GARY TIMOTHY KITCHINGS v. STATE OF FLORIDA ( 2020 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GARY TIMOTHY KITCHINGS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1929
[February 12, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 50-2017-CF-004538-A.
Ashley Litwin and Marc David Seitles of Seitles & Litwin, P.A., Miami,
for appellant.
Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley,
Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Gary Kitchings appeals his conviction and sentence for three counts of
sexual battery, one count of burglary, and one count of false
imprisonment.
On the night of the criminal incidents, Kitchings was a 57-year-old Uber
driver with no prior exposure to the justice system other than speeding
tickets. His accuser, M.R., was a mid-thirties woman who entered
Kitchings’ car as an Uber passenger. The incidents forming the basis of
the criminal charges occurred in Kitchings’ car and in M.R.’s
condominium. Kitchings’ defense at trial was that his sexual contact with
M.R. was consensual.
We reverse, for two reasons. First, the trial court improperly refused to
allow the defense to introduce Kitchings’ initial statement to the police to
rebut an implied charge of recent fabrication. Second, the court
improperly admitted the entirety of one of M.R.’s previous statements into
evidence.
Trial Testimony—The State’s Case
M.R.’s testimony
M.R. splits her time between Florida and New York. After attending a
Sunfest concert, she went for drinks with friends before booking an Uber
pool to take her home. She took a screenshot of the car when she booked
it, as was her usual practice.
When Kitchings pulled up, no one else was in the car, so M.R. sat in
the back. A few minutes later, they picked up two more passengers, so
she moved to the front seat. The other passengers were in the car for
about 15 minutes before they were dropped off.
M.R. testified that as soon as they got on I-95, Kitchings started hitting
on her, saying things like, “I was watching you from the moment that you
walked up to the car. I saw how beautiful and sexy you looked. You must
have gotten hit on by so many guys at Sunfest.” She did not like the way
the conversation was going, so she tried to ignore him by looking at
pictures on her phone.
During the drive, Kitchings tried to touch M.R. between her legs,
ripping her pantyhose in the process, but M.R. pulled his hand away. He
then grabbed her left hand and put it on his pants, but she pulled her
hand away. Kitchings unzipped his pants and pulled them down. He took
M.R.’s hand and put it on his now-exposed penis. M.R. unbuckled her
seat belt and pulled the door handle to try and jump out of the car, but
the door was locked. Kitchings told her that he had a gun under the seat
and threatened to shoot her if she did not do what he said. M.R. never
saw a gun that evening, but she believed there was a chance that he had
a gun under his seat.
Kitchings told M.R. to refasten her seat belt. He said he wanted her to
“suck [him].” He then pushed M.R.’s head down on top of his penis while
she pleaded, “Please, no, I don’t really want to do this.” After more
protests, she performed oral sex on Kitchings. He told M.R. that he was
going to urinate in her mouth and that he wanted her to swallow it, which
she did. When M.R. tried to lift her head back up, Kitchings pushed it
back down and stated that he was going to ejaculate in her mouth and he
wanted her to swallow it, which she did.
When they arrived at her neighborhood, M.R. told Kitchings to let her
off at the unoccupied guard gate, but he insisted on driving her home.
M.R. guided him to the quadplex where she lived. Once he stopped the
car, M.R. ran to her door and opened it. When she turned around to close
the door, Kitchings was right there. He pushed her inside and closed the
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door while M.R. screamed for help. She thought Kitchings was holding
something under his shirt, but she did not see what it was. M.R.’s dogs
were barking. Kitchings threatened to kill her and her dogs if she did not
do what he said. He said, “We’re going to your bedroom,” and M.R. led
him there.
In M.R.’s bedroom, Kitchings told her to take off her shoes. She
complied. He removed his pants and underwear, pushed M.R. down on the
bed, aggressively grabbed her thighs, and ripped off her pantyhose. He
then ordered M.R. to stand up so he could remove her dress. She
complied. When M.R. was fully undressed, he pushed her back onto the
bed, got on top of her, and penetrated her vaginally with his penis while
digitally penetrating her anus. He then put his penis in her mouth. Next,
he penetrated her in the anus while digitally penetrating her vagina.
Kitchings was not wearing a condom and he ejaculated in her vagina.
During the entire incident, M.R. pleaded with him to leave and told him
that she did not want this.
After the assault, Kitchings got dressed and M.R. heard the door slam
as he left. Then, she locked the door, grabbed her cellphone, ran into her
closet and called 911. The 911 call was played for the jury. The police
arrived and took her to the hospital. Afterwards, she went to the Butterfly
House where a rape kit was collected.
The State introduced photographs taken of M.R. at the Butterfly House
showing bruising on her arm, which she attributed to being grabbed by
Kitchings. The State also introduced photographs taken of M.R. two days
after the incident by her friend in New York. These photos depicted
bruising on her arm as well as bruising on her left thigh, which M.R. stated
were caused by Kitchings when he held her down in her bedroom.
On cross-examination, the defense noted that there were no
photographs from the Butterfly House of bruising on M.R.’s thigh, even
though M.R. stated that the nurse took pictures of it. The defense further
pointed out that M.R. did not tell the detective that she had bruising on
her thigh when he explicitly asked her during her Butterfly House
interview if she had any bruises other than the bruising on her arm.
Defense counsel highlighted the inconsistency between M.R.’s follow-up
interview with the detective, where she stated that the bruises on her leg
were caused by Kitchings when he grabbed her in the car, and her trial
testimony, where she indicated the bruises were caused by Kitchings
holding her down during sex. M.R. clarified that the bruises came from
both instances, despite acknowledging that Kitchings probably would not
have grabbed her in the exact same spot.
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The Mother/Daughter Uber Passengers
The mother and daughter, who were in the car with M.R. before being
dropped off, testified at trial. The daughter testified that during their ride,
M.R. mentioned that she was sad to be going home by herself. The mother
said that M.R. was talking a lot to Kitchings and saying that she was going
back home by herself.
M.R.’s neighbor
M.R.’s neighbor in the adjacent quadplex testified that she was home
on the night of the incident and woke up around 1 a.m. when she heard
two car doors slam, but then went back to sleep. She did not hear anybody
screaming or dogs barking when she woke up and did not notice any police
activity later that night. The next morning, she observed that M.R. was
hysterical when she saw her leaving with a police officer.
Responding Jupiter Police Officer
A Jupiter police officer first responded to a sexual battery call at about
2:10 a.m. When she arrived at the scene, she noticed that M.R. appeared
distraught and was pacing back and forth, sometimes crying, and cleaning
up dog feces. M.R. told the responding officer that an Uber driver inserted
his finger into her vagina and anus while they were in the car, but she did
not tell the officer about performing oral sex in the car. M.R. said she was
yelling for help and screaming from the time she opened the car door to
the time she got to her front door. M.R. also asserted that her assailant
urinated in her mouth while she was performing oral sex on him in her
bedroom.
The officer took M.R. to the hospital where she collected M.R.’s dress
and pantyhose for evidence. She turned these items over to a crime scene
investigator for the Jupiter police department.
Jupiter Crime Scene Investigator
The CSI testified that there was a hole in the crotch area of M.R.’s
pantyhose and that the soles of the pantyhose were all black as if they
were well worn. There was a stain on the dress, but M.R. testified earlier
that the stain was from the Kombucha tea she was drinking and had
nothing to do with the case.
She processed Kitchings’ car and testified there was a stain on the
passenger seat, but it was on the backing. There was nothing on the
driver’s side or center console. She did not smell any “cleaning smell” or
note that that the car had just been meticulously cleaned. She discovered
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a blue container tucked behind the liner inside the trunk of the car that
contained a lubricant and condoms.
Sexual Assault Nurse
A sexual assault nurse for Palm Beach County testified that she
examined M.R. at the Butterfly House and took oral, vaginal, and anal
swabs. She observed that M.R. had a bruise on her arm and some
scratches, which she photographed. She observed no injuries in M.R.’s
mouth or her vagina. There was no vaginal bleeding and no sign of injuries
to the anus. M.R. did not complain of any pain during her exam, but
stated there was pain during the assault.
On cross-examination, the nurse stated that M.R. never told her that
she had injuries on her legs and she did not personally observe any
markings or injuries on M.R.’s legs.
M.R.’s New York friend
M.R.’s New York friend testified that just after midnight, she received a
call from M.R. who said she was raped. M.R. was crying and not acting
like herself. The friend immediately got on the computer to look at flights,
and ultimately arranged a flight for M.R. to come home to New York that
same day.
When the friend picked M.R. up at the airport, she did not observe any
injuries on her, but she indicated that M.R. did not look like her usual self.
She stayed with M.R. for a few days. She noticed a bruise on M.R.’s upper
arm and on the upper part of her leg between her knee and her hip, which
she photographed at the Jupiter detective’s request.
The Jupiter Detective
The Jupiter detective testified that he received a call around 2:30 a.m.
and responded to the Jupiter Medical Center. He observed that M.R.’s
demeanor was very quiet. During M.R.’s time at the hospital, she was
making phone calls to her friend.
The detective took M.R. to the Butterfly House and interviewed her after
her rape kit was collected. The recorded interview occurred at about 7:40
a.m., about 5 ½ hours after the 911 call came in. After the interview, he
brought M.R. back to the Jupiter Police Department where he conducted
a video-recorded follow-up interview. The detective then took M.R. back
to her residence and later transported her to the airport.
When M.R. was back in New York, the detective conducted a
clarification interview with her over the phone. He testified that M.R.’s
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story had not changed between the first interview and the follow-up
interview.
The detective put Kitchings under surveillance and he was arrested
about 36 hours after the 911 call. The detective interviewed Kitchings for
about two hours. The detective testified that M.R.’s Uber ride started at
12:34 a.m. and ended at 1:17 a.m. Kitchings completed two more Uber
fares afterwards, from 2:34 to 3:47 a.m. and 4:26 to 4:55 a.m., before
arriving home around 5:00 a.m.
On cross-examination, the detective stated that no firearm was found
in the car and there was no evidence showing that there was a gun in
Kitchings’ house. On redirect, he indicated that he saw multiple pictures
of Kitchings with a gun on Facebook.
Palm Beach County Sheriff’s Office Forensic Scientist
A forensic scientist processed M.R.’s rape kit. The oral swabs were
negative for seminal fluid and the scientist was unable to identify any
sperm cells. The vaginal, cervical, and labia swabs all tested positive for
seminal fluid. The anal swabs tested positive for seminal fluid, but the
scientist was unable to identify sperm cells. She did identify sperm cells
on the perianal swabs.
The scientist also tested swabs from the fitted sheet from M.R.’s
bedroom, which tested negative for blood and semen. She was never given
M.R.’s dress or pantyhose to test.
DNA Forensic Scientist
A senior forensic scientist for the Palm Beach County Sheriff’s Office
performed a DNA analysis on the swabs. Regarding the vaginal swabs,
there were two contributors of DNA for the non-sperm fraction. She
identified M.R. as one contributor, but could not determine the second
contributor based on the limited information. For the sperm fraction of
the vaginal swabs, Kitchings could not be excluded as a contributor.
Kitchings also could not be excluded as a contributor to the sperm fraction
of the perianal and anal swabs.
Trial Testimony—The Defense Case
Defendant Gary Kitchings
Kitchings took the witness stand in his defense. He testified that after
he dropped off the mother and daughter, M.R. became flirtatious, leaning
over and telling him, “Wow, you look really great for your age.” He stated
that this caught his attention because he thought a young lady might be
interested in him. M.R. asked him if he was married and he told her he
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has been married for over 30 years. M.R. bumped Kitchings with her elbow
in a playful way and asked him if he cheats. He testified that when she
asked this question, he thought, “this is headed towards sex.”
M.R. told Kitchings that her boyfriend had dumped her and that she
hadn’t had sex in over a year. Kitchings responded, “Well whose fault is
that,” and told her that if she was interested in sex, all she had to do was
head to Clematis Street and there would be all kinds of guys that would
be willing participants because “that’s what they go down there for.”
M.R. asked Kitchings if he would be interested in coming inside once
they got to her place. He told her to “just go to Clematis and you can . . .
pick up guys there; guys don’t say no.” M.R. asked, “Well, what about you;
when we get to my place would you like to come in,” to which Kitchings
responded, “Well, if you asked me in I wouldn’t say no.”
M.R. put her hand on Kitchings’ knee and rubbed his inner thigh back
and forth and fondled his hair. When they arrived at M.R.’s house he said,
“So are you going to invite me in” and M.R. said “yes.” M.R. invited him
into the house and he was under the impression that they were going to
have sex. She unlocked the door and apologized for her dogs.
M.R. led Kitchings to her bedroom. M.R. pulled her dress up around
her waist and pulled her pantyhose down below her knees before she laid
down on the bed and started “kicking her feet like she was riding a bicycle
and giggled.” Kitchings reached for her pantyhose and pulled them. M.R.
stated that she hadn’t had sex in awhile and that she was “okay,” meaning
“disease-free.” She asked if Kitchings had any relationships where he did
not use a condom. He declared he was “disease-free.”
Kitchings took off his glasses, kneeled on the ground, and started
performing oral sex on M.R. At some point, he stopped and undressed
before continuing to perform oral sex. M.R. nudged Kitchings to swap
positions and she began performing oral sex on him.
Kitchings testified that he suffers from hypertension and
cardiovascular disease, and has several stents in his heart, so it is a
challenge for him to get an erection. It took him about 10-15 minutes to
get an erection and, when he did, he nudged M.R. to indicate that it was
“time to engage in intercourse.” They had missionary position sex for
about 5 to 10 minutes at most. Kitchings stimulated M.R. anally and there
was some minor penetration. He ejaculated in M.R.’s vagina while in the
missionary position.
Kitchings told M.R. that he had to go back to work, so he got dressed.
M.R. asked how she could get in touch with him again sometime.
Kitchings asked for a piece of paper and a pencil and told her he would
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give her his number. He wrote his information on the paper and said,
“Okay, sweetie, I’ve got to go.” He said goodnight and told her to lock the
door after he left. Kitchings testified that the ride ended around 1:17 a.m.
and he was in M.R.’s house between 20-30 minutes. After he left her
house, he completed two more Uber fares and arrived home around 5 a.m.
Verdict and Sentence
The jury found Kitchings guilty of burglary, false imprisonment, and
three of the four counts of sexual battery (deadly weapon/physical force).
The jury acquitted him of any sexual battery that occurred in the car. The
trial court sentenced Kitchings to 22 years for the sexual battery counts
and burglary count and to five years on the false imprisonment count, to
run concurrent with his 22-year sentence.
The trial court erred by excluding Kitchings’ statement to the
police given shortly after his arrest because it was admissible to
rebut an implied charge of recent fabrication under section
90.801(2)(b), Florida Statutes
After Kitchings was arrested, he spoke to the police during a recorded
interview that lasted over 2 ½ hours. In his statement to the police, he
repeatedly denied the sexual assault allegations and maintained that he
had consensual sex with M.R. He offered to submit to a polygraph test
over a dozen times to prove his innocence. While he acknowledged that
he made a mistake by cheating on his wife, he was adamant that he did
not commit a crime. Even when the detective told him that his story made
“zero sense,” Kitchings stated, “That may be true, but that doesn’t stop it
from being the truth.”
The state did not offer a transcript or recording of the police interview
into evidence.
At trial, the state opened its cross-examination of Kitchings by asking
the following:
Q: You’ve had the opportunity to sit in the
courtroom the whole time, right?
A: Yes.
Q: Listen to all of the testimony?
A: Yes.
Q: Every single witness?
A: Sure.
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Q: You’ve got to look -- you’ve looked at every
single exhibit?
A: From a distance but yes.
Q: You have heard all of the scientific evidence?
A: Yes.
During the remainder of cross-examination, the State focused on
inconsistencies between Kitchings’ police interview and his trial testimony.
Much of the cross-examination employed four techniques which had the
capacity to mislead the jury. First, the prosecutor pulled words out of
context from the statement to the police in a way that changed their
meaning; defense counsel addressed some of this misdirection on redirect
examination. Second, the prosecutor mischaracterized what was said in
the statement to the police to make it appear that there was a conflict with
in-court testimony. Third, the prosecutor suggested facts not in evidence
which were contrary to what Kitchings had said in his statement to the
police. For example, the prosecutor attempted to imply that Kitchings had
taken drugs for erectile disfunction when, in fact, the statement to the
police said the opposite. Fourth, the prosecutor impeached Kitchings for
matters in his trial testimony that were omitted from the statement to the
police.
On redirect examination, defense counsel sought to introduce
Kitchings’ entire statement to the police based on the rule of completeness,
the State opening the door, and as a prior consistent statement. The trial
court denied the motion. Defense counsel later sought to admit the
interview to rebut the State’s implication of recent fabrication based on
Kitchings “ha[ving] the opportunity to see all of the things in court.” The
trial court denied the motion.
We first address Kitchings’ argument that his entire statement to the
police was admissible under the rule of completeness because “the state
brought out only the incriminating parts of [his] statement” and the “rest
of the statement would have put all those supposed incriminating
statements in context, so the jury could hear they were not actually
incriminating.”
The statutory rule of completeness is codified in section 90.108(1),
Florida Statutes (2018), which states:
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require him or
her at that time to introduce any other part or any other
writing or recorded statement that in fairness ought to be
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considered contemporaneously. An adverse party is not
bound by evidence introduced under this section.
The purpose of the rule “is to avoid the potential for creating misleading
impressions by taking statements out of context.” Schwartzberg v. State,
215 So. 3d 611, 615 (Fla. 4th DCA 2017) (quoting Larzelere v. State, 676
So. 2d 394, 401 (Fla. 1996)). “This rule is not absolute, and ‘the correct
standard is whether, in the interest of fairness, the remaining portions of
the statements should have been contemporaneously provided to the
jury.’” Ramirez v. State, 739 So. 2d 568, 580 (Fla. 1999) (quoting Larzelere,
676 So. 2d at 402). However, the rule “does not apply unless a written or
recorded statement is introduced into evidence.” Nock v. State, 256 So. 3d
828, 830 (Fla. 2018).
In Nock, the Florida Supreme Court narrowly construed section
90.108(1). Id. The defendant in Nock had given a custodial statement to
the police which was videotaped. Id. at 831. At trial, the state did not
introduce the videotape into evidence; instead, the State called the
arresting detective to testify about the statement. Id. Nock sought to
admit the entire videotape under the rule of completeness. Id. Focusing
on the statutory language--“[w]hen a writing or recorded statement or part
thereof is introduced by a party”--the Supreme Court held that the rule of
completeness was inapplicable to admit the entire videotape “because the
State never introduced any portion of the recording into evidence.” Id. at
836. The court observed that under the “court’s precedent applying the
common law rule of completeness . . . Nock was entitled to introduce the
exculpatory portions of Nock’s statement to the police and other relevant
portions of the statement on cross-examination of the detective.” Id.
This case is similar to Nock in that the State did not introduce
Kitchings’ statement to the police into evidence. For this reason, the rule
of completeness did not compel the admission of the entire recorded
statement at trial.
Although not admissible under the rule of completeness, the statement
to the police was admissible under section 90.801(2)(b), Florida Statutes
as a prior consistent statement offered to rebut an express or implied
charge of recent fabrication. Section 90.801(2)(b) provides in pertinent
part:
(2) A statement is not hearsay if the declarant testifies at the
trial or hearing and is subject to cross-examination
concerning the statement and the statement is:
***
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(b) Consistent with the declarant’s testimony and is
offered to rebut an express or implied charge against
the declarant of improper influence, motive, or recent
fabrication . . . .
“Prior consistent statements are generally inadmissible to corroborate
or bolster a witness’s trial testimony, because such statements are usually
hearsay.” Peterson v. State, 874 So. 2d 14, 16 (Fla. 4th DCA 2004).
However, under section 90.801(2)(b), prior consistent statements are not
hearsay and can be used as substantive evidence if the declarant testifies
at trial, is subject to cross-examination regarding the prior statement, and
the statement is offered to rebut an express or implied charge of improper
influence, motive, or recent fabrication. § 90.801(2)(b), Fla. Stat. (2018).
This exception applies only “where the prior consistent statement was
made prior to the existence of a fact said to indicate bias, interest,
corruption, or other motive to falsify.” Carter v. State, 115 So. 3d 1031,
1035 (Fla. 4th DCA 2013) (citation and internal quotation marks omitted).
There must be an initial attempt on cross-examination to demonstrate the
improper influence, motive or recent fabrication; once such an attempt has
occurred, then prior consistent statements are admissible on the redirect
examination or through subsequent witnesses to show the consistency of
the witness’ trial testimony. See, e.g., Wise v. State, 546 So. 2d 1068 (Fla.
2d DCA 1989).
The prosecutor began her cross examination with a series of questions
that are a textbook example of an “implied charge . . . of recent fabrication”
within the meaning of section 90.801(2)(b) by suggesting that Kitchings
had manufactured his testimony after fully evaluating all of the state’s
evidence against him.
Q: You’ve had the opportunity to sit in the
courtroom the whole time, right?
A: Yes.
Q: Listen to all of the testimony?
A: Yes.
Q: Every single witness?
A: Sure.
Q: You’ve got to look -- you’ve looked at every
single exhibit?
A: From a distance but yes.
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Q: You have heard all of the scientific evidence?
A: Yes.
That this line of questioning amounts to an implied charge of recent
fabrication was established in State v. Boggess, 269 So. 3d 616 (Fla. 4th
DCA 2019). In that case, while cross-examining the defendant, “the state
highlighted that [the defendant] sat through the trial and had the
opportunity to listen to all of the witnesses’ testimony.” Id. at 619. The
state also pointed to facts the defendant had omitted from an earlier
statement. We observed that this line of questioning “clearly . . . suggested
that Boggess fabricated his trial testimony.” Id.
Given this charge of recent fabrication, 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. 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. 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
trial judge abused her discretion by refusing to allow the admission of
Kitchings’ statement to the police.
The importance of this testimony, and the reason why the error cannot
be deemed to be harmless, is demonstrated by the written question the
jury asked during deliberations—“Whose decision was it not to show
[Kitchens’] interview?”
We cannot say “beyond a reasonable doubt” that the omission of the
statement to the police “did not contribute to the verdict.” State v. DiGuilio,
491 So. 2d 1129, 1135 (Fla. 1986).
Under the facts developed by the time of trial, it was not error to
preclude the jury from learning about M.R.’s prior allegations of
rape in New York
A second issue involves the admissibility of a prior incident in New
York, where M.R. claimed to have been a victim of a violent sexual battery.
We hold that the evidence developed by the time of the trial in this case
was not sufficiently probative of a common scheme or plan to justify its
admission under section 90.404(2), Florida Statutes (2018).
M.R.’s Deposition
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Prior to trial, the defense took M.R.’s deposition, during which she
revealed that she had been raped in New York eleven months prior to the
incident in this case. She stated that she met a man (the “New York
defendant”) on a dating website called “Seeking Arrangement.” M.R. and
the New York defendant texted back and forth for about a week before
meeting for dinner at a restaurant.
After dinner, they went to a bar at the hotel where the New York
defendant was staying. They had a few drinks. The New York defendant
said he had a present for her in his room and that he also wanted to give
her his business card. M.R. accompanied him to his room, but when she
got there, there was no gift.
M.R. reported that the New York defendant became aggressive with her
and pushed her down on the bed. He started biting her lip, and tried to
pull down her stockings. He said he wanted to have sex with her but she
said no. She ran to the door and tried to escape, but he came up behind
her and dragged her back to the bed where he began punching her and
strangling her. The bed and bathroom were filled with blood. He kept
telling her that she was going to die.
M.R. made up a story about being a single mom of a young daughter
and pleaded with him to let her go once she gave him what he wanted.
M.R. told him that she had to get home because a babysitter was watching
her daughter and she worried that the babysitter was going to leave. She
asked if she could text the babysitter and the New York defendant took her
phone, asked for the number, and texted the random number M.R. gave
him, asking the fake babysitter if she could stay for another hour.
To get out of the hotel room, M.R. gave in to his demands and performed
oral sex on him. He ejaculated in her mouth. Before he let M.R. go, he
made her wash the blood off her face.
When she left the hotel, she saw a police car parked across the street.
She went over, showed the police officer a picture of the New York
defendant, and stated that he tried to kill her. The police went up to the
room and arrested the New York defendant.
M.R. stated that she and the New York defendant never had discussions
about BDSM or sexual preferences. M.R. denied touching the New York
defendant in a sexually suggestive way prior to going up to his room, other
than kissing him at the restaurant and the bar. The New York defendant
did not talk about urination in any way and they did not have anal sex.
She said that they had never had a conversation about exchanging
money for the date and that he never paid her any money during the date,
but that he tried to give her a chunk of money after he raped her, which
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she declined. When asked if she received any money from the New York
defendant, M.R. replied she had $400 that she had withdrawn herself that
evening. She stated that she had never accepted money from any person
for sex or for a date. She also stated that she had no intention of filing a
civil suit against the New York defendant.
The State’s Motion in Limine
After M.R.’s deposition, the State moved in limine to prohibit the
defense from bringing out any information relating to the prior rape
allegation, arguing that the admission of that evidence was precluded by
section 794.022, Florida Statutes, Florida’s rape shield law. The defense
filed a written response, asserting that it should be permitted to cross-
examine M.R. about the New York case because such evidence constituted
reverse Williams 1 rule evidence, admissible pursuant to section
90.404(2)(a), Florida Statutes, as well as impeachment evidence. The
defense also argued that Florida’s rape shield law did not preclude the
admissibility of such evidence.
The trial court held a hearing on the motion. At the time of the hearing,
the New York defendant’s criminal case was still pending. The defense
provided the following evidence for the court’s in-camera review: (1)
transcripts of M.R.’s depositions; (2) a compilation of surveillance videos
showing M.R. and the New York defendant on their date; and (3)
screenshots from the “Seeking Arrangement” website.
One video showed M.R. and the New York defendant at a restaurant for
about an hour. The next video showed M.R. and the New York defendant
walking into the hotel to deposit his luggage. Later, the surveillance video
showed them leaving the hotel and going to an ATM, where the New York
defendant withdrew $500. They went back to the hotel and made their
way to the bar, where they are seen having drinks and kissing. During
their time in the bar, the New York defendant left the bar alone and is seen
on surveillance video withdrawing an additional $500 from the same ATM.
He then returns to the bar where he and M.R. continue to have drinks.
Surveillance footage shows them leaving the bar and getting into an
elevator, presumably to go up to his room. Two hours later, M.R. is seen
on the surveillance video getting into the elevator, exiting the hotel, and
walking over to a police car. The surveillance video then shows multiple
police officers getting into the hotel elevator.
The two screenshots of the Seeking Arrangement website were the home
page and the “How it Works” page. The home page advertises the site as
“[t]he #1 Sugar Daddy Dating Site in the World” with “Millions of Women
1
Will. v. State, 110 So. 2d 654 (Fla. 1959).
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Seeking Sugar Daddies.” The sign-up page prompts a potential user to
indicate whether they are a “sugar baby” or a “sugar daddy/mommy.” The
“How it Works” page describes sugar babies as “Attractive people looking
for the finer things in life . . . [who] get to experience a luxurious lifestyle
and meet wealthy people on a regular basis.”
Defense counsel argued that the evidence was admissible as both
impeachment evidence and as reverse Williams rule evidence. Counsel
noted that this was not a traditional Williams rule hearing, in that the
pending criminal case in New York precluded his ability to call the New
York defendant to testify directly about the incident. Counsel argued that
factual similarities justified admission of the New York incident including,
among other things, the fact that (1) both men claimed consent, (2) there
was electronic documentation which identified both men, and (3) there was
a financial motive in both cases, given the way M.R. connected with the
New York defendant and the potential of suing Uber. Defense counsel
stated that more similarities might emerge when the New York defendant
became available as a witness.
In response, the State argued that the New York facts were too
dissimilar to be admissible as reverse Williams rule evidence.
Following the hearing, the trial court granted the State’s motion in
limine, finding that evidence regarding the New York case was both
inadmissible as Williams rule evidence and precluded by the rape shield
statute.
Standard of Review
A ruling on Williams rule evidence is a matter within the broad
discretion of the trial court. Geldreich v. State, 763 So. 2d 1114, 1116 (Fla.
4th DCA 1999). In the absence of an abuse of discretion, the trial court’s
ruling on admissibility will not be overturned on appeal. Id.
The trial court did not abuse its discretion in ruling that the reverse
Williams rule evidence was inadmissible
The Williams rule is codified in section 90.404(2)(a), Florida Statutes:
Similar fact evidence of other crimes, wrongs, or acts is
admissible when relevant to prove a material fact in issue,
including, but not limited to, proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, but it is inadmissible when the evidence
is relevant solely to prove bad character or propensity.
This rule “allows the State to introduce similar fact evidence of other
crimes or acts by the defendant to prove a relevant matter in the
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prosecution of the crimes for which he or she is on trial.” Newby v. State,
272 So. 3d 862, 869 (Fla. 2d DCA 2019). Generally, the Williams rule
allows the State to offer evidence of other crimes to prove a material fact
at issue. See, e.g., Williams v. State, 621 So. 2d 413, 414-15 (Fla. 1993).
“Although the cases in Florida generally involve the offer of [section
90.404(2)(a)] evidence by the prosecution against a criminal defendant,
section 90.404(2)(a) is equally applicable to evidence offered by a criminal
defendant.” Charles W. Ehrhardt, Florida Evidence, § 404.9 (2012 ed.).
This is often referred to as “reverse-Williams rule evidence.” Id.; Newby,
272 So. 3d at 869. Reverse-Williams rule evidence requires the “same
showing of relevancy as evidence offered by the prosecution.” Ehrhardt,
Florida Evidence, § 404.9.
The Florida Supreme Court has concisely explained how the notion of
“similarity” between two offenses or incidents comes into play in a Williams
rule analysis:
Although similarity is not a requirement for admission of other
crime evidence, when the fact to be proven is, for example,
identity or common plan or scheme it is generally the
similarity between the charged offense and the other crime or
act that gives the evidence probative value. Thus, evidence of
other crimes, whether factually similar or dissimilar to the
charged crime, is admissible if the evidence is relevant to
prove a matter of consequence other than bad character or
propensity.
***
Similar fact evidence has been held admissible in sexual
battery cases when the evidence was found to have a logical
relationship to some material aspect of the charged crime
beyond the character of the defendant or his propensity to
force himself on women.
Williams, 621 So. 2d at 414-15. In Williams, involving a sexual battery
prosecution, the Supreme Court held that evidence of two other sexual
assaults committed by the defendant were properly admitted to show a
common plan or scheme to “set up a defense of consent” by seeking out
women “likely not to complain or to complain unsuccessfully.” Id. at 417.
The common scheme or plan asserted by the defense in this case is a
twist on the “Black Widow” cases, where a person engages in a pattern of
poisoning sexual partners for financial gain. See Nelson v. State, 450 So.
2d 1223 (Fla. 4th DCA 1984); “The Black Widow,” at
https://www.flmd.uscourts.gov/black-widow (last visited Jan. 27, 2020).
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The defense contends that M.R. had a financial motive for engaging in
consensual sex with both men and then lying about it.
Here, the lack of direct evidence dulls the probative force of the New
York incident. The New York defendant was not available to testify, so
there was no first-hand account from his perspective for the jury to
evaluate. Although the Seeking Arrangement website and the New York
defendant’s two visits to the cash machine to withdraw $1,000 suggest
that M.R.’s date had a financial component, these facts do not compel that
conclusion. There was no testimony that M.R. agreed to rough sex in
exchange for money. There was no evidence that M.R. sought to shake
down the New York defendant for money after the incident. There was no
evidence that M.R. sought money from Uber, the deep pocket in this case.
There are also significant differences between this case and the New
York case. The New York case involved excessive physical violence; this
case did not. The New York case targeted a man of some means; the
defendant in this case was an Uber driver. In the New York case, M.R. met
the defendant through a dating website for “sugar daddies” and “sugar
babies;” after texting each other for a week, the two connected for a dinner
date. Here, there was no such targeting. M.R. hired an Uber to take her
home, and the defendant just happened to be her Uber driver.
Because of the gaps in the New York story, the proffered evidence of the
New York incident did not have a logical tendency to prove that M.R. had
a financial motive to lie about her contact with Kitchings in this case.
There was no direct evidence that M.R.’s common plan or scheme was to
monetize a fabricated victimhood. The trial court did not abuse its
discretion in refusing to admit evidence of the New York incident. Compare
O’Flaherty-Lewis v. State, 230 So. 3d 15 (Fla. 4th DCA 2017) (court held
that Williams rule evidence admissible because it demonstrated a plan to
obtain money from victims by exposing an extra-marital affair).
Similarly, for the reasons that evidence of the New York incident was
inadmissible as reverse Williams rule evidence, that evidence was also
inadmissible because it did not fall within section 794.022(2), Florida
Statutes (2019), for evidence that “tends to establish a pattern of conduct
or behavior on the part of the victim which is so similar to the conduct or
behavior in the case that it is relevant to the issue of consent.”
The trial court erred in admitting the entire recorded Butterfly
House statement
A third issue involves the admission of M.R.’s entire recorded statement
given at the Butterfly House to rehabilitate her testimony. The jury
listened to the entire recorded statement twice, once during the trial and
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a second time during deliberations, with the aid of a transcript. Although
it is not clear from the record, it appears that the court allowed the
testimony either as substantive evidence under section 90.801(2)(b) or to
rehabilitate M.R. under Monday v. State, 792 So. 2d 1278 (Fla. 1st DCA
2001). Neither reason justified admission of the entire prior statement.
Nothing in the cross-examination of any witness amounted to an
“express or implied charge” against M.R. of “improper influence, motive, or
recent fabrication” under section 90.801(2)(b). “A witness’ credibility is
always an issue at trial, and a general attack on that credibility” does not
justify the admission of a prior consistent statement under section
90.801(2)(b). Jenkins v. State, 547 So. 2d 1017, 1021 (Fla. 1st DCA 1989).
The entire defense in this case was that M.R.’s fabrication was not recent,
that it began when she first contacted the 911 operator, so section
90.801(2)(b) would not apply to admit the prior statement as substantive
evidence. See Monday, 792 So. 2d at 1281; Bertram v. State, 637 So. 2d
258, 260 (Fla. 2d DCA 1994) (where court noted that section 90.801(2)(b)
does not apply where the defense is that charges “were fabricated, but not
that they were recently fabricated”); Hebel v. State, 765 So. 2d 143, 146
(Fla. 2d DCA 2000).
Similarly, the entire recorded statement was not admissible under the
circumstances described in Monday. That case holds that a prior
consistent statement may be admissible as non-hearsay “if it has some
value as rebutting [a] prior inconsistent statement used for impeachment.”
Monday, 792 So. 2d at 1282. As authority, Monday relied on a line of
federal cases and Judge Friendly’s concurring opinion in United States v.
Rubin, 609 F.2d 51, 67 (2d Cir. 1979) (Friendly, J. concurring). Monday
792 So. 2d at 1281-82. Monday held that, under certain circumstances,
a prior consistent statement is admissible to rehabilitate a witness who
has been impeached with a prior inconsistent statement:
[W]e conclude that the admissibility of a prior consistent
statement to rehabilitate a witness who has been impeached
with a prior inconsistent statement is a matter that is within
the discretion of the trial judge. The trial court should not
allow a prior consistent statement if it would merely repeat
what the witness has said at trial. On the other hand, the
trial court may exercise its discretion to admit a prior
consistent statement as rehabilitation if it has some value in
rebutting the prior inconsistent statement used for
impeachment. As the court explained in United States v.
Pierre, [781 F.2d 329 (2d Cir 1986)] the question is whether
the prior consistent statement “has probative force bearing on
credibility beyond merely showing repetition.”
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Id. at 1282.
Reference to the line of federal authority demonstrates that this use of
a prior consistent statement is narrowly circumscribed, so that the
exception does not swallow the general rule of inadmissibility of prior
consistent statements. The cases follow the rule that the “particular
consistent statement sought to be used has some rebutting force beyond
the mere fact that the witness has repeated on a prior occasion a statement
consistent with his trial testimony.” Pierre, 781 F.2d at 331 (emphasis
supplied). For example, where a witness has denied making the prior
inconsistent statement used to impeach his trial testimony, a prior
consistent statement may be “used to establish a pattern of consistency
that tended not simply to corroborate the trial testimony but to diminish
the likelihood that the witness had made the inconsistent statement
attributed to him.” Id. “Another example of a prior consistent statement
with significant rebutting force is a statement offered to clarify or amplify
the meaning of the impeaching inconsistent statement.” Id.
Rehabilitation under Monday and the federal cases contemplates
introduction of only the consistent statement that lines up with the
inconsistency that is the subject of impeachment, not the entire statement
of which the consistent statement is only a small part. Monday involved
the introduction of just two pages of a victim’s diary, not the entire diary.
792 So. 2d at 1280. In Pierre, a DEA agent was impeached by his field
notes which did not contain the fact that the defendant had refused to
make a controlled drug delivery; on redirect examination, the agent was
allowed to testify that “his formal report of the arrest included the fact that
[the defendant] had declined to participate in a controlled delivery” of some
drugs. 781 F.2d at 330. The “five single-spaced typewritten pages” of the
formal report were not introduced into evidence. Id.
Here, the court abused its discretion by admitting the entire Butterfly
House statement, not just the portions of it that were the subject of
impeachment.
This error was compounded because the trial court failed to give a
limiting instruction confining the jury’s consideration of the statement to
a single purpose. Unlike the admission of testimony under section
90.801(2)(b), when a prior consistent statement is admitted for
rehabilitation purposes under Monday, it is not admitted as substantive
evidence of the facts contained in the statement. Rather, it is admitted as
non-hearsay for a more limited purpose. The admission of the prior
consistent statement must therefore be accompanied by a limiting
instruction. See U.S. v. Al-Moayed, 545 F.3d 139, 167-68 (2d Cir. 2008).
For example, in United States v. Castillo, 14 F.3d 802, 806 (2d Cir. 1994),
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the testimony of two police officers about what an undercover officer told
them “was admitted for the limited purpose of clarifying the apparent
contradiction brought out during the cross examination of [the undercover
officer].”
Here, there was no limiting instruction. And the jury listened to the
entire Butterfly House statement. Twice. 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.
Based on the exclusion of Kitchings’ entire initial statement to the
police and the admission of M.R.’s Butterfly House statement, we reverse
the judgments of conviction and remand to the circuit court for a new
trial. 2
DAMOORGIAN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2
Kitchings also complains about certain misrepresentations made by the
prosecutor in closing argument, but most of them came in without objection. The
most egregious argument was that Kitchings was taking Cialis-type medication
to address an erection problem, for which there was no support in the record. A
conviction should be based on the evidence, not on innuendo. There was no
evidence, expert or otherwise, that Kitchings’ sexual performance was enhanced
by Viagra or Cialis-type drugs. However, there was no objection, so there was no
preservation of the inappropriate comment for appeal. Although close, this
argument did not rise to fundamental error.
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