State v. Kitko

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

FRANK G. KITKO, JR., Appellant.

No. 1 CA-CR 18-0708
FILED 12-10-2019

Appeal from the Superior Court in Maricopa County
No. CR2015-002647-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Michael P. Denea PLC, Phoenix
By Michael P. Denea, Katia Mehu
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

J O H N S E N, Judge:

¶1 Frank G. Kitko, Jr., appeals his two convictions of aggravated
assault and the resulting sentences. He argues the superior court erred by
denying his motion to strike the entire jury panel during voir dire. For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Kitko's SUV suddenly accelerated as he pulled it into a
parking space outside a restaurant, and he ran over two pedestrians who
sustained serious physical injuries.1 Kitko exited the SUV wearing a knee-
high "medical boot" on his right leg.2

¶3 Police arrived and interviewed Kitko, who explained his right
foot "got stuck on the accelerator" after he attempted to stop, causing him
to briefly falter as he reached for the brake pedal. He also admitted he had
consumed alcohol before the collision, he was wearing a fentanyl patch to
alleviate pain, and he had taken anti-depressant medication earlier in the
day. Kitko's speech was slurred, his eyes were bloodshot, his breath
smelled of alcohol and an officer had to repeatedly command him not to
approach the victims. An officer administered a horizontal-gaze-
nystagmus test at the scene and determined Kitko exhibited all six signs of
impairment. Testing revealed Kitko's blood-alcohol percentage was
between .11 and .12 two hours after the collision. At the scene, Kitko told a

1 Upon review, we view the facts in the light most favorable to
sustaining the jury's verdicts and resolve all inferences against Kitko. State
v. Gurrola, 219 Ariz. 438, 439, ¶ 2, n.1 (App. 2008).

2 A physical therapist who happened to see the collision testified the
boot was a "controlled ankle motion boot . . . [that] lock[s] your ankle . . . in
a certain way. . . . It is not easy to drive in . . . [b]ecause, as the name
suggests, you can't control your ankle motion."

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Decision of the Court

witness he should not have been driving, an admission he later repeated to
police.

¶4 Near the end of his police interview at the scene, Kitko
asserted that as he was waiting for police to arrive, someone he could not
identify brought him some beers, and he drank "a beer-and-a-half." A
witness who was with Kitko the entire time after the incident testified Kitko
refused water after the incident and requested vodka, but was not given
any beer or alcohol.

¶5 The State charged Kitko with two counts of aggravated
assault, alleging he recklessly injured the victims using a dangerous
instrument. The jury found him guilty, and Kitko timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-
120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)(1) (2019).3

DISCUSSION

¶6 During jury selection, several members of the venire told the
court they or someone they knew had been prescribed a medical boot and
were instructed not to drive while wearing it. Some added they believed
Kitko was guilty because he was wearing the boot at the time of the
accident. Kitko moved to strike the entire panel, arguing their remarks
tainted the remaining venire members. The court denied the motion. In
the end, none of the potential jurors Kitko cited as potentially biased about
medical boots was seated on the jury.

¶7 Kitko argues the superior court erred by denying his motion
to strike the panel. Specifically, Kitko contends the comments made during
voir dire "created a social dynamic where it is reasonable to see that the trial
jurors were exposed to information that affected their impartiality."

¶8 We review the court's denial of Kitko's motion for an abuse of
discretion. State v. Glassel, 211 Ariz. 33, 45, ¶ 36 (2005). Although Kitko
contended at oral argument that we must review the denial of his motion
de novo because his argument is grounded in due process, in his briefs he
conceded that the proper standard of review is abuse of discretion. The
superior court has considerable discretion in evaluating claims that remarks
tainted the panel because it is in the "best position to assess their impact on
the jurors." State v. Doerr, 193 Ariz. 56, 62, ¶ 23 (1998). Kitko has the burden

3 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.

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of showing the jury could not be fair and impartial. State v. Davis, 137 Ariz.
551, 558 (App. 1983). In reviewing Kitko's argument, we will not presume
the jury panel was tainted by the information some members shared during
voir dire. Doerr, 193 Ariz. at 61-62, ¶ 18. Such prejudice must be apparent
from the record. See id. at 61, ¶ 18; State v. Tison, 129 Ariz. 526, 535 (1981)
("Unless there are objective indications of jurors' prejudice, we will not
presume its existence.").

¶9 The superior court did not abuse its discretion. Nothing in
the record shows that the remarks by some panel members during voir dire
influenced the jury's verdict. Kitko cites no specific evidence that any juror
was tainted by the remarks and, instead, relies upon speculation, which is
insufficient to show that he was denied a fair and impartial jury. See Doerr,
193 Ariz. at 61-62, ¶ 18.

¶10 Indeed, the record rebuts any assertion that the jury was
tainted. The court repeatedly instructed the prospective jurors – and the
jury, after selection was complete – that Kitko was presumed innocent
unless the State proved otherwise beyond a reasonable doubt. Indeed,
when the boot issue arose during voir dire, the court meticulously illustrated
the presumption of innocence by informally quizzing the venire panel
about their views of the matter "[a]t this stage of the game." After asking
for a show of hands, the court explained that

the truth of the matter is [Kitko] is not guilty because we have
not heard any evidence. The presumption of innocence
means that, unless and until a jury is formally impaneled,
they have heard all of the evidence, they've received
instructions of the law and what constitutes an offense, and
they have actually gone back to my jury room . . . and actually
deliberated and come to a unanimous conclusion of guilt, that
the defendant remains presumed innocent. That is the
presumption of innocence. Again, that is the rule of the road
that protects all of our freedoms, make[s] us the freest country
in the world.

Further, both the prosecutor and defense counsel reminded the jury during
closing arguments that Kitko was presumed innocent and the State had the
burden to prove his guilt beyond a reasonable doubt.

¶11 Finally, and more broadly, Kitko's argument presumes the
jury convicted him simply because it found he was reckless in driving while

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wearing the boot. As the State argued, however, the jury could have found
Kitko guilty based solely upon his impaired driving.

¶12 On this record, Kitko fails to meet his burden to show that the
potential jurors' remarks resulted in a biased jury and that the superior
court abused its discretion in denying his motion to strike the panel.

CONCLUSION

¶13 For the reasons stated above, we affirm Kitko's convictions
and the resulting sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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