It was never a strong case against Kwentel Moultrie.
The prosecution knew it long before trial, when it offered Moultrie a very lenient plea deal, down from a first degree felony charge of raping a 16-year-old girl to just child abuse, down from a maximum of 30 years in prison to five years on probation, no prison.
The defense knew it, as it pounded on vulnerabilities in the state’s case–an alleged victim who would not testify, a “star witness” who was fall-down drunk at the time of the incident, enough evidence showing consent, not forcible rape, to be a reasonable possibility.
This evening, after deliberating two hours and 40 minutes, an all-white jury of five women and one man let both sides know it. They declared themselves unable to reach a verdict. The judge declared a mistrial, a rarity in the county. It was the anticlimactic end of a three-day trial before Circuit Judge Terence Perkins at the Flagler County courthouse, including a full day devoted to jury selection.
The jury had never heard of the plea deal, which was taken off the table when Moultrie got charged with unrelated crimes last February–second degree murder and armed burglary, charges the jury under rules of evidence also never heard of.
So Moultrie’s reaction was forcibly muted: He was taken back to the Flagler County jail, where he’s been since February 25 and where he had to turn the civilian clothes he was allowed to wear during trial back in. (Defendants on trial wear civilian clothes so as not to be unfairly prejudiced by a jury seeing them in prison garb.)
Moultrie had bonded out in January 2021 after the rape charge, but was re-incarcerated last February when charged in the late December killing of Zaire Roberts during an alleged robbery in the R-Section. He remained at the jail because his bond was revoked on the rape charge, since he’d violated his pre-trial release.
Moultrie didn’t kill Roberts. But since he is accused of carrying out the robbery with co-conspirators (Roberts was one of them), Moultrie can be charged for a death resulting from an armed robbery. He faces the possibility of life in prison if found guilty on either charge in that case. He has pleaded not guilty. He is represented by Assistant Public Defender Brian Smith.
Moultrie was represented by Assistant Public Defender Regina Nunnally, who tried the case with co-counsel Assistant Public Defender Alexis Nava-Martinez.
The rape allegation dates back to a night in February 2019 at a house in Palm Coast’s P-Section, where Moultrie was invited back, along with a friend, by Emily, the alleged victim, who was staying with Olivia, a friend, at Olivia’s sister Destiny’s house. Olivia and Emily had started the night with a drinking game, gotten drunk, invited several friends over–who did not drink–went to Walmart and Steak n Shake, where Olivia was fall-down drunk and where Moultrie and a friend joined them, then back to the P-Section house for a while. All the guests were asked to leave after getting too loud. (Olivia was hiding the whole thing from her sister and her sister’s fiancee, who were asleep at the other end of the house.) But Emily asked Moultrie to come back.
He did, along with his friend. Moultrie and Emily had a sexual encounter. She subsequently claimed he’d raped her. That they had sex was never in dispute: his DNA was in Emily, and on the comforter on that bed. She had a sexual assault exam done 24 hours after the encounter. Moultrie, who first lied about it to a friend, to Olivia and to a sheriff’s detective, eventually said it was consensual
The defense’s strategy was to paint the prosecution’s case as weak and wanting from the start, pointing out that Emily never testified (she lives in the northeast) and that the state’s star witness was the incapacitated Olivia who’d thrown up repeatedly that night and did not witness the actual encounter. She only saw shapes and “hovers” and afterward tended to Emily’s concerns. The defense relentlessly exploited those doubts, closing in on the crucial reasonable doubts Nunnally needed in her final arguments to the jury–but not enough.
“You saw this little cute picture of [Emily], that’s it. Smiling,” Nunnally told the jury. “But you didn’t get to see that and observe that yourself. You didn’t get a chance to hear her voice, see her demeanor, although, according to what we’ve heard, she had a full blown forensic interview done. You did not get a chance to compare her now to her right then.”
“She starts off with my client’s testimony,” Nunnally said of Assistant State Attorney Melissa Clark, “because [Olivia]’s testimony is not strong enough to carry the day. And that, ladies and gentlemen, should tell you right now that the state has reason to doubt that this case is sexual battery.” Sexual battery is the legal term for rape.
She showed the jury a picture of Olivia passed out, in a fetal position on a bathroom floor, “totally oblivious,” a picture summing up Olivia that night as she drank, threw up, passed out. “This is the state’s start witness,” Nunnally said with indignation in her voice. “She’s covering up for [Emily].”
Nunnally asked the jury not to look at her client as “the bearded man sitting right here, but the 20-year-old Mr. Moultrie” from three years ago. She may have been trying to soften the stony edges of a client who had not made it easy for her.
Moultrie now or then did not come off particularly well when he took the stand today, answering all questions in a monotone of clipped, curt sentences, though he did not come off nearly as badly as he did in his audio-recorded interview with the detective. In that interview, he sounds dismissive of women and girls to the point of objectifying them as nothing more than things he fucks or doesn’t fuck. His language in words or texts was that callow.
If there is a warm personality in him, he never showed it on the stand, never spoke it in his interview, though he had ample reason to feel cornered during that interview: he was being served a search warrant for a mere swab of his cheeks eight months after the incident–not for drugs, not for weapons, not for evidence in a murder–yet a swarm of armed cops had invaded his property, surrounding his home, his parents, his child and his pregnant girlfriend.
The prosecution focused on the evidence it had: “We could prove what happened with the DNA evidence, the defendant’s lies, the eyewitness testimony of [Olivia],” who saw Moultrie hovering over the girl. It was clear the two girls were both drunk. It wasn’t that Olivia was an unreliable witness, but that Moultrie took advantage of a girl who was not in control of her capacities. “Moultrie was very much aware of that, he knew these two young ladies were drunk and he took advantage of that,” Clark told the jury.
Why would he lie if this was consensual, she asked. Why not just say: it was consensual. Instead he tells detectives that he had had sex with her before, but not that night. Why not? “The significance is he had sexually battered her, and he knew that,” Clark said. “If this was you hooking up with [Emily] and [Emily] was into it, why are you not just saying that to the police? Yeah, I came back. [Emily] asked me to come back. She was into it. We had sex. Wouldn’t that be a simple thing to do? Why are you lying? Because this was not consensual.”
Olivia may have been drunk, but she was “consistent” and descriptive about what she saw later that night.
And if this was a cover-up, as the defense claimed all along–a cover-up for what? “Ask yourself: what are they covering up for?” the prosecutor told the jury. The older sister at the other end of the house had no idea what had happened that night. “Not a clue.” She learned of it a day or two later at 4 a.m.–after Emily went t the hospital for a sexual assault exam. “If you’re trying to cover something up, why on earth would you put the spotlight on?”
Half an hour into deliberations, the jury had a question: “What is the law of someone under the influence of alcohol giving consent to sexual intercourse?” The question suggested that, at the least, the jury was debating consent enough to see it as a reasonable possibility, which opened the door to reasonable doubt. But just as clearly, there was also doubt about Emily’s capacities: how can a drunk 16 year old give consent?
The jury was brought back into open court and the judge addressed the question without answering it directly: “It is important you follow the law spelled out in the instruction. No other laws apply,” he told them.
The jury didn’t start deliberations until 5:55 p.m. Nearing 7:30 p.m. a bailiff asked them if they wanted dinner. They said no. It suggested they were close to a decision. They weren’t, signaling to the judge with a note, at 8:08 p.m., that they could not reach a verdict. Perkins summoned them back to court, instructed them on what they could and could not do in the circumstances–they could not, for instance, disagree about the law, only about their interpretations of the facts–and sent them back to the jury room to explore each other’s weakest points before actually declaring themselves unable to agree. A jury must be unanimous in its decision.
At 8:42 p.m., it still wasn’t. The judge summoned them back, heard from each of them that they could not reach a verdict, and declared a mistrial.