Late the night of August 1, 2020, Travis Smith, 38, his friend Andrew Kastl, 36, and Kastle’s 7-year-old child were in Flagler Beach when they requested a Lyft ride back to Smith’s R-Section house in Palm Coast. Lyft driver Nihat Aksezer, 49, picked them up.
Dashcam footage that starts when the car is already in Palm Coast shows Smith getting increasingly inquisitive, then belligerent, toward Aksezer, questioning him about a plastic partition Aksezer had installed as a Covid protection: it was the early days of the pandemic. Smith calls Aksezer a liar, then is suddenly seen ripping the partition down and grabbing Aksezer in a chokehold even as he was driving, before Smith and Kastl jump out.
Smith would later tell cops that Aksezer–an IT manager driving for Lyft and Uber for lack of work in Palm Coast–had been driving recklessly and making him and his friend fear for their life, so he decided to stop him. A Flagler County Sheriff’s deputy called that account “dishonest,” and video footage of the ride shows no indication that the riders were in fear, or that they’d asked Aksezer to drive carefully.
Smith was initially charged with child abuse and battery. The State Attorney’s Office later filed a charge of burglary, a second degree felony, downgraded the felony child abuse charge to a misdemeanor count of contributing to the delinquency of a child, and a count of battery, also a misdemeanor. His total exposure, if convicted, is 17 years in prison. The minimum he faces if convicted is 21 months in prison, absent a deal with the prosecution.
Assistant State Attorney Tara Libby made that offer in January: 180 days in jail, two years of house arrest (with permission to leave the house for work and emergencies), four years on probation, and a withholding of adjudication, meaning that Smith would not be branded a felon, assuming he completed his terms cleanly. Smith turned the deal down.
Circuit Judge Terence Perkins appeared somewhat perplexed this morning, before a pool of jurors was summoned to the courtroom for the start of jury selection in Smith’s trial. Smith, who has been out on bond since the incident, sat–in suit and tie–flanked by his two attorneys, the Rose Law Firm’s Philip Bonamo and Mary Catherine Crock. “There are certain cases that we have to go to trial. They just do,” Perkins said. ” So the question is, why is it that we’re going to trial in this case at this stage?” Perkins reeled off the penalties Smith faces if convicted. “So my universe, the world I get to work in, is 21 months to 17 years. That’s where I have to work. And then of course, I have some discretion with regard to that.” He explained the unpredictability of juries and what the attorneys on the two sides will try to do if Smith is convicted, either to push for a greater or a lesser penalty.
“So what that means is that this is the time that’s ripe for compromise And that’s really what it is. A clean resolution is nothing more than a compromise. It’s not your best day, but it’s not the worst day, and it’s a compromise between the two,” Perkins said. Once the jury walks in, the offers are gone, the judge said. So he asked Smith his “thought process on why this case isn’t resolving.”
“I just don’t choose to accept any of it,” Smith said.
Perkins clarified yet again what Smith’s options were. “So as long as you understand the consequences, you’re comfortable with the decision you’re making, I’m going to quit asking questions.”
The incident took place on August 2, 2020. That day, Aksezer had actually given the trio two rides. Late that morning or around noon he’d dropped them off in Flagler Beach in what he said in a deposition had been an uneventful ride. Trouble started when he got called in for the night ride sometime near midnight. When he reached the spot at a gas station on A1A where Smith had called for a ride, he couldn’t find Smith. He called him.
Smith started insulting Aksezer’s wife, according to statements Aksezer gave Smith’s attorney in a deposition. “I don’t understand why he did this,” Aksezer said. “At that moment, I think that I need to leave them. Okay? I need to decline that ride. That tell me something like that from my inside as a — it was a feeling.” (Aksezer, a native of Istanbul, is a naturalized American only since early 2020, is not entirely fluent in his adopted language. He’s owned a house with his wife in Palm Coast’s W Section since 2017.)
“But later, I remembered they have a child, they have a little one, okay? They have a little child,” he continued. “So it was midnight, and it was hard to find Lyft drivers these days because of the virus. So I swear to God I accept them for the child because I don’t want to leave them there with that child after midnight. So I accept.” (Aksezer’s daughter was 14 at the time. He cited her as a reason why he rides safely, countering Smith’s claims that he was riding erratically.)
Video of the early part of the ride in the Toyota 4Runner has not been produced. Smith says there were arguments at the beginning. It’s not clear if he was referring to the exchange about Aksezer’s wife, or something subsequent to that. But by the time the available video begins, nothing appears out of the ordinary until Smith questions Aksezer about the plastic partition between the front seats and the back. Until then, there’d been no hint, no suggestion, no mention of Aksezer’s erratic driving–no mention of his driving at all.
Smith is seen running his hand over the partition, then leans in: “Hey, dude, I really like your, like, how well you sealed up the roof of your car, dude, how did you do that?” Aksezer tells him he bought the material on eBay. “You did that yourself?” Aksezer tells him he did. Smith then asks again about whether he installed the material himself, compares it to other set-ups he says he’s seen in other cars, then Smith tells him, in what seems out of the blue, that Aksezer is a liar. Somehow a light comes on inside. Aksezer is surprised. He’s worried that someone has opened a door. Smith covers the light and speaks inaudibly with Kastl, as the GPS device sounds the approach to Belle Terre Parkway.
“Ready?” Smith is then heard telling Kastl.
“What’s happening, man?” Aksezer asks. “Huh?
Smith says something about the stoplight, asks again, “Ready?” and as the car slows as it approaches the intersection, Smith suddenly rips the partition and attacks Aksezer by grabbing him in a chokehold. The child yells. His father yells at him, “get out, get out, get out!” as Smith holds on to Aksezer before springing out of the car himself, Aksezer chasing after him. The car kept rolling. Aksezer threw himself back in and stopped it, then appeared to go after Smith. The rest is not visible on the video, which the Sheriff’s Office released on YouTube, then took down.
A different camera pointed outward, toward the road. Smith sent a clip to FlaglerLive last week, saying he’d attempted to get the video for two years and had just received it, accusing the prosecution: “They hid this from everyone.” He wrote that the incident “had nothing to do with the barrier, covid or being drunk. The driver wasn’t letting us out of his car and we wanted to jump out at the red light. But he was doing 35 mph attempting to run the red light, with a door open and a 7 yr old child in the car. The police lied and I have proof.” He says the video shows “how he goes over into the left turn lane so he can make that right turn fast” from Royal Palms Parkway to Belle Terre Parkway.
Several people called 911 as the incident was taking place in a high-traffic area of Belle Terre Parkway and Royal Palms Parkway. By the time deputies arrived, Smith was on top of Aksezer. He initially refused to get off him until a deputy pointed a Taser at him. Aksezer claims when that altercation was happening outside the car–none of it caught on video–Smith called him “a fucking terrorist” and said “I will kill that terrorist” (not an infrequent slur against people of Mideastern tints or accents since 9/11). “And everybody was shocked because there was a child there with them,” Aksezer said in his deposition. “And when you have a child, it’s hard to explain your situation because they were really thinking that I did something to them.”
Aksezer told deputies Smith also spat on him purposefully to give him the covid virus, spittle that deputies says paramedics wiped from his face–and that caused Aksezer to lose his active status with Lyft when he reported the incident, since he could be covid-positive (he tested negative several days later).
In pre-trial hearings the defense made a series motions Perkins denied, among them a motion to dismiss the burglary charge, to compel the submission of Lyft driving records regarding the electronics in the case, and most notably, to keep the prosecution from showing that key dash-cam footage of the rising belligerence and chokehold with audio–the central piece of evidence in the case. The defense could not prevent the video from being introduced. It was seeking to suppress the audio portion, a motion that in itself reveals some of the defense’s obvious vulnerabilities (a heavily intoxicated Smith does not come off well, insulting the driver) and points to ways it may attempt to counter them.
For example the defense is almost certain to point to Smith’s sense of responsibility in choosing to use a rideshare service, though that conscientiousness would rest equally with Kastl, who had a child. Smith does not come off as conscientious whether in his exchanges with cops later or in his refusal to allow Kastl to go back to his (Smith’s) home, where he was a guest, as Smith was hauled off to jail. A deputy took Kastl and his child to a motel.
The defense had a strong case to make when asking for the suppression of the audio. Under Florida law, both parties in an audio recording are required to give consent if there is to be a recording. Aksezer videotaped his rides, with audio, without seeking consent. The defense argued that riders have a reasonable expectation of privacy in a rideshare vehicle, so the recording was illegal–meaning it could not be introduced. The defense made the same argument regarding a phone call between Smith and Aksezer. (The state’s and court papers repeatedly but inaccurately refer to Aksezer, his legal name according to property and voting records, as Akseer.)
Perkins denied the motion, citing precedent that there is no expectation of privacy in certain workplaces, as the Lyft car was. Perkins said the camera was in a conspicuous place, clearly indicating to riders that they were being recorded, the way surveillance cameras in innumerable public and often private spaces whir without explicit consent. Aksezer’s device not only took video. It reproduced a real-time video image of the passenger, “like looking in a mirror,” as Aksezer described it in a hearing. “The camera was installed to protect the driver and his passengers and was activated for every ride,” the judge found.
(It was a similar case that resulted in the conviction of former Supervisor of Elections Kim Weeks, who had surreptitiously recorded phone calls with public officials. Weeks’s attorneys had argued as well that certain workplaces are not private. The difference: Weeks never told those she spoke with that she was recording, and in one case, when she did, she was told by the person at the other end–the secretary of state at the time–that he did not want to be recorded.)
But the defense didn’t lose all its motions to suppress: it succeeded in suppressing any mention of racial motivations on Smith’s part. “The State has failed to produce any sufficient evidence to indicate that the allegations against Mr. Smith were racially or otherwise motivated, in any way,” the defense argued. “The State has also failed to produce any evidence indicating any intoxication relating to any of the witnesses or Mr. Smith, failed to provide any witnesses, including law enforcement, who would have personal knowledge or expertise as to such.”
The part about intoxication is a stretch: deputies routinely tap into their experience to determine whether a person is drunk or not. Deputies did not make an issue of Smith’s drunkenness because he is an adult and was not driving, but they did determine that he was drunk: the jury, more seasoned with middle aged and retired individuals than not, will divorce his behavior from his intoxication only with a stretch of its own. Perkins, for his part, only granted the defense’s motion in part.
In depositions, the defense appeared to angle for ways to impeach Aksezer by focusing–as the trial may–on what was recorded, when, and why other video clips were no longer available. Aksezer explained it clearly: his surveillance video loops over and over after every so many hours, so footage from the morning ride was already erased by new footage by the time of the evening ride. But it was Aksezer who downloaded the footage for sheriff’s deputies, and Aksezer who delineated the beginning of the footage–not in Flagler Beach, but around the time when he was veering from Old Kings Road onto Town center Boulevard, then to Royal Palms Parkway. (He says he was following the speed limit otherwise his GPS would warn him, and there was no such warning in the audible version of the recording.)
Even today, after a jury of six women and two men was selected (including two alternates) and dismissed until tomorrow, the defense appeared to be angling for various ways to make Aksezer look like a shifty character–legally speaking, to impeach his veracity–by suggesting that he had intentionally deleted video footage. Libby, the prosecutor, said that line of questioning should not be allowed, nor the sense that there was anything amiss in what videos were produced. The judge agreed. The defense could certainly inquire about what videos were taken, what had at any point been available then erased, but “you don’t you don’t get to imply that something exists that you know, doesn’t. So there is a good faith standard from that perspective,” Perkins said. “Fair comment is one thing. Misleading the jury is another.”
Opening arguments begin at 9 a.m. Tuesday in Courtroom 401 before Perkins.