L’Darius Smith is a 25-year-old Bunnell resident who in 2017 was on trial for molesting two of his step-sisters years earlier, when he was 15 and they were 8 and 9. The case depended entirely on the words of the alleged victims and of Smith. He was acquitted on the more serious felony charges by the end of a two-day trial, and found guilty on a minor misdemeanor charge of “unnatural and lascivious acts”: the jury had apparently concluded that he had enticed his sisters to masturbate him, but did not consider that molestation of the girls.
The former football player at Flagler Palm Coast High School moved to Georgia, then tried to move back to Flagler last year. On June 21, he’s scheduled to go back on trial on different charges: burglary, theft, aggravated assault with a deadly weapon and battery.
Today, he was in court as his attorney, Assistant Public Defender Regina Nunnally, was seeking to have the aggravated battery charge dismissed. She argued it was a case of “stand your ground,” the self-defense doctrine that, if successfully argued, would justify Smith’s use of force. He had swung a bat against two men who he said made him fearful for his girlfriend’s safety. He was charged with aggravated battery, a third-degree felony.
Stand your ground defenses can be argued at trial. But they are are typically argued in motions before trial in what’s called pre-trial immunity hearings. If the motion is granted, the defendant is found immune from prosecution and the charge in the incident is moot. As Circuit Judge Terence Perkins put it today, “We can end the process here when the necessary showing is made.”
But it wasn’t. Perkins’s decision did not go Smith’s way.
The hearing proved to be a rehearsal of many of the central arguments that will resurface at trial, but to six pairs of fresh eyes. A jury could see things differently. The hearing was also a rare window into the application of the stand your ground doctrine in Flagler.
Four years ago, the Florida Legislature significantly changed the state’s pioneering stand your ground law (Florida was first in the nation with such a law in 2005), shifting the burden of proof to the prosecution. Rather than the defense having to show that the self-defense doctrine applies–that the defendant used force out of fear for self or someone else–prosecutors have had to prove that force was used illegally by the defendant. Theoretically, the defense today did not have to present any evidence other than its stand your ground claim (no small burden in itself), leaving it to the prosecution to put on a case to prove Smith’s aggression unlawful.
For the large majority of the three-hour hearing, it was Nunnally who was seeking to prove that her client had acted lawfully–not Assistant State Attorney Tara Libby who was seeking to prove that Smith acted illegally. Libby was silent at least 80 percent of the time. And it was to Nunnally that the judge, after two and a half hours of testimonies by Smith and the two alleged victims, asked “what evidence is before the court at this hearing that would show that a reasonable person, including Mr. Smith faced with these circumstances, would feel exposed to imminent death or great bodily harm.” It would then be the prosecution’s burden to overcome the defense’s claim.
Nunnally had tried to show that much when she questioned the two alleged victims in the case. “It sounds like, to me, you were not afraid of him,” Nunnally told one of the two as he was on the stand. She grilled him about his state of mind, trying to establish that he was not in fear for his life.
Whoever’s burden of proof it was, there are two stand your ground standards: One that deals with deadly force, one that doesn’t. The judge evaluated the case under both standards, though himself considered the case a deadly force one, he said. The question to be answered, he said, was: “Would an ordinary, reasonable person believe that deadly force is necessary under these circumstances to prevent imminent death or great bodily harm?” For example, if someone had pulled a gun or a knife, would Smith have been justified to stand his ground with a bat. In this case, Perkins said, Smith himself testified that there’d been no threats before he picked up the bat–neither of the two men drew a weapon–and that Smith had pulled the bat to avoid fighting. “There was no evidence that would support the use of force,” Perkins said, even under the non-deadly force standard.
“Based on all of that, I find that the defendant has not established a prima facie claim of self-defense through the evidence in the case,” the judge ruled.
To be sure, Smith wasn’t found guilty. Only his stand-your-ground motion was denied. So he’ll be going ahead with trial in less than two weeks. His fate will again be in the hands of a jury.
The burglary is an entirely separate incident from the stand-your-ground case, and was not in contention today, suggesting that had Smith been successful in the stand-your-ground hearing, he and his attorney may have pleaded out the other case to avoid a trial. Smith is again living in Georgia.
The incident behind the stand-your-ground case took place on January 21, 2020, at the McDonald’s in the Target shopping center. McDonald’s hasn’t been the happiest place for Smith: In 2016 he was the subject of a trespass warning at the McDonald’s on the road near the I-95 interchange, where his girlfriend worked. In April 2020 he was arrested for violating the warning. A sheriff’s report said he was “causing a commotion” there in an incident involving his girlfriend and another person.
On Jan. 21, he was with his pregnant girlfriend at the Target McDonald’s, getting water from inside. His girlfriend went to the rest room. As he got water, two men noticed him wearing a Batman jacket. One of the men, who’s now 64, said in court today that his own nickname was Batman. He’d liked the jacket. He complimented Smith for it and wished he had one like it. Smith apparently misunderstood and took the compliment for something more belligerent.
“The guy came over to us and said what are you pointing at, MF?” one of the two alleged victims, who are brothers, said in court today. So Batman said he was just complimenting him on his jacket. “This guy just didn’t want no part of it. He just started rambling on, ‘he is a trained killer. We didn’t want to mess with him’ and all this stuff,” Batman’s brother said.
But Smith walked out of the restaurant with his waters. At that point his girlfriend still was in the rest room, video evidence shows. Once outside, Smith noticed the men pointing at him, he said. Unbeknownst to him, he had parked his truck next to theirs. So he took pictures of them (they told sheriff’s deputies he was taking video of them). They stepped outside–first Batman did, then his brother rushed out, not wanting to leave his brother alone. A confrontation ensued, with Smith going to his truck, retrieving a baseball bat, and swinging it at Batman, but not hitting him.
In court today Nunnally argued and Smith testified that the men had been aggressive toward him, and that he was only trying to stave them off. He said he saw one of the men rushing him and using “the N word.” (Smith is Black, the two men are white.) Smith thought the man was attacking his girlfriend “or maybe they had some sort of altercation.” Though he had a broken hand, he grabbed the baseball bat to “scare them off.”
“I’ve got to make sure she’s OK, that’s the first thing that came to my mind,” Smith testified. He said the confrontation was, from his end anyway, “about trying to figure out the situation,” while the other man said–according to Smith–“What are you going to do about it? I’ll fuck you up.” As he described the incident in court this afternoon, he gestured to show that he cocked the bat as a “show of force,” but didn’t swing it. One of the men kept cursing and using profanities, Smith said, then “leaning forward” in an aggressive way, taunting him. “It was two against one,” Nunnally said.
Batman testified in person today that Smith was “off the wall” during the incident and “really irate.” (His brother testified by zoom.) Batman said he told Smith all he was doing was complement his jacket, but Smith stayed irate, telling him how he could “f you up,” and that he had been in the military. Smith shook his head at the defendant’s table when the men referred to his alleged service in the military, as if to say he’d never claimed such things. “He swung the bat at me like he was going to hit me in the head, probably came within two inches of me and stopped,” Batman said. “He was so off the wall.”
Smith for his part described it as the other way around: they were “coming at me for no effing reason,” he told Nunnally, even as he explained to them “multiple times” that he “wasn’t trying to hurt them,” as he kept trying to figure out what he’d done wrong to draw their attention or their racial insults. It wouldn’t be the first time that a Black man’s actions were escalated in others’ eyes as threats in a country where a 14 year old was once lynched for whistling. These men, Smith said, were themselves using vile language.
“The victim was saying the N word and what the F are you doing. So there were no threats made?” Assistant State Attorney Tara Libby asked Smith. Smith said no–an odd response, considering the standard interpretation of the N word as a fighting word, as Nunnally would later point out.
“What reasonable fear did you have to defend yourself if there were no threats made?” the prosecutor asked him.
Smith said he didn’t know what the situation was, “whether or not the mother of my child was safe or not.”
Nunnally spent much longer questioning Batman about his actions during the confrontation that morning (the confrontation took place before noon, the two brothers had gone to McDonald’s for breakfast, Smith was working on an application at Waste Pro). Nunnally tried through various approaches to show that the two were not being threatened and themselves never seemed to be in fear to the point of stepping back from the situation. She showed them as instigators who’d walked out of the restaurant, going after Smith, who’d merely taken pictures of them. Again and again she showed video clips to point out that Batman and his brother were standing near Smith, not walking away, not stepping back or, until a certain point, not even calling police. Once Batman called police, he was “still standing there, next to Mr. Smith, you and your brother, right?” Nunnally asked him.
“Yes, ma’a,” Batman said. She then pointed out that Batman stood behind Smith’s truck even after Smith told him he wanted to back up. To Nunnally, Smith was, in Batman’s word, “irate” but nothing more–certainly nothing more threatening, which is why, she told Batman, he never felt compelled to step away.
Perkins was not convinced.
“I find from all of the evidence that Mr. Smith was clearly the aggressor in the parking lot,” the judge said in his ruling. “I have to look very carefully to detect that he actually didn’t get [Batman] with the bat. It looks almost like he did.” He denied Nunnally’s motion.