Roby v. StateRoby v. State
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Aрpellant 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
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 сaptain 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 deрendent, 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 tо 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 assistаnce 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 mаy 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 triаl 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 ordinаrily 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. Thеre, as here, defense counsel objected only on grounds that the transcript was cumulative, not that it was inaccurate or otherwise imprоperly 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
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 tо 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 tо see how any undue emphasis would have prejudiced Roby’s cause. In the taped statement, Roby claimed that Shawn fell while playing, and persistеntly 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 uncontro-verted 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 felоny 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 offеnses 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 сonvict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.
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... [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 defеndant must demonstrate a reasonable possibility that the eviden-tiary 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, thаt 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.
In
Richardson,
we noted that “jury’ instructions and presentаtions of counsel to the jury can be helpful to the reviewing court in its analysis of the actual evidence
As we did in Mitchell, we conclude that the State used the same evidence — that of Shawn’s freshly-infliсted 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.