Less than four years ago, L’Darius Smith was on trial on charges of molesting his step-sisters that could’ve sent him to prison for 30 years. He’d been accused of forcing them to masturbate him when they were younger than 10 and he was in his mid-teens. He was acquitted. The jury found him guilty only of an “unnatural and lascivious act,” a misdemeanor. He exulted.
Maybe he thought he was untouchable. But if he thought he could beat the rap again today on felony charges that could send him to prison for 10 years–and he had every reason to think so after a convincing defense by his attorney, Reginal Nunnally–he didn’t help himself.
Though at most involving third-degree felonies, the case implicated the sort of miscues and misjudgments, the sort of cultural gulfs, racially tinged provocations (the N word figured prominently: Smith is Black, the two victims are white) and reactions that take an encounter from trivial to rage in a matter of seconds, and upend lives for years. When Sheriff Rick Staly was describing earlier this week why aggravated assaults had spiked in 2020, this was a typical case he could have been referring to. Though it took place just before the pandemic, it had all the elements of the year’s sudden tempers and color-coded antagonisms. And it had a stand-your-ground defense his attorney attempted on June 11, and lost.
It also involved Smith, whose history of anger and criminal issues occupies a small segment of the court’s databases: in a pre-trial on his molestation case bailiffs had to wrestle him to the ground, and he tried headbutting one of them, because he’d disregarded directions and refused to stand up. A battery charge against him had been dropped. He still faces a burglary charge in an upcoming trial, assuming he doesn’t plead out. He’d once broken his hand for punching a wall when he couldn’t find his ID.
The jury didn’t know any of this other than the wall-punching. But it saw something else.
Smith had come to court in a turquoise t-shirt and jeans. In the culmination of Nunnally’s powerful closing to the jury, he literally put his head down on the table, turned away from the jury, and looked like he’d gone to sleep. Not for a few seconds, but for minutes. This wasn’t at the end of a long and wearisome day. It wasn’t yet 10 a.m. When Tara Libby, the Assistant State Attorney, stood up for her second and final closing, Smith stretched luxuriously as if awakening from a nap in front of the TV. Several times as Libby addressed the jury, he spoke to his attorney in a murmur loud enough for the entire courtroom to hear, gesturing and as if replaying parts of the case.
In and of themselves maybe the missteps didn’t amount to much more than a 25-year-old’s immaturities. But seen together one after the other, compounded with the gravity of the situation he faced–two aggravated assault charges in the closing hours of a trial that had empaneled a seven-person jury away from work and family–Smith’s behavior spoke blatant disrespect to the jury, the court, the prosecution and even to his own attorney. He might as well have been flipping them all off.
Juries pick up on cues like that. And it’s no small detail that the case itself hinged on precisely some of those signals: how gestures, how stares, how giving the finger may be misinterpreted and escalate into a lot more than a misunderstanding. If the evidence pushes jurors’ deliberations anywhere near a demarcation line between a felony and a misdemeanor–and they had those choices today: just like four years ago, Smith could have and probably should have walked away with misdemeanors, back to his toddler and to the child’s mother–a defendant’s behavior in court can be the just enough to nudge a jury one way or the other, because it speaks to his character, one of the intangibles that can play a disproportionate role in a verdict.
This is what led to Smith’s arrest the morning of January 21, 2020. Anthony J. Ghirelli, 64, and his brother Charles Ghirelli, 60, were at the Palm Coast McDonald’s in the Target shopping center having coffee, getting ready to go fishing. Smith and his pregnant girlfriend walked in, she to use the restroom, he to get some water. Their 1-year-old child was in their truck parked outside. Smith had a broken hand from that punch in the wall, but his hand wasn’t in a sling.
Smith was wearing a Batman jacket. Anthony loves Batman. He was once nicknamed Batman. He noticed the jacket. He complimented Smith, who was a distance away. Smith misunderstood. He thought he was being messed with, provoked. He approached the brothers belligerently and confronted them, saying–according to the brothers–that he was a trained killer, was in the military, that they shouldn’t mess with him. He then walked out. He saw them pointing at him. He took out his phone and took pictures, to document the incident in case something happened, he later said. Anthony decided to call the cops, and walked outside for better reception–directly in Smith’s direction. Smith was at his truck.
Smith’s girlfriend had also walked back out of the restroom and was walking toward Smith, who thought Anthony was messing with his girlfriend. By then Smith had grabbed a bat from his truck. He aggressively walked up to Anthony, the bat twirling at his side. He never swung the bat at Anthony, and Nunnally would make much of the difference between “twirling” and “swinging,” though anyone who’s seen a cop twirl a baton in the immediate proximity of an individual knows that the difference is a matter of visual semantics. Nevertheless, Anthony did not back up or seem that frightened, only intent on making the call. Smith got back in his truck and Anthony walked behind the truck just as Smith was pulling out. He stepped aside just enough not to be hit.
But then Smith, rather than driving away, pulled up near Anthony again, lowered his window, and flung a nickel at Anthony hard enough that it nicked him above the eye and caused an abrasion. Then he drove away. That whole confrontation was caught on silent surveillance video.
If L’Darius’s Smith’s acute defensiveness didn’t do him in that morning, when he was arrested on two aggravated assault charges after a confrontation with the two brothers three times his size and more than twice his age, his indifference or contempt today did.
The jury of three men and three women took just 25 minutes to find him guilty on one felony count of aggravated assault (he had faced two), one misdemeanor count of battery and one misdemeanor count of improper exhibition of a weapon.
Smith shook his head “yes” as the clerk read the part of the verdict that found him guilty of battery: he knew that hurling a nickel at someone else was a crime, but a crime of battery, not more. He likely knew that twirling a baseball bat in someone else’s immediate proximity was a crime, too, but thought he’d get the misdemeanor charge of improper exhibition of a weapon, not more.
He was right on the one count. But the jury bifurcated the verdict: it was improper exhibition of a weapon against Charles, who was further away during the confrontation. But it was aggravated assault when it came to Anthony, who was in Smith’s face, or vice versa. In that sense, it was an odd verdict and logically flawed verdict. Distance between subjects doesn’t determine gravity. Intent and consequences do: A man in Palm Coast could be charged with a second-degree felony for threatening someone by text in the Hammock. The same man would be charged with simple battery if he was in the other man’s face, jabbed him with his finger and called him names, as long as he didn’t threaten him.
In this case, Smith was in Anthony’s face, Charles a few steps behind, not touching either, but twirling the bat. The improper exhibition of a weapon verdict that applied to one brother should have applied to the other. But no one hears juries’ deliberations but the jurors themselves, and this jury had key elements to rely on that, in the end, may have been the deciding factor in sealing Smith’s fate: the surveillance video showed both the brothers and Smith looking for a confrontation, but only Smith with a weapon, only Smith backing up dangerously against Anthony, only Smith hurling a coin at Anthony, and only Smith driving off, what Libby, the assistant state attorney, described as “the consciousness of guilt.”
Why didn’t Charles turn around and walk back inside? He was afraid he was going to get smashed in the head with a baseball bat, Libby told the jury. “This was a show of force” by Smith. It was not an act of self-defense. “There were no threats made either to Mr. Smith, or to his girlfriend,” Libby told the jury. Even when he was on the stand testifying, Smith himself said that he had “perceived” a threat, not heard it.
“Ladies and gentleman, this is the case of a gentleman who has an anger problem, who didn’t like being looked at. He didn’t like that somebody was staring at him, and he had to confront them. He had to get the last word,” Libby said of Smith.
But Smith had no idea why one of the brothers walked out, Nunnally told the jury. “He’s hearing the N word, she heard the N word, he reacts,” Nunnally says (she being Smith’s girlfriend). The brothers are pointing at him, they’re staring at him, “yes, these gestures could be considered threats,” the assistant public defender said. Nunnally told the jury to use common sense: Anthony “didn’t come outside to call the police,” but to confront Smith. Smith lawfully grabbed the baseball bat to defend himself. It’s not an unlawful act if, Nunnally said, he believes that there was a real threat to him. She described the two brothers’ actions as a “perfect storm” of confrontational behavior.
“If you look at the video, if he wanted to hit them, he would have,” she said–not the most felicitous line of her closing, as it echoes the defense of the occasional would-be murderer: Jonathan Canales used it in court three years ago when defending himself against the accusation that he shot his girlfriend (he claimed she shot herself; he was sentenced to life in prison), and there are intimations of the same defense in the coming first-degree murder trial of Keith Johansen, who claims his wife killed herself.
Rather, Smith with the bat and his demeanor was creating distance “because he didn’t want any problem,” Nunnally said. The two brothers “claimed they were scared of him,” yet neither retreated.
When Nunnally gets going, her outrage soars, her cadences become as if metered by tympanies and her language rhymes between pulpit and street slang. She was in full form today, appealing to–if not schooling–an all-white jury’s sense of a young Black Bunnell male’s psychology.
“They say that my client was swinging the bat. You saw the video, he was not swinging the bat,” she said. “Twirling the bat and swinging the bat are two different acts. But when the police got the call, they get a call: ‘Black male swinging the bat at several people.’ Completely contradicted by the video.”
The two brothers had made much of their disabilities, one of them with an arm in a sling, walking slowly to the stand, both of them speaking of various ailments and physical challenges that Nunnally described as irrelevant in the case.
“You want to come off being feeble, the way they move in that video, they were not feeble,” she told the jury. “And that goes to show you the exaggeration people want to get away with, because they know that it was in the wrong.” Her voice began rising to preacher-level decibels: “You were wrong, you were dead wrong, you should have stayed behind in the McDonald’s, you should’ve stayed right where you are, stayed in your lane and left this man alone. But no, you want to take matters into your own hands, and now you want to complain when he reacts. Makes no sense. But that’s where we are today. And that’s real. That was real to him, and that’s why he reacted the way he did. He told you what was going through his mind. He told you, L’Darius told you, he said, Look where I’m from, that stuff don’t work. Where I’m from, that’s considered attack. Where I’m from, that’s not good. He told them he was from Bunnell. He told them that. They didn’t listen. They took him as being irate. And then imputed to him all this negativity.”
Audio Excerpt from Nunnally’s Closing
She continued: “L’Darius, 144 pounds. Anthony and Charles clearly triple his weight. L’Darius is 25 years old, trying to make sense of the world. Charles, Anthony got 120 years of experience over him, and they should know better. And probably had experiences with people talking trash to them. You mean to tell me it never happened got talked trash ever in your life, and you think that everybody’s a threat to you now, or just him? They were in the position to be the wise men. No, they decided to be childish. My client was the wise man. He walked away from them, went to his car minding his own business. Now they’re staring at him. What now? Taking out the camera. Oh, that’s threatening! Well, what they did wasn’t threatening to him. You see how it’s a double standard? No, it’s not fair, it’s not right, and that’s the reason why he’s not guilty.”
The jury disagreed.
Smith had been out on bond. Circuit Judge Terence Perkins, who presided over the trial, remanded Smith to jail for now, inviting the defense to file a motion to get him back out on bond. Sentencing is scheduled for Aug. 13 at 8:30 a.m.
The battery and improper exhibition of a weapon charges are misdemeanors. The aggravated assault conviction is a third-degree felony with a maximum penalty of five years in prison.
As he had at his trial four years ago, Smith during breaks and while the jury was deliberating had maintained his usual swagger, posing for the camera, showing the victory sign and saying to make sure he looked good. After the verdict–Nunnally was hunched over the defendant’s table–he seemed momentarily stunned, then wide-eyed, then was handcuffed. He then broken down and at one point seemed to collapse on himself in tears against the defendant’s table, speaking about how he’d “overreacted” and had a hyperthyroidism issue, how he’d been doing so well improving himself, how he was “doing good things for the community.” How he just wanted to see his daughter. Yet still, in handcuffs, he found a way to show a modest victory sign.
The bailiffs showed particular patience with him, letting him speak–the judge was still in the courtroom–and gently easing him outside, back to a jail where he’s been booked now four times since 2016.