Kitchen v. Court of Common Pleas

• Decision Date: 17 January 2020
• Docket Number: CASE NO. 2:19-CV-3618
• Parties: MICHAEL KITCHEN, Petitioner, v. COURT OF COMMON PLEAS, ROSS COUNTY, OHIO, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MICHAEL KITCHEN, Petitioner, v. COURT OF COMMON PLEAS, ROSS COUNTY, OHIO, Respondent.

CASE NO. 2:19-CV-3618

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

January 17, 2020

JUDGE GEORGE C. SMITH

Magistrate Judge Chelsey M. Vascura

REPORT AND RECOMMENDATION

Petitioner brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that this action be DISMISSED.

I. BACKGROUND

The Ohio Fourth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶5} The Ross County Grand Jury returned a secret indictment charging Michael Kitchen with one count of sexual battery in violation of R.C. 2907.03, a third-degree felony. The Ross County Sheriff's Office arrested Kitchen and following his arraignment the next day, he was released from custody upon posting a recognizance bond. In its bill of particulars the state alleged that Kitchen engaged in vaginal intercourse with Sara Howell, who was not his spouse, when he knew that she was unaware that the act was being committed.

{¶6} In its opening statement at the jury trial, the state asserted Sara Howell and her boyfriend let Kitchen, her high school friend, sleep over on a couch in their apartment in Chillicothe after going to eat. After her boyfriend left the next morning for work, Howell awoke in her bedroom to discover that Kitchen was engaged in sex with her without her consent. Kitchen finished the sexual act, left the room, and went back to sleep on the couch in another room. After exchanging text messages with her father and a friend, Howell contacted the police, made a report, and was administered a rape kit. The testing determined that Kitchen's DNA was found in semen in both Howell's vaginal and anal cavities.

{¶7} In Kitchen's counsel's opening statement, he contended that Kitchen and Howell engaged in consensual sex, which had been initiated by Howell. He further conceded that when Kitchen was awakened by three law enforcement officers responding to Howell's report of sexual battery, he lied that he did not have sex with Howell because he was terrified and did not know what Howell had told them.

{¶8} The state's first witness, Chillicothe Police Officer Shane Simmons, testified that he and Officer Chip Campbell were dispatched to Howell's apartment to respond to a reported sexual assault. They talked to Howell and then entered the apartment, where they observed Kitchen asleep on a couch. Then they contacted Detective Twila Goble, who arrived and with Officer Campbell, they began questioning Kitchen after advising him of his Miranda rights. Officer Simmons's body camera was activated during his interaction with both Howell and Kitchen. On cross-examination Kitchen's attorney played the body camera footage that had been provided to him by the state in discovery. However, Officer Simmons testified that the footage shown was not the end of his body camera footage. He indicated he had viewed other footage from his body camera concerning the reported sexual battery.

{¶9} Outside the presence of the jury Officer Simmons explained that there was approximately 21 minutes of additional footage of Officer Campbell interrogating Kitchen that the police had failed to disclose to the prosecutor because the old body cameras would download footage to the server in multiple sections when it became too lengthy. Kitchen moved for a mistrial based on the state's failure to disclose this evidence in discovery.

The trial court overruled Kitchen's motion, ordered the state to provide Kitchen with a copy of the undisclosed body camera footage, and continued the case until the next morning to permit Kitchen and his counsel to review the footage.

{¶10} The next morning after receiving the previously undisclosed recording of Officer Simmons's body camera footage, Kitchen's attorney again asked for a mistrial, generally asserting that "there would have been different statements and procedure and strategy in this case had we been provided it." He claimed that even if this additional undisclosed footage was excluded, "it still doesn't alleviate the issue that the jury knows a video exists and is not going to be play[ed] and I've made statements, or representations, that the video would be played * * *." Significantly, the parties and the trial court agreed that the state's failure to provide this footage to the defense was unintentional.

{¶11} The state noted Officer Simmons's and Detective Gobles's statements in a Master Incident Report, which the state had provided to Kitchen and his counsel,referenced several of Kitchen's statements from the undisclosed body camera footage: (1) Kitchen told the officers that he did not remember having sex with Sara; (2) Kitchen told Officer Campbell he had a dream last night about having sex with his girlfriend; and (3) Kitchen stated that his girlfriend had told him that he had groped her in his sleep before.

{¶12} The trial court denied Kitchen's second motion for mistrial because: (1) despite his concession that he initially told police he did not have sex with Howell, Kitchen's defense of consensual sex was consistent with what both the undisclosed and disclosed portion of Officer Simmons's body camera footage revealed; (2) portions of the undisclosed body camera footage were disclosed to Kitchen in the police reports the state gave to the defense in discovery; and (3) although there were discrepancies and inconsistencies created by the state's Crim.R. 16 violation, they were not substantially material to Kitchen's defense.

{¶13} Nevertheless, the trial court prohibited the state "from utilizing any portion of the undiscovered video in any way, shape or form," but permitted the defense to use it in any way it felt necessary. The court finally noted that it had not had an opportunity to review the undisclosed footage, but that it would reserve further ruling until the court had the chance to compare it with the reports that were provided in discovery.

{¶14} Upon return from recess the trial court instructed the jury that "[b]ased upon the State's failure, not the defense, * * * to provide the remainder of the video, this Court has ruled that the undisclosed portion will not be admitted into evidence. Therefore, you are not to draw any inference that the Defendant has failed to produce the remainder of the video * * *." The parties then concluded their examination of Officer Simmons.

{¶15} On the state's direct examination of its next witness, Officer Campbell, it questioned him about statements Kitchen had made addressing why he stayed at Howell's apartment that night. Apparently, Kitchen told the officers that he and Howell had been friends for a while and they had not spoken for some time. Kitchen's counsel objected to this testimony on the basis that it had not been disclosed in discovery, but the state countered that Kitchen's statement was contained on the disclosed body camera footage. The trial court overruled the objection, but again warned the state that "if this officer testified about anything said only on the undisclosed portion, that is a violation of my order and if he violates my order or any other officer violates my order, I will grant a mistrial."

{¶16} Subsequently, the state asked Officer Campbell "when you were speaking with the Defendant in this case, did you happen to ask him about any dreams he might have had?" and the officer responded that he had. Kitchen objected and moved for a mistrial.

{¶17} The assistant prosecutor opposed the motion and stated that it was her understanding that she was permitted to ask about statements that were on the undisclosed part of the body camera footage if they were in fact contained in the police reports provided in discovery. Kitchen's statement about the dream was on both the undisclosed footage and the disclosed police reports. The assistant prosecutor stated that it was not her intent to violate the court's order and moved to strike her question and Officer Campbell's answer, and release the witness. The trial court noted that it did not understand how the assistant prosecutor had misinterpreted its order; it granted the mistrial. In its entry declaring the mistrial the court noted that it initially overruled Kitchen's motion for a mistrial based on the state's violation of Crim.R. 16, but granted Kitchen's renewed motion when the state violated the court's curative order.

{¶18} Subsequently, the trial court set the retrial date. Over four months after the mistrial and two months after rescheduling of the trial Kitchen filed motions to dismiss based on double-jeopardy and his constitutional speedy-trial rights. Kitchen claimed that the state intentionally goaded him to request a mistrial because of its prosecutorial misconduct and that the over five-month delay between the mistrial and the scheduled retrial was constitutionally unreasonable. The state responded.

{¶19} After the state responded the trial court denied Kitchen's motions to dismiss in two separate entries issued on the same date. Addressing double jeopardy the court concluded that "[a]lthough this Court cannot understand how his ruling was misinterpreted by the Assistant Prosecuting Attorney, this Court cannot find that the offending question was designed to goad the defendant into moving for a mistrial. It certainly was prosecutorial misconduct, but this Court cannot find that i[t] was the intention of the Assistant Prosecuting Attorney to cause a mistrial." On the constitutional speedy-trial claim the court concluded "the five month delay in rescheduling the Defendant's trial does not constitute presumptive prejudice" and "[e]ven in considering the four factor balancing test this Court cannot determine that the five month delay is constitutionally unreasonable."

II.

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