Benjamin Allen, the 18-year-old Palm Coast resident accused of first-degree murder in the shooting death of 17-year-old Elijah Rizvan 15 months ago in the W-Section, rejected a settlement offer from the prosecution today and will head for trial likely the week of Jan. 11 before a jury of 12. He faces life in prison if convicted.
He rejected an offer of 30 years in prison, reviewable after 25, in essence giving him a way to be out of prison by age 42, since he’s already served more than a year.
Allen’s case is one of three high-profile trials Circuit Judge Terence Perkins has been struggling for months to get on the docket to be tried. The judge in summer described himself as “embarrassed” by the delays, though he attributed them to the limitations imposed by the virus on trying complicated cases with larger juries and numerous witnesses.
The other two cases are those of Nathaniel Shimmel, who faces a first-degree murder charge in the stabbing death of his mother, Michelle Shimmel, in front of their home in Palm Coast more than three years ago, and that of Tammy Almond, who faces a manslaughter charge in the shooting death of her boyfriend in Bunnell in June 2018.
Today, there was some clarity in all three cases. Shimmel’s case is set for trial next week. Allen’s is set for trial in January. Almond agreed to a plea, eliminating the need for trial. Her sentencing is scheduled for next month.
Just because the other two cases have been set for trial doesn’t mean that pleas are entirely off the table, however, or that the trials will actually take place as scheduled, given the difficulty of gathering as many prospective jurors as necessary during the covid emergency.
Assistant State Attorney Jason Lewis wanted to make sure the offer to Allen was placed on the record today. That’s when Allen and his attorney made clear they would not accept one.
“There was a plea offer made, I don’t know if we heard back from the defense,” Lewis told Perkins by Zoom in a hearing this afternoon. “But it was 30 years in the department of corrections, we were waving the 40-year minimum mandatory, but we were going to agree that he got a review after 25 years. I just wanted to make sure defense has discussed that with their client.”
“I have,” Gerald Bettman, who represents Allen, said.
“He’s not accepting it?” Lewis asked.
“No, we have not. We will not,” Bettman said.
“I just want to make sure he’s on the record so later on if it comes back and her gets life in prison, that the defendant understands that and acknowledges it,” Lewis said. He asked to have Allen himself acknowledge it.
Allen appeared by zoom from the Flagler County jail, alongside other inmates with court appearances scheduled in the same hearing. He approached the camera. The judge asked him if he was aware of the offer. Allen, looking significantly older and self-assured than in his first appearances shortly after the shooting, when he looked more doe-eyed and as if stunned, didn’t speak. He just nodded yes. The judge asked him if he’d had a chance to talk with his attorney, and if he was actually rejecting the offer. Allen again nodded. The judge asked for him to be unmuted. He wasn’t muted: Allen was just not speaking up. The judge repeated his questions: “You did hear all about it?”
“Yes, sir,” Allen said.
“And you do not want to accept?”
He would have been tried in December but for the Shimmel case, which Perkins wants completed first. But the coronavirus is creating more uncertainty.
“Everybody is anxious to go, I just want to make sure we can go with a 12-member jury and everything,” Bettman said. He was hoping for a December trial date., The judge discouraged him. “I hope it doesn’t get worse with the virus in January,” Bettman said. “I’m more concerned with getting a time certain,” he said. “Putting us in January is good but I want to have the feeling we’ll be first up.”
“It’s not going to be a time-date certain, ever,” the judge said.
The trial was to be prosecuted by Assistant State Attorney Jennifer Dunton, who is on maternity leave. Assistant State Attorney Mark Johnson is substituting. Johnson is also prosecuting the Shimmel case.
In Shimmel’s case, there was also an offer, but in reverse. The defense appears to be angling for an acquittal by reason of insanity, or at least argue that his mental health was not normal (though there is no middle ground in murder trials in Florida: either the defendant may be deemed insane at the time of the murder or not, though mental health factors may be introduced by either side). The defense is seeking to show that Shimmel is autistic, an approach the prosecution finds “not necessarily relevant,” according to court papers.
“Also, the Florida Supreme Court has repeatedly held that ‘diminished capacity’ or any mental health defense short of insanity is not a valid defense in this state,” the prosecution argues in a motion to be decided Friday by Perkins. The state is asserting that “any evidence concerning the alleged mental health or capacity of the defendant at any time is inadmissible.” Perkins has generally favored that approach, rather than giving the defense berth on mental health or insanity pleadings.
Rosemarie Peoples, the assistant public defender representing Shimmel, said Friday’s hearing will also determine what autopsy photos may be shown to the jury–a usually sensitive matter when the defense will seek to minimize the number of pictures, while the prosecution will seek to use what it can, given the powerful emotional impact of the images.
“Mr. Shimmel has no prior history,” Peoples said. “We have asked the state for a cap, a sentencing range of 50 years. I believe the answer to that is still no.”
“There has been discussions on both sides about possible resolution with a plea,” Johnson said. “Obviously we’re not at a place where they would like us to be, but they’re not at a place where we would like them to be either, so. The answer wasn’t a flat no. There was a counter.” Johnson described the discussions at an impasse.
“Let’s talk a little bit more about that on Friday,” Perkins said.
Some 98 potential jurors have confirmed they would attend jury selection, out of 250 summonses sent. “We’re actually running at a higher yield than we were pre-covid, believe it or not,” the judge said.
“People are tired of being home,” Johnson said.
“Just so you know, Volusia, for grand jury today, they only had 16 show up out of 75, so we’re doing good in Flagler,” Lewis said.
In jury selection, the courtroom normally accommodates up to 50 potential jurors at a time. Now it can only accommodate 25 at a time, lengthening what is already a laborious process that can stretch to two days. “It just takes longer to do everything,” Perkins said. “Be prepared for that. But we’ll do what we can do.”