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
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
TORIANO ROBY, )
)
Appellant (Defendant Below), )
)
v. ) No. 71S00-0004-CR-274
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable J. Jerome Frese, Judge
Cause No. 71D02-9702-CF-00069
February 27, 2001
SHEPARD, Chief Justice.
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 Roby’s videotaped
statement to the police, the error was harmless, and we affirm his murder
conviction. We vacate the neglect conviction as a violation of Indiana’s
protection against double jeopardy.
Facts and Procedural History
On May 2, 1996, Roby’s girlfriend left him in sole charge of four
children, all under the age of four, when she went to work shortly before 5
p.m. At 5:06 p.m., the South Bend Fire Department received an emergency
assistance call and went to the house. A department captain found three-
year-old Shawn lying on the floor, with no vital signs.
Shawn was declared dead early the next morning. An autopsy showed
five scalp and skull contusions as well as blunt force wounds to Shawn’s
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.
Admission of the Videotape Transcript
Roby’s lawyer did not object when the trial court admitted into
evidence a transcript of his videotaped statement to the police, but did
object when the court published copies of the transcript to the jury. At
that time, the court admonished the jury:
Now, the real exhibit is going to be the videotape of the interview.
This also has an audio on it. This exhibit is simply an assistance to
you, each of you, while you are listening to the audiotape to assist
you in hearing and understanding what is being said.
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 defendant’s 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 defendant’s 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 Shawn’s death. (Appellant’s Br. at 15.)
We disagree. As in Small and Tobar, it is unlikely that admission of
the transcripts affected the verdict. The trial court’s 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 Roby’s 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.
Double Jeopardy and the Neglect Conviction
Roby next asserts that his conviction and sentencing for both murder
and class B felony neglect of a dependent violated his double jeopardy
rights under Indiana Constitution Article 1, Section 14. (Appellant’s Br.
at 8.) Under Richardson v. State, 717 N.E.2d 32, 49, 53 (Ind. 1999):
[T]wo or more offenses are the “same offense” in violation of Article
I, Section 14 of the Indiana Constitution, if, with respect to either
the statutory elements of the challenged crimes or the actual evidence
used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.
. . . .
. . . [T]he actual evidence presented at trial is examined to
determine whether each challenged offense was established by separate
and distinct facts. To show that two challenged offenses constitute
the “same offense” in a claim of double jeopardy, a defendant must
demonstrate a reasonable possibility that the evidentiary facts used
by the fact-finder to establish the essential elements of one offense
may also have been used to establish the essential elements of a
second challenged offense.
Roby’s 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 defendant’s neglect resulted in
serious bodily injury to the child. Id. at 1244-45.
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) (West 2000).
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 victim’s 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 defendant’s sole care.
(R. at 669.)
As we did in Mitchell, we conclude that the State used the same
evidence—that of Shawn’s freshly-inflicted injuries—to 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.
Conclusion
We affirm Roby’s murder conviction and vacate his conviction for
class B felony neglect of a dependent.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.