ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Karen M. Freeman-Wilson
South Bend, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
SUPREME COURT OF INDIANA
TORIANO ROBY, ) ) Appellant (Defendant Below ), ) ) v. ) No. 71S00-0004-CR-274 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
February 27, 2001
Appellant Toriano Roby battered three-year-old Shawn Poindexter to death. A jury found him guilty of murder, reckless homicide, aggravated battery, and class B felony neglect of a dependent. Although the trial court improperly admitted into evidence a transcript of Robys videotaped statement to the police, the error was harmless, and we affirm his murder conviction. We vacate the neglect conviction as a violation of Indianas protection against double jeopardy.
Shawn was declared dead early the next morning. An autopsy showed five
scalp and skull contusions as well as blunt force wounds to Shawns abdomen.
A pathologist testified that the recently-inflicted injuries were inconsistent with accidental trauma,
and were probably the result of blunt force applied by a human being.
He also expressed extreme doubt that the injuries could have been inflicted
by another very young child or during attempts to revive Shawn.
A jury found Roby guilty on all counts charged. The trial court
set aside the reckless homicide and aggravated battery verdicts as lesser included offenses
of murder. It entered judgments of conviction for murder and class B
felony neglect of a dependent, sentencing Roby to consecutive terms of sixty-five years
and eighteen years.
Again, I have to remind you that somebody else sat down and played
it and took down and created a transcript that you have in your
hand. It may be very accurate. There may be mistakes in
it, not just typos but wrong words or something.
If you think you hear something different, you are to go by what
you think you hear, not by what is printed by somebody else.
(R. at 556.)
We recently addressed a very similar claim in Tobar v. State, 740 N.E.2d
106 (Ind. 2000). In Tobar, the trial judge allowed jurors to refer
to transcripts when viewing the defendants videotaped statements, after a similar admonition.
Tobar, 740 N.E.2d at 107. We concluded that the admission of
the transcripts was error, but harmless. Id. at 108-09.
In Bryan v. State, 450 N.E.2d 53 (Ind. 1983), this Court outlined the
appropriate standard for the use of transcripts of taped statements at trial.
Transcripts are usually needed only when portions of a tape are inaudible or
speakers are difficult to identify, and they should not ordinarily be admitted into
evidence unless both sides stipulate to their accuracy and agree to their use
as evidence. Bryan, 450 N.E.2d at 59 (quoting United States v. McMillan,
508 F.2d 101 (8th Cir. 1974)).
In Small v. State, 736 N.E.2d 742, 748-49 (Ind. 2000), the defendant did
not explicitly agree to the admission of a transcript that the jurors read
as they viewed the defendants videotaped statement to police. There, as here,
defense counsel objected only on grounds that the transcript was cumulative, not that
it was inaccurate or otherwise improperly admitted. Id., (R. at 555).
Nonetheless, we concluded that the admission was error, noting that the transcript was
not used solely as an aid in interpreting inaudible portions of the recording.
Id. Similarly, here, the State does not contend that the transcript
was necessary to clarify indistinct dialogue on the videotape. The trial court
therefore erred in admitting the transcript and publishing it to the jury.
The trial court thus erred, but as in Small and Tobar the transcript
was merely cumulative, and its admission does not require reversal. See Small,
736 N.E.2d at 749; Tobar, 740 N.E.2d at 108-09. Roby argues that
the duplicative evidence of the videotape and transcript unduly emphasized his statement, particularly
in light of the fact that no direct evidence linked him to Shawns
death. (Appellants Br. at 15.)
We disagree. As in Small and Tobar, it is unlikely that admission
of the transcripts affected the verdict. The trial courts admonition made clear
to the jurors that they were only to use the transcript as a
supplement, and to rely on the videotape as the real evidence.
Moreover, it is hard to see how any undue emphasis would have prejudiced
Robys cause. In the taped statement, Roby claimed that Shawn fell while
playing, and persistently denied having struck or killed the child. (R. at
830-31, 837-38, 839, 843, 846-47.) The prosecutor rebutted this version of events
with uncontroverted medical evidence that Shawn suffered fatal blows at a time when
Roby was the only adult present.
The circumstantial evidence against Roby was so damaging that supplementing the videotape with
the transcript could not have affected his substantial rights and was harmless.
Robys claim is like the one we recently addressed in Mitchell v. State,
726 N.E.2d 1228 (Ind. 2000). Mitchell struck and killed her granddaughter.
Id. at 1232, 1244. We concluded, applying the Richardson double jeopardy analysis,
that there was a reasonable possibility that the jury looked to the same
evidentiary facts in finding that the defendant knowingly killed the child, and that
the defendants neglect resulted in serious bodily injury to the child. Id.
The same is true here. Class B felony neglect of a dependent
requires proof that the neglect resulted in serious bodily injury. Ind. Code
Ann. § 35-46-1-4(b)(2) (West 2000). Murder, as charged here, requires proof that
the defendant knowingly killed another human being. Ind. Code Ann. § 35-42-1-1(1)
In Richardson, we noted that jury instructions and presentations of counsel to the
jury can be helpful to the reviewing court in its analysis of the
actual evidence to determine whether a jury used the same evidence to establish
multiple offenses. Richardson, 717 N.E.2d at 54 n.48. In preliminary and
final jury instructions, here as in Mitchell, the neglect charge alleged that the
serious bodily injury was the victims death. Mitchell, 726 N.E.2d at 1244,
(R. at 203, 709.) The murder charge in both cases alleged that
the defendant struck blows that caused the victim to die. Mitchell, 726
N.E.2d at 1244, (R. at 204, 710.) In closing argument here, the
prosecutor said he would not even bother talking about proof of the elements
of the counts other than murder, focusing instead on the non-accidental injuries that
Shawn incurred while in the defendants sole care. (R. at 669.)
As we did in Mitchell, we conclude that the State used the same
evidencethat of Shawns freshly-inflicted injuriesto establish both the serious bodily injury required for
class B felony neglect and the knowing killing required for murder. Conviction
on both counts therefore constitutes double jeopardy under the Richardson test.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.