“There’s this sort of balance between putting the victim on trial, which is what our state laws have tried to preclude, but somehow it can turn justice upside down,” said Marc Seitles of Seitles & Litwin in Miami.
By Raychel Lean| February 12, 2020 at 04:39 PM
Florida’s Fourth District Court of Appeal granted a new trial for an Uber driver, who claims he had consensual sex with a passenger, despite allegations that he threatened to shoot her and forced his way into her home.
The case revolves around conflicting stories about one night in 2017, and a jumble of clashing evidence.
The victim, referred to as M.R. in the opinion, accused Uber driver Gary Timothy Kitchings of sexually assaulting her after collecting her from a SunFest concert. M.R. claimed Kitchings made remarks like, “I was watching you from the moment that you walked up to the car. I saw how beautiful and sexy you looked,” which she said she tried to ignore.
But things allegedly escalated when Kitchings allegedly forced M.R. to give him oral sex, telling her he’d use a gun under his seat if she didn’t. Kitchings then allegedly insisted on dropping M.R. off at her house, before forcing his way inside her home while she screamed for help.
Once inside, Kitchings allegedly threatened to kill M.R. and her dogs, before raping M.R. M.R. called 911 immediately after Kitchings left, and underwent a rape exam at Butterfly House, according to the opinion.
Jurors found Kitchings guilty of three counts of sexual battery, one count of burglary and one count of false imprisonment. He was sentenced to 22 years in prison.
But they didn’t hear a two-and-a-half-hour police interview in which Kitchings repeatedly denied assaulting M.R., and in which he offered to do a polygraph test. Defense counsel had sought to include the interview to defend an implied allegation that Kitchings’ trial testimony was fabricated, but Palm Beach Circuit Judge Krista Marx denied that request.
That was the wrong move, according to the Fourth DCA, which criticized prosecutorial techniques that the appellate panel said could have misled jurors, including using parts of Kitchings’ statement out of context, and implying without evidence that the defendant had taken erectile dysfunction drugs.
“Kitchings was entitled to have the jury consider his entire statement to the police, given before lawyers were involved, before witness statements were taken, before exhibits were collected, before scientific evidence was analyzed,” the opinion said. “Given the prosecutor’s often misleading cross-examination about inconsistencies and omissions, introduction of the entire statement would have placed these matters in a broader context so the jury could have fully evaluated the veracity of the trial testimony.”
The ruling also found the trial court shouldn’t have admitted a statement the victim made at Butterfly House, because only portions of it were relevant. This error was exacerbated, the ruling said, by the trial court’s failure to give instructions to jurors on how to consider the statement.
“Here, there was no limiting instruction. And the jury listened to the entire Butterfly House statement. Twice,” the opinion said. “Even had the trial court admitted Kitchings’ initial statement to the police, the admission of the Butterfly House statement was a separate error that would compel reversal.”
Attorney General Ashley Moody and Assistant Alexandra Folley in West Palm Beach represent the state. Their office did not respond to a request for comment by deadline.
They say the case has ruined Kitching’s life.
“When he was first brought in for questioning, he was shocked,” Litwin said. “At one point he said, ‘How can I prove to you that I’m innocent?’ If you watch the video it really showed a man who did not do this.”
The defense highlighted testimony from passengers who had shared part of their ride with M.R. The witnesses said M.R. had engaged in conversation with the driver. They also pointed to alleged inconsistencies in M.R.’s statements about how the attack unfolded, and to testimony from a neighbor who awoke to car doors slamming, but heard no barking or screaming.
M.R. never saw a gun, and police did not find one.
On the other hand, the neighbor described M.R. as hysterical the following morning. And police officers said the woman appeared distraught, and a friend said she wasn’t herself. A nurse also photographed a bruise and scratches on M.R.’s arm.
Seitles said the ruling offers insights about the importance of evidence in sexual assault cases.
“There’s this sort of balance between putting the victim on trial, which is what our state laws have tried to preclude, but somehow it can turn justice upside down,” Seitles said. “This is obviously a big, important time, given the allegations in the Harvey Weinstein case and the #MeToo movement, but it’s important that people view the evidence before they pass judgment, because the evidence matters. Clearly, three judges on the Fourth DCA saw the evidence, and were not persuaded.”
The appellate panel denied the defense’s attempt to introduce evidence that M.R. had made similar allegations in New York 11 months earlier in an alleged extortion scheme. But the panel found “significant differences” between the two cases, and a lack of direct evidence about what happened in New York.
Fourth DCA Judge Robert M. Gross wrote the opinion, with Judges Dorian K. Damoorgian and Mark W. Klingensmith concurring.