State v. Kitchens

• Decision Date: 18 June 2015
• Docket Number: 32999-2-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. RICKEY LEE KITCHENS, Appellant.

STATE OF WASHINGTON, Respondent, v. RICKEY LEE KITCHENS, Appellant.

No. 32999-2-III

Court of Appeals of Washington, Division 3

June 18, 2015

UNPUBLISHED OPINION

FEARING, J.

Rickey Kitchens appeals from his conviction for felony driving under the influence. He argues that the trial court violated his constitutional right to a public trial when it allowed peremptory juror challenges by paper and for-cause challenges outside the hearing of the jury. He further contends that the trial court admitted testimonial hearsay in violation of his right to confront witnesses against him. Finally, Kitchens argues that, to the extent defense counsel failed to object to the testimonial hearsay, Kitchens received ineffective assistance. We agree the trial court permitted inadmissible hearsay, but conclude the admission is harmless. We reject Kitchens' other arguments and affirm his conviction.

FACTS

During the early afternoon of September 1, 2012, a Jeep Cherokee pulling a camper trailer fishtailed and flipped on four lane Washington Highway 167. The Jeep landed upside down. Many who saw the accident rushed to the Jeep to provide assistance. The rescuers encountered difficulty opening the jammed Jeep's passenger and driver doors, but the driver's side door unsealed first. The responders pulled Rickey Kitchens and Marcia Howard, in that order, from the Jeep through its upside down driver's side door. Rickey Kitchens' main defense at trial was that Howard, not him drove the Cherokee.

Brenda Petersen, Gary Hillin, and Tiffany Stewart, among others observed the accident. Brenda Petersen drove behind the Jeep in the other lane. From a car length away, Petersen saw the trailer veer off the road, fishtail, and flip.

Gary Hillin witnessed the accident from opposing traffic. Hillin stopped his car on the opposite shoulder parallel to where the Jeep Cherokee landed after it overturned. Hillin crossed the road to assist. He went to the driver's side door of the upside down Jeep and saw a male driver and a female occupant. Hillin and others pulled Kitchens out of the vehicle first. Upon exiting the rolled Jeep, Rickey Kitchens told Hillin that he was not driving. Gary Hillin smelled alcohol on Kitchens' breath.

Tiffany Stewart saw the Jeep and trailer fishtail and accelerate further, exacerbating the fishtail. The Cherokee hit the gravel on the right-hand side of the freeway causing the trailer to flip and slingshot the Jeep over the top. Stewart stopped her vehicle, dialed 911, handed her fiancee the phone, and ran to the Jeep to help. Stewart was the third person to arrive at the vehicle. She concluded Rickey Kitchens drove the Jeep.

Two other people pulled Rickey Kitchens from the Jeep, after which Tiffany Stewart helped Kitchens to his feet. Kitchens immediately looked at Stewart and said: "I wasn't driving. She was driving." Report of Proceedings (RP) at 244. Stewart observed Kitchens swaying. Kitchens smelled profusely of alcohol. Kitchens rambled further that he did not drive and he was not drunk. Stewart politely agreed with him.

Washington State Patrol Trooper Raymond Seaburg responded to the scene. Trooper Kyle Burgess later arrived to assist Trooper Seaburg. Seaburg and Burgess distributed statement forms to witnesses. Burgess observed Rickey Kitchens as belligerent. Kitchens' eyes were bloodshot and watery, his face flushed, and his speech slurred.

At the scene, Trooper Kyle Burgess examined the relative positions of the Jeep Cherokee driver and passenger seats. He testified at trial:

If we have two people and we're not sure which one is driving, one is tall and one is short, we should be able to look at the seat and tell who was driving just based on the positioning of the seats. In this case, Mr. Kitchens is 5 foot 11. His seat was adjusted for someone 5 foot 11. The passenger is 5 foot 6 and her seat was forward and adjusted for someone shorter. RP at 282.

PROCEDURE

The State of Washington charged Rickey Kitchens with felony driving under the influence in violation of RCW 46.61.502(6)(a). Kitchens stipulated to four prior DUIs within the last ten years, an element of the felony. See RCW 46.61.5055(14)(a).

Rickey Kitchens contends on appeal that the voir dire in his case violated his right to a public trial. Therefore, we reproduce the relevant portion of the voir dire transcript:

THE COURT: Folks, we're going to let the attorneys do their final selection here in writing. It will take a few minutes for them to do that. While they're doing that you can talk quietly among yourselves over anything other than this case. You can't talk about this case. If you want[, ] stand up and stretch, feel free to do that as well and we'll be back to you here shortly.

If any of you have an urgent need to use the restroom, you can use the restroom on this floor only. The same instruction applies on not talking to anybody about the case and not allowing anyone to discuss it in your presence. Use the restroom and come right back to your same seat, so the lawyers can match up your number and your face when they're doing their final selections. Okay?

(Attorneys doing their peremptory challenges.)

THE COURT: Counsel.

(Sidebar held, but not reported.)

RP at 2-3. The trial court then directed jurors and alternates to sit in the jury box.

The trial court filed the written peremptory challenges that day. The filing listed Rickey Kitchens' and the State's respective peremptory challenges by jury number and name. The trial court made a record of what occurred during the unreported sidebar:

THE COURT: We did have a discussion at sidebar regarding challenges for cause. The defense asked to excuse No. 5 and No. 18. I indicated that I believed that both of those jurors had rehabilitated themselves sufficiently so that they could remain on this case, and I denied those challenges.

There was also an agreed challenge to Juror No.-an agreed excusal of Juror No. 29, and we excused her.

Anything else you want to make a record of, counsel?

[DEFENSE COUNSEL]: Not at this time, Your Honor.

RP at 138.

The critical issue at trial was whether Rickey Kitchens or Marcia Howard drove the Jeep at the time of the September 1, 2012 accident. The State called eyewitnesses Brenda Petersen, Gary Hillin, and Tiffany Stewart and Troopers Raymond Seaburg and Kyle Burgess to testify on this subject. Petersen testified "I watched them pull a male and a female out of the vehicle." RP at 148. At trial, Petersen could not remember who was pulled out of the Jeep first. Therefore, at the request of the State, Petersen read to the jury the statement she provided the police on the day of the accident:

The involved vehicle was in front of me and the attached trailer started to fishtail. Driver lost control and flipped. I watched another witness pull the driver out, which was the male. Female passenger was also pulled out from the driver's side, but after the male was taken out.

RP at 160. After reading her statement, Petersen testified at the questioning of the State:

Q, Thank you, ma'am. Now, do you remember the officer asking about the certainty of who was driving the vehicle?

A. Yes.

Q. Do you remember responding to the officer asking you whether you're 100 percent sure that the male was driving the car?

A. I do remember him asking that question.

Q. What was your response when the officer asked you that question?

A. Yes.

RP at 160.

At trial, Tiffany Stewart identified Rickey Kitchens as the vehicle's driver, testifying:

Q. You came to the conclusion he was the driver. How did you get there?

A. Because he came out of the driver's seat in that area. I don't feel there was much of a place for him to go anywhere other than that. So he came out of the driver's seat, even though the vehicle was upside down. So he was still in that area.

RP at 242-43.

On appeal, Rickey Kitchens challenges portions of the troopers' respective testimony as testimonial hearsay. Trooper Raymond Seaburg testified that he saw twenty to thirty people assisting Rickey Kitchens and Marcia Howard after the accident. Seaburg added: "I was contacted by several witnesses at the scene. They pointed out the two occupants that they knew of that were in the vehicle that had rolled over. I walked over, contacted a male and female, and then began asking them if they were okay and what had happened." RP at 180.

Trooper Seaburg then testified at trial:

Q. Through the investigation and the process of taking statements, were you able to determine-I'm sorry. Did you have any evidence that contradicted what you had learned thus far based on-

[DEFENSE COUNSEL]: Objection, calls for hearsay.

THE COURT: Overruled. He can answer that yes or no.

A. Yes.

Q. ([THE STATE]) What was your belief after conducting a further investigation after the interaction you did with the defendant and the female that were the occupants of the vehicle?

A. Through the investigation further I determined that the male was the driver.

Q. What did you do once you came to that conclusion?

A. At that point, I went back and spoke with him briefly. I told them my investigation concluded that you were the driver, and he was not in agreeance. He basically told me I had conflicting stories and that it was fucking bullshit.

Q. Were those his words, the salty language?

A. Yes.

RP at 183-84.

Trooper Seaburg testified to collecting statements from witnesses. Defense counsel again objected:

Q. Did the information that you collected support your belief about who was driving and what happened?

[DEFENSE COUNSEL]: Objection, calls for hearsay, Your Honor.

THE COURT: Overruled. He can answer that yes or no.

A. Yes.

RP at 189.

Trooper Kyle Burgess also testified that, through his investigation he concluded that Rickey Kitchens drove the Jeep leading to...