Toward the end of a laborious jury selection that had stretched over two days, Regina Nunnally, the defense attorney, this morning asked potential jurors in a statutory rape trial if they’d heard of Rosewood. Four hands went up among the 30-odd remaining jurors, and two of those recalled either the history or the movie about the massacre and obliteration of the all-black Florida town by a white lynch mob in 1923. It had been triggered by a white woman’s claim–a lie–that a black man had assaulted her.
Nunnally then asked the jurors if they thought that sort of prejudice still existed–that someone could still lie like that. Jurors said yes.
The six jurors and one alternate who were finally picked by mid-morning today found out why Nunnally had gone down that road: her client, Tonda Royal is black, and 53. His accuser is white. He is accused of having sex with the accuser, who was 16 at the time. She is 17 now.
But jurors also likely realized that the Rosewood example was far out of proportion, if not almost irrelevant, to the situation at hand: not because no one was killed, no one was lynched, nothing was destroyed, but because there was no DNA testing in 1923. There is in this case. And though Nunnally is claiming that the alleged victim in the case is lying, Nunnally is not challenging the results of the DNA test that found her client’s DNA, from sperm, inside the girl’s vagina.
If there is one certainty in court nearer to the truth than eyewitness accounts, fingerprinting and expert testimony, it’s DNA evidence. So from the start–from Nunnally’s opening argument–the defense was building a case on a contradiction: it’s not denying that sex took place. But it’s claiming that the girl is lying about the circumstances.
That’s not relevant in the eyes of Florida law: an older man illegally having sex with a minor is a serious felony, In this case, a 53-year-old man having sex, even consensual sex, with a minor between 16 and 17, commits a second-degree felony. The charge is unlawful sex with a minor. The state had considered charging Royal with rape, a first-degree felony, but, as Nunnally told the judge outside the jury’s hearing, that did not take place. The charge is still grave: it can result in up to 15 years in prison.
In a letter to the court, Royal contested the whole proceedings in a motion to dismiss, saying the original charging affidavit had charged him with rape and that the prosecution “has not provided defense a reason why it did not charge me with rape and why it charged me with unlawful sexual activity with a minor.” But the difference comes down to the manner of the act: if the act had been forcible, the charge would have reflected it. The girl says it was not forcible. Had she been younger than 15, it would have been a first-degree felony. Being 16 at the time, it’s statutory rape.
Assistant State Attorney Melissa Clark’s opening arguments were simpler than Nunally’s. Royal was living in a camper on someone else’s property in Daytona North, also known as Mondex. For a few months in the fall of 2018, he had befriended a neighboring 16-year-old girl and her family. He drove the girl to the store, gave her money when she was in need, took her and her friends to the park.
On Dec. 5, 2018, he drove with the girl to the park, they filled out water jugs, as they had before, then they returned to his camper, as they had not done so before. He invited her in, supposedly to show her “a surprise”–the rooster he’d killed, after the rooster had previously attacked the girl. Once inside, the girl allegedly got another surprise. He told the girl to sit on a bunk bed. He took off all his clothes. He then climbed up to the girl and undressed her. She did not resist, but described being frozen by the act. He then proceeded to have sex with her, without protection.
“Did you tell him no at all?” the prosecutor asked her.
“No,” the girl said in a faint voice from the stand this morning.
“What did you do?”
“I kind of froze up and started crying.”
What did he say?
“He asked why I was crying. I said I don’t know.”
When Royal was done, he got up and down from the bunk and went to the bathroom to clean himself up.
The girl climbed down and got dressed. “I just stood there, thinking what I should do,” she said.
He took her home. It was three days before the girl told her mother. The girl’s mother called the cops and a sexual assault exam was immediately carried out, collecting swabs and DNA evidence.
In the interim, according to the defense attorney, the girl had had sex with her boyfriend–a detail the girl almost blurted out before Clark objected. In such trials, the alleged victim’s “unchaste” history is irrelevant. What matters is the alleged crime, and only that: Did Royal have sex with the girl or not?
Nunnally’s argument to the jury, which informed her questions to the girl when she was on the stand, is that a whole lot more was going on. She disclosed that the girl smoked cigarettes and pot and drank alcohol (which is irrelevant to the case at hand, though attorneys often like to see how much they can smear the accuser and get away with). The girl had already disclosed that she is a high school drop-out, though she’s working on her GED. Nunnally sought to paint her as a liar because of her “inconsistencies,” though the inconsistencies she pointed to seemed picayune: the girl didn’t remember what time, afternoon or morning, the alleged sex took place, she would say no one was at her home at one point, though many people lived there, she did not tell her mother immediately of the sex–not an uncommon response from people who feel they have been violated. And she told the jury what the girl had initially said: ““Her statement was not oh, Mr Royal committed unlawful sexual activity with a minor, her allegation is that Mr. Royal raped her.”
Her story, Nunnally said, “doesn’t make sense, it doesn’t make no logical sense whatsoever.” Swabs of Royal’s trailer produced no evidence of the girl being there.
And Nunnally introduced a twist: Duane Weeks Jr., the son of former Elections Supervisor Kimberle Weeks. The motive behind the girl’s alleged lies was that Weeks, who has a history of run-ins with the law. Part of Nunnally’s defense is that Royal and Weeks had a running feud, and Weeks put up the girl to making up the story about the sex to get Royal in trouble. Weeks is currently at the county jail on a second-degree felony charge of written threats to kill, threats allegedly written to his ex-girlfriend, a woman who also figures in Nunnally’s narrative, because the girl is a friend of the victim’s family, and Weeks frequented the victim’s family’s household.
“I just don’t see how this is relevant,” Clark told the judge after the jury had been ushered out. The judge understood Nunnally’s point about Weeks. But Weeks is not a witness, and the judge was having trouble understanding how Nunnally would establish the Weeks connection through the witnesses she did have at hand. Nunnally explained that Royal himself, if not the alleged victim, would do so.
Clark was almost exasperated: “You literally have the defendant’s semen in the victim’s vagina,” Clark said, all but ridiculing the whole narrative about Weeks.
It was then that Circuit Court Judge Terence Perkins asked Nunnally about the DNA evidence–if she intended to challenge it or have expert witnesses attempt to refute it. Nunnally said she did not.
That left the contradiction at the heart of the defense’s case glaring, and the various narratives Nunnally was building–about Weeks, about the girl smoking or drinking, about the girl’s or the family’s friendship with Royal, or his seemingly legendary friendliness–as so many sideshows that don’t refuse the central charge: unlawful sex.
The trial is expected to take two days, with Royal himself taking the stand, likely Wednesday.