JACKSONVILLE, Fla. – A trial judge ruled to deny a motion filed by the defense team for the man accused in the 2013 kidnapping, rape and murder of 8-year-old Cherish Perrywinkle blocking jail conversations between Donald Smith and another inmate from being used in Smith's trial.
The judge ruled there's no expectation of privacy in jail, that convicted murderer Rabdall Deviney was not cooperating with the state and, in fact, did not know the conservations were being recorded.
The conversations between Smith and Deviney were recorded while the two were in adjacent cells in the Duval County jail.
Smith’s new attorney, Charles Fletcher, filed a motion to suppress the recordings, which captured 74 hours of conversations between Smith and Deviney, claiming that they were obtained unlawfully, without a warrant.
According to testimony, the device was placed June 23, 2015, eight days after Deviney’s lawyer spoke with the State Attorney’s Office, claiming Deviney had information that Donald Smith committed a prior murder, and that Deviney wanted to tell the state in exchange for the death penalty being taken off the table in his case. The state refused and declined Deviney as a witness.
A detective testified that he dressed up as a maintenance worker to place the recording equipment in the vents and that the device was removed 74 hours later.
While he awaited retrial, Deviney sent a handwritten letter to the State Attorney's Office, saying that Smith told him about a previous rape and murder that he committed, and Deviney was willing to trade that information for a lighter sentence in his murder case.
The State Attorney's Office has said it thinks Deviney was lying about another case to benefit himself. Deviney has since been reconvicted and resentenced to death for killing Delores Futrell in 2008. Smith's trial date has not been set.
Smith's attorneys argued last year that since he signed a form the day after his arrest saying that he would not speak to police, Smith should have been read his rights because Deviney “was acting as an agent of the state” because his lawyer had offered help in the case against Smith.
But the state argued Deviney was not acting as an agent because the assistant state attorney said from the beginning that he was not interested in having Deviney as a witness.
Smith's next court hearing is scheduled for October. A trial date has not yet been set because of the uncertainty over Florida's death penalty law.