Nihat Aksezer, the 49-year-old former Lyft driver attacked as he drove two men and a boy the night of August 1, 2020 in Palm Coast, quietly lost his composure today as the prosecution replayed a video of the attack. The jury of six women and two men probably didn’t notice Aksezer’s reaction until they unglued their eyes off the television screens at the end of the clips.
Unlike most witnesses who lose it on the witness stand–crying, sobbing, clasping their head in their hands, sniffling from whatever violence, violation or offense they’re being made to endure again in sights and sounds–Aksezer, who is of Turkish descent, one of those regions where men simply don’t cry in public outside funerals, tried to be supremely composed in his loss of composure. An unassuming but proud man by nature–that much the jury could see the moment he started speaking this morning–he kept his arms crossed as he did for the majority of the hours he testified. He let the tears fall. But he didn’t make a sound. When the clip was over, anguish was written all over a face that had as if suddenly aged in that moment.
He would later say he had not watched that video since around the time of the assault because he didn’t want to relive it. It is a disturbing, unprovoked and inexplicable assault, at least as it appears on video, as Travis Smith, now 38, ripped through a filmy partition, grabbed Aksezer in a chokehold even as he was nearing the turn at Royal Palms Parkway and Belle Terre Parkway, and cause him to lose control of the car. Smith then told his friend Andrew Kastl, 36, and Kastl’s 7-year-old son to jump out, and jumped out himself, yelling at traffic outside as Aksezer yelled at drivers to call the cops.
It was a powerful moment in Smith’s trial and could have been the kind of turning point that would have sealed Smith’s fate with the jury but for what happened in his Aksezer’s cross-examination by the defense.
The defense–MaryCatherine Crock and Philip Bonamo of the Rice Law Firm–had been grabbing at straws, concocting theories about Aksezer by trying absurdly to make him look callous and indifferent to his customers. Swiftboat-style, they turned his precautionary measures in his Toyota–his wearing a mask, his putting up the covid-protecting partition–as indications that he didn’t care about his customers, because he left it up to them to wear a mask or not. Those aren’t the sort of lawyerly cheap shots juries fall for. They’re indirect ways of taking juries for chumps and manipulating them with polemic rather than evidence.
But then, unexpectely, the defense got its star witness: Aksezer himself. Either because he was rattled, because he was on the stand for too long, because the incident took place two years ago, or because he is simply mis-remembering things, he started saying things that simply were not true, and one thing in particular that could fatally undermine his own case: that Smith had asked him to pull over to check whatever was wrong with the car (the inside light had come on, an alert was beeping). Aksezer kept driving because he testified he didn’t think Royal Palms Parkway was a safe way to stop, because it was unlit (it’s not), it was dangerous (it can be: it is a narrow two-lane road with elevated curbs on each side and nowhere to stop and it was deserted (not a single home fronts the road).
When the defense attorney asked him about what he said about being asked to pull over on Royal Palms Parkway, he denied saying it. But he had. His exact words: “Yes, he asked me to stop.”
But Crock had him, at least on that count, even though Aksezer had also said that he felt the two in the back seat were “planning something’ against him, which is why he didn’t want to stop on Royal Palms. “I was just planning to stop in a safe place and get some help from some people,” he’d said, referring to Belle Terre Parkway. But there was no indication in the video that he’d been planning to stop the car, only make a turn, and he further contradicted himself later when he said he’d intended to take the trio home, being the kind of professional who completes his job.
The defense was less effective (and again overplayed its hand) when it sought to make him look like a liar when he claimed he’d jumped back in the car as it rolled, after the attack, to slam the brake with his own hands because he thought the child was still in the car. The boy had actually left, though Aksezer, himself a parent, was convincing when he said he was acting on instinct–and had at any rate opted to give Smith and his friend a ride to start with because of the young boy: he didn’t want them stranded at midnight in Flagler Beach, even after Smith had insulted him and his wife’s name as he was driving to pick him up.
Smith is on trial for burglary, battery and contributing to the delinquency of a minor. He faces up to 15 years in prison if convicted, and a minimum of 21 months, after turning down a plea that would have spared him the designation of a felon. He’d have had to serve six months in jail and six years of house arrest or probation. He rejected the deal because he doesn’t think he did anything wrong.
His defense is centered on a claim of self-defense: he attacked Aksezer because Aksezer was allegedly driving “recklessly,” as Crock told the jury in her opening arguments this morning, endangering Smith and his friends. “They asked to be let out of the car. They were not let out of the car,” Crock told the jury. “So again, they became concerned. They were in a situation which was out of their control. They weren’t allowed out of the car. The car continued to drive in a way that scared them, in a way which was reckless.” So Smith tore through the barrier, a covid-protecting film Aksezer had installed, and grabbed Aksezer “to hold him to get him to stop driving”–one of the most remarkable statements of the day, considering that but for some luck and Aksezer’s control of the pedals as the Toyota neared one of the city’s busier intersections, the attack could have ended in a spectacular crash.
It was one of several claims by the defense that didn’t match up with the video, which is the heart of the prosecution’s case. (If Travis Smith and his friend Andrew Kastl felt threatened or in danger, they both had cell phones, they could have called cops–they could have told Aksezer they were calling cops: they were nearing the heart of the city, they would have been located in a relatively short time.)
Assistant State Attorney Tara Libby, who is trying the case with Vanessa Brooks, played footage of the entirety of the ride from twin videos taken from Aksezer’s dash cam. One showed the interior of his Toyota 4Runner with himself at the wheel, Smith and Kastl in the back, and the 7-year-old boy between them. The other showed the front view of the car and the entire route taken, in sharp detail, nearly from the 7-Eleven in Flagler Beach, where Aksezer picked up the trio, to the attack and a segment past the attack in the car, as the bedlam and a second confrontation continued outside.
Libby had the two videos superimposed and synchronized on the big screens in the courtroom, so the jury could follow along with both views simultaneously. And there, hearing almost everything that was said inside the car, all the exchanges between Smith and Aksezer (Smith’s friend never spoke to the driver), the jury saw none of the things the defense claims. None of the things that even Aksezer appears to have misremembered, and spoke of.
The Flagler County Sheriff’s Office had previously released a shortened version of the interior video. But the video at trial shows it all. Smith and his two friends enter the car. Polite small talk is exchanged, even though moments earlier Aksezer says Smith had insulted him (“I’m a professional,” Aksezer said, speaking of frequently dealing with drunks down to having to clean up their puke and moving on). The ride begins uneventfully as the car crosses the Flagler Beach bridge, travels State Road 100, then north on Old Kings Road. Smith has asked if it’s OK to open a window. Sure, Aksezer told him, no problem. Then Smith is curious. Several times he’s seen running his hand on the thin partition, the way it’s sealed in all around. Then he starts asking questions of Aksezer–where he got the partition, he if installed it himself. Aksezer patiently answers.
At no point has Aksezer appeared to be speeding (his Google maps app would have yelled at him had it done so, he said in a deposition). At no point does he blow through a red light (they’re all green), or drive out of his lane, or drive recklessly. It’s an ordinary, solid driving job. Smith keeps asking his questions. Then, out of nowhere, as the car takes Royal Palms Parkway, Smith, his speech slurred, his sentences coagulating words and accusations rather than making sense, calls Aksezer “a liar.” Aksezer is uncomprehending. Smith keeps at it.
That’s when the interior light comes on, and Aksezer asks whether a door is open. An alarm is sounding. Aksezer looks anxious. If at any point Smith told him to pull over, it is entirely inaudible, and Aksezer did not react to such a statement, nor respond. Apparently, no audio analysis was conducted to prove that Smith made the statement (the defense doesn’t have to prove anything, but that’s often a legal conceit rather than reality when a man’s fate is on the line).
What is heard is Smith telling his friend “ready? ready?” repeatedly, suggesting that they’d planned something. Then comes the attack.
“This simple end of night fare which should have been from point A to point B ends up with Mr. Aksezer getting attacked from behind while he’s driving his vehicle, being beaten by the defendant,” Libby had told the jury.
Left to that video, the only piece of evidence spared the deprecation of memory, lawyerly manipulations, or the anxieties of the stand, the jury would have a very clear image of what happened that night. But the defense’s strategy is to draw the jury away from the video to a deconstruction of the invisible: as several deputies involved in that night’s investigation testified today, the defense tried to portray an incomplete job by deputies who investigated (the defense was again helped by Robert Finn, an 11-year veteran deputy and a state witness who nevertheless appeared out of his depth and unable to answer most questions or project a presence more commanding than an adolescent’s).
The defense’s strategy of deflection has scored a few successes: prejudices elicited by a Middle Eastern accent or any suggestions of racial animus is an elephant in the room the defense successfully motioned to keep out of all questions, even though Aksezer claims Smith called him a terrorist when he was allegedly attacking him outside the car by roadside, when Smith was also spitting on him and telling him he had covid. English isn’t Aksezer’s first language. He’s an American citizen (though the jury doesn’t know that) but he occasionally speaks broken English or uses syntax that provides literal translation from Turkish (“he swore my wife,” he said, when he meant to say that Smith had insulted his wife’s name) or trips up his answers. Libby wasn’t always keen to ensure he was getting his meanings across.
And there is the problematic matter of the charges themselves. After the jury was dismissed for the day, the defense made a convincing argument that the charge of contributing to the delinquency of a minor was bunk since neither Smith nor the boy’s father had shown any ill designs on the boy. Libby argued that Smith’s endangering the boy as he did, when he grabbed Aksezer, was enough. Perkins wasn’t convinced, and left the two sides to come up with case law proving their arguments by morning. But he was inclined to do a rare thing: grant a motion for a judgment of acquittal, at least on the delinquency charge.
That leaves the battery and burglary charges. Perkins denied the routine motion for a judgment of acquittal on both those counts before even hearing Libby’s arguments–an unusually dismissive step for this judge, but it was late, the defense’s motions were clearly pro forma, and the outcome was foregone before Crock’s arguments had started.
Still, the burglary charge can be problematic for the prosecution, even though Libby made a convincing case that the film partition was like the door to a cockpit on a plane: you don’t violate it (an analogy she took from Crock during jury selection). But the defense could also argue that when someone is invited to a party in the living room of a house then has a fight with the host in an upstairs bedroom, it’s not burglary. It’s still simple battery, depending on the severity of the act. “They didn’t break into a house. They took action in a scary situation,” Crock said.
The defense isn’t ready to concede even the battery charge: at the end of the day Tuesday, it let on to Circuit Judge Terence Perkins, who is presiding over the trial, that it was going to present a case of self-defense. It isn’t yet known whether Smith himself will testify. But since he was eager to speak to the press before trial to tell his side of the story, he may be eager to take the stand.
The prosecution was looking for a charge that fit the gravity of the crime, but there is no middle ground between battery (a misdemeanor) and aggravated battery (a second degree felony, like the burglary charge). But aggravated battery requires a showing of intentionally or knowingly causing great bodily harm, or using a deadly weapon in the commission of the crime. Aksezer was bruised, but there was no great bodily harm, nor even a recommendation by paramedics that he gets cleared at the hospital. Smith did not use a weapon. The charge likely more precisely fitting the crime but for its shocking nature would have been aggravated assault–a third degree felony. But the prosecution likely didn’t want to go that low.
The jury will not know–or at least will not be told–that battery is a simple misdemeanor and burglary a second degree felony. It will be asked to find Smith either guilty or not guilty, and it will have the option to convict on one and not the other. The jury instructions, to be completed Wednesday, may even conptain another lesser charge than burglary. Whatever the case may be, this one is headed for closing arguments Wednesday, and a likely jury decision in the afternoon.