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Accused child rapist, killer back in court

Donald Smith in court to hear deposition from his mother

JACKSONVILLE, Fla. – The man accused of kidnapping, raping and killing 8-year-old Cherish Perrywinkle (pictured below) in 2013 was in court Thursday to hear his mother speak about him.

Donald Smith, whom prosecutors said befriended Perrywinkle's family at a Northside Walmart before abducting her, is still awaiting trial in Duval County.

Smith's mother, 76-year-old Patricia Moore, took the stand Thursday because prosecutors wanted to get her testimony on the record just in case she's not able to be there for Smith's actual trial, whenever that may be.

After the prosecution and defense objected to cameras in the courtroom, Judge Mallory Cooper ruled that it would be private and media wasn't allowed to film Moore's testimony.

Her remarks were recorded on a courtroom camera, which only those involved in the trial will have access to.

"It is every hope that this deposition will not have to be used as trial testimony, it will only be a deposition," Judge Mallory Cooper said, speaking about Moore's remarks. 

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Attorney Randy Reep, who's not involved in the case, said this practice, known as "perpetuating testimony," is common with the elderly and the sick. That may be why the State Attorney's Office asked for it Thursday.

"So it would be wise to capture testimony that one side or the other might feel as valuable," Reep said. "It is testimony that either side may want in the future, and they have reason to believe that the witness may not be available to them at a future date."

Reep said if Moore is available during the trial, whenever it happens, they'll have her take the stand in person.

Before the same judge Thursday, 25-year-old Randall Deviney was also in court trying to bargain information he said he has on another murder he said Smith committed.

Deviney is facing trial in the killing of a woman in 2008 and could face the death penalty. His attorney asked for that to be taken off the table in exchange for the information about another murder Deviney claimed Smith committed.

Deviney said Smith told him about the murder while the two were in jail together. But the prosecutor said he wasn't interested in bargaining.

"It is very generic and it is nothing specific other than he alleges that (Smith) killed somebody else on the Northside, an adult female, and they died between the years of 1985 and 1990," prosecutor Bernie De La Rionda said. "We have no belief that that is credible information. And even if it was, we are not interested. The bottom line is we are not interested in using Mr. Deviney in any case or giving him a plea deal."

Deviney is set to go on trial this month and Smith's trial date hasn't been scheduled yet, but he'll be back in court next month. He too faces the death penalty.