By MARC FREEMAN
A South Florida Uber driver convicted of raping a passenger nearly three years ago deserves a new trial, a state appeals court ruled Wednesday.
The decision for Gary Kitchings also wiped out a 22-year prison sentence in a case where prosecutors had accused him of “trolling for women every night while he was at work.”
But Kitchings, 60, did not receive a fair trial because the jury never heard his full statement to detectives after his arrest, when he insisted it was a consensual hook-up with his accuser, the Fourth District Court of Appeal found.
Kitchings’ defense wanted that statement to be admitted as evidence, to rebut a charge from a prosecutor that he changed his story when he took the witness stand. Palm Beach County Chief Circuit Judge Krista Marx, who presided over the trial, refused to allow it.
“Once the State implied that Kitchings’ trial testimony was fabricated, the defense should have been permitted to show that Kitchings had provided an earlier, consistent statement to the police,” Judge Robert M. Gross wrote for the appeals court, joined by Judges Dorian K. Damoorgian and Mark W. Klingensmith.
Gross added that Marx “abused her discretion by refusing to allow the admission of Kitchings’ statement to the police.”
The 20-page opinion also says Kitchings’ conviction and sentence must be tossed because Marx mistakenly allowed the jury to listen to the 38-year-old woman’s entire recorded statement to investigators at a hospital.
Both the accuser, who lives in New York City, and Kitchings testified during a 2018 trial, offering entirely different accounts of their encounter.
Prosecutors argued the former part-time driver for the ride-sharing service terrorized the passenger he had picked up May 7, 2017, following SunFest, the West Palm Beach arts and music festival.
They accused Kitchings of locking the doors to his Nissan Versa and forcing the woman to perform sex acts in the car, before breaking into her Jupiter home and raping her.
She told the jury that Kitchings was a “monster” who threatened to shoot her unless she performed a sex act and then busted through her front door.