WEST PALM BEACH, Fla. – A former Uber driver found guilty of raping a passenger after he gave her a ride home from SunFest in 2017 is getting a new trial.
Florida’s Fourth District Court of Appeal ruled Wednesday that Gary Kitchings, 60, didn’t receive a fair trial because the jury never heard his full statement to police after his arrest when the court improperly admitted the entirety of his accuser’s previous statements into evidence.
Kitchings and his accuser testified during the 2018 trial, providing conflicting accounts of what occurred.
The 20-page opinion concluded that the court erred by excluding Kitchings’ statement to police after his arrest because it was admissible to rebut an implied charge from the prosecutor that he changed his story when he took the witness stand.
During his interview with police, Kitchings denied the allegations and claimed the sex was consensual. He offered to take a polygraph test and acknowledged that he made a mistake by cheating on his wife, but he was adamant that he hadn’t committed a crime.
The state did not offer a transcript or recording of the police interview into evidence.
“Given this charge of recent fabrication, Kitchings was entitled to have the jury consider his entire statement to the police, given before his lawyers were involved, before witness statements were taken, before exhibits were collected, before scientific evidence was analyzed,” the appellate court ruled.
The opinion also concluded that the court erred by admitting the accuser's statement taken when she was at the sexual assault response care center at Wellington Regional Medical Center.
“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,” the ruling stated.