RYAN E. BEAN, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
APPEAL FROM THE WHITE SUPERIOR COURT. The Honorable Robert B. Mrzlack, Judge. Cause No. 91D01-1012-FA-157.
ATTORNEY FOR APPELLANT: STEVEN KNECHT, Vonerheide & Knecht, P.C., Lafayette, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ERIC P. BABBS, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, Chief Judge. NAJAM, J., and BROWN, J. concur.
VAIDIK, Chief Judge
After this Court reversed Ryan E. Bean's Class A felony child-molesting conviction, Bean was retried and convicted a second time. He received a thirty-year sentence. On appeal, Bean argues that fundamental error occurred at his retrial. Bean's retrial, which turned on the uncorroborated testimony of the alleged child victim, was tainted by vouching testimony and troubling prosecutorial misconduct, making a fair trial impossible. We therefore reverse.
Facts and Procedural History
In 2001, Bean's ex-wife, Stacey Bean, gave birth to their daughter, H.B. Stacey and Bean separated in 2008. In 2010, Stacey moved in with her new boyfriend, Zachary Roark.
In August 2010, Stacey and Zachary noticed H.B. masturbating in the presence of other family members. After talking to H.B., Stacey called authorities. Darrel Noonkester, a regional investigator with the Indiana Department of Child Services, interviewed H.B. H.B. was also examined at Riley Hospital for Children in Indianapolis.
Bean was interviewed by authorities, including White County Sheriff Patrick Shafer. After being advised of his Miranda rights, Bean unequivocally invoked his right to counsel. The police did not honor his request. Although Bean repeatedly denied molesting H.B., he later confessed after hours of questioning.
At his trial for molesting H.B., Bean filed a motion to suppress his confession to police, but his motion was denied. Bean was ultimately convicted of Class A felony child molesting. His conviction was reversed by this Court a year later, due to the violation of his Miranda rights. Bean v. State, 973 N.E.2d 35, 45 (Ind.Ct.App. 2012) (" Bean's confession was obtained in violation of Miranda protocol and should not have been admitted into evidence . . . ." ), trans denied . Bean was retried in 2013.
Before the retrial began, defense counsel sought a motion in limine with respect to vouching testimony, seeking to prohibit " Noonkester, particularly, from  saying things like 'I believe her,' or 'she's credible.'" Tr. p. 11. The trial court granted counsel's request. Id. at 13.
Stacey was the first witness to testify at Bean's retrial. When asked why she
called authorities after speaking to H.B., Stacey replied that " we believed that . . . after we talked to [H.B.], that her father, Ryan Bean, had molested her." Id. at 46. Later, when asked if she believed that Bean " had done something" to H.B., Stacey said yes. Id. at 47. The State also called Dr. Roberta Hibbard, a pediatric doctor at Riley Hospital for Children, to testify about her physical examination of H.B. Dr. Hibbard explained that H.B.'s exam was normal, and neither proved nor disproved that H.B. had experienced sexual contact. Id. at 60-61.
H.B., eleven years old at the time of Bean's retrial, also testified. H.B. described being molested by her father when she was five or six years old, saying that he tried many times to put his penis in her vagina. Id. at 76-77, 81. H.B. also testified that she watched pornography with Bean and Bean made her put her mouth on his penis, which made her vomit. Id. at 79-80. Bean would also kiss H.B. and put his tongue in her mouth. Id. at 81-82. According to H.B., Bean did these things when her mother Stacey was not home, and Bean made H.B. promise not to tell anyone what happened. Id. at 78-80-83.
Noonkester, a regional DCS investigator, testified next. Noonkester spoke at length about the investigatory process, describing how he substantiates allegations of child molestation:
After all of the pieces of the puzzle come together, then a conclusion is drawn. I draw a conclusion [as] to my belief, did it happen, did it not happen, whatever the allegation may be . After I've made that decision, it is reviewed by my supervisor or my director in Carroll County. That director either agrees or disagrees with my finding. Once the conclusion is set in stone, it is agreed upon by myself and the director, its reviewed in Carroll County by what is called a child[-]protection team. Once a child[-]protection team comes together,  the case and the investigation is presented to that governing body. And a child[-]protection team is set up and legislated by statute or Indiana law, who needs to be present or who needs to be on this board. That team then will either agree or disagree with the findings, and if they agree, generally the next steps of safety are put into place, referral to a prosecutor. If they disagree, they may not suggest that certain other evidentiary steps take place, at which time we follow their direction.
Id. at 117 (emphasis added). Noonkester explained that after interviewing H.B., he " drew the conclusion to substantiate the allegation, and it was upheld by our director and agreed with by the child[-]protection team." Id. at 125. He also stated that H.B. was referred to Riley Hospital for Children and to another facility for counseling. Id.
Noonkester also described looking for signs that a child has been coached. The prosecutor asked Noonkester if he " observ[ed] any signs of inaccuracy or coaching" during his interview with H.B. Id. at 122. Defense counsel objected, citing Indiana Evidence Rule 404(b). Id. at 122-23. The trial court overruled the objection, and Noonkester said he did not.
Id. at 123. The prosecutor then asked Noonkester if H.B. " was based in reality or fantasy," and Noonkester responded that she was " based in reality." Id. Noonkester also stated that he did not believe H.B. was fantasizing or exaggerating. Id. at 124.
Sheriff Shafer--who interviewed Bean before his 2010 trial--was the final witness to testify. Before he took the stand and outside the jury's presence, defense counsel sought a limiting instruction:
The court's well aware that the interview [was] suppressed [by the] Court of Appeals. I think it's improper for the State to bring up any mention of an interview. That's the very object that caused this retrial [sic] that we're doing this case for the second time. It would be our contention that the court should limit the testimony of any officer involved in this investigation and probably should be instructed not to talk about an interview taking place with [Bean]. We're going to get into something that cannot be brought up. I understand that if I were to cross-examine the officer and talk about an interview, that I think that opens up the door to potentially letting that evidence in. Likewise, the State should be precluded from mentioning an interview due to the fact that it's already been deemed illegal and suppressed by the Court of Appeals . . . .
Id. at 104-05. The prosecutor disagreed, arguing that Sheriff Shafer should be able to testify that he interviewed Bean because " the jury has a right to understand the process of an investigatory process." Id. at 105. The judge disagreed, probing further:
THE COURT: How is that relevant?
PROSECUTOR: The fact that he was interviewed?
THE COURT: Uh-huh.
PROSECUTOR: Why is it relevant that he was investigated to begin with? That's why we're here.
THE COURT: I appreciate that. I think it's relevant to indicate that yes, the police were called, they did certain things, but if they did something that was illegal, how is that relevant to the jury?
PROSECUTOR: But they didn't do anything that was illegal. To interview [Bean] was not illegal.
THE COURT: He invoked his right against self-incrimination, and they chose to continue ...