237 (Ind. Ct. App. 2000), trans. denied.
[28] Assuming for the sake of argument that the State intended to elicit Officer
Plummer’s testimony, the officer’s testimony did not inform the jury of any
specific incident or prior offense involving Churn. From the officer’s testimony,
the jury could only infer that Churn had some sort of contact with law
enforcement in the past. We cannot conclude that the officer’s testimony placed
Churn in a position of grave peril or influenced the jury’s decision to convict
him, especially in light of the trial court’s thorough admonishment and the
other evidence proving that he assaulted M.N.C. And Churn has not offered
any specific argument as to why the trial court’s admonition was inadequate to
cure any potential prejudice.
[29] Churn also cannot establish that he was entitled to a mistrial on the basis of
Carter’s testimony that he was currently incarcerated. Tr. p. 124. The jury was
admonished to disregard her testimony. Also, after Carter’s testimony, the State
introduced evidence of a jailhouse video call that Churn made to M.N.C. after
the first day of trial. Churn is wearing his jail uniform in the video. Therefore,
Carter’s testimony was cumulative of other evidence and did not place Churn in
a position of grave peril. Moreover, the trial court appropriately admonished
the jury that “the fact that the Defendant is incarcerated during this phone call
is not to be used by you as any evidence of guilt.” Tr. p. 164.
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[30] For all of these reasons, we conclude that the trial court did not abuse its
discretion when it denied Churn’s motions for mistrial.
Conclusion
[31] Churn has not established any error, much less reversible error, in the trial
court’s evidentiary rulings, or in its denial of his motions for mistrial. We
therefore affirm his Level 5 felony domestic battery and strangulation
convictions.
[32] Affirmed.
Riley, J., concurs.
Tavitas, J., concurs with a separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Damarco L. Churn, Court of Appeals Case No.
19A-CR-2799
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Tavitas, Judge, concurring.
[33] I respectfully concur. I write separately to emphasize my belief that resolution
of Issue I, supra, hinges on whether the statements are testimonial as analyzed
by our Supreme Court in Ward v. State, 50 N.E.3d 752 (Ind. 2016). This
analysis yields the same conclusion reached by the majority.
[34] In analyzing whether the Sixth Amendment’s Confrontation Clause protections
were violated, the Ward Court invoked the primary purpose test pursuant to
Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173 (2015), to determine if the
statements made were testimonial. The primary purpose test asks: “whether, in
light of all the circumstances, viewed objectively, the primary purpose of the
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conversation was to create an out-of-court substitute for trial testimony.” Ward,
50 N.E.3d at 759 (quotations omitted). Ward also noted that, “under the
primary purpose test, statements to nurses, doctors, and other non-law
enforcement officers are much less likely to be testimonial than statements to
law enforcement officers,” and the inquiry is “highly fact-sensitive.” Id.
(quotations omitted). Our Supreme Court also observed, especially in cases of
“child abuse, sexual assault, and/or domestic violence,” identifying an attacker
“serves a primarily medical purpose” in order to properly treat the patient. Id. at
759 (emphasis supplied and quotations omitted).
[35] Like the Supreme Court in Ward, I would resolve this issue by concluding that
the statements to Dr. Wallace (a physician) and Wohlt (a forensic nurse
examiner) identifying Churn are “non-testimonial, not barred by the
Confrontation Clause, and properly admitted under Evidence Rule 803(4).” See
Ind. Evid. R. 803(4) (including an exception to statements excluded by the rule
against hearsay as “Statement Made for Medical Diagnosis or Treatment”); see
also 13 Ind. Prac., Indiana Evidence § 803.104 (4th ed.) (“Statements made to
non-physicians fall within Rule 803(4) if made to promote diagnosis or
treatment.”) (footnotes omitted).
[36] In analyzing Article 1, Section 13 of the Indiana Constitution, the Ward Court
noted the requirement that the defendant have the right to meet “witnesses face
to face.” Ward, 50 N.E.3d at 756 (emphasis added). Thus, the question is
whether the defendant had the opportunity to confront the witness—not
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necessarily the declarant—face to face. Churn had the opportunity to cross-
examine Dr. Wallace and Wohlt at the trial.
[37] Accordingly, I resolve this issue by finding first that the statements at issue here
are non-testimonial. I use the template created by our Supreme Court in Ward
to reach the same conclusion as the majority. As such, I concur.
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