JACKSONVILLE, Fla. – The jury deciding the fate of the man prosecutors say took the life of 8-year-old Cherish Perrywinkle in June 2013 heard the final testimony Tuesday in the case against Donald Smith, who is charged with kidnapping, sexual battery and first-degree murder in Cherish's death.
That testimony included graphic details from Medical Examiner Valerie Rao, who described Cherish's brutal rape and tortured final moments of life.
Rao walked the jury through the autopsy photos she took as she worked to determine how Cherish spent the last hours of her young life and how she was killed. Her determination was that the little girl had endured severe sexual trauma to her body before being strangled.
Rao said Cherish fought back.
The testimony brought some of the jurors to tears.
UNCUT: Medical examiner's entire testimony (Caution: Contains graphic details) |
Judge confirms with Donald Smith that he does not want to testify, defense witnesses
After about 45 minutes of trying to clinically describe the torture and murder, Rao appeared to be emotionally drained as she requested a short break.
After the jury was led out, the defense said that Rao's emotional reaction could prejudice the jurors against Smith and requested a mistrial. Prosecutors argued that Rao has spoken about the injuries before during a court hearing but that this time jurors were present, some of them crying, and it affected Rao because she is human.
Judge Mallory Cooper denied the mistrial motion.
After the break, Rao finished her testimony, describing injuries she documented to Smith's sex organ and surrounding area that she said were suffered the night Cherish died.
A DNA expert with the Florida Department of Law Enforcement then took the stand to testify about how she identified DNA found inside Cherish's body as belonging to Smith. She said the chances of it being anyone but Smith were 1 in 12 quadrillion.
Prosecutors later played a wire tap recording of Smith in which he can be heard telling another inmate that he targets 12-year-old girls.
That was their final piece of evidence before they rested their case.
The defense then said it would not be calling any witnesses and asked for a judgment of acquittal, which is typical in a trial of this kind. That motion was denied, and the defense also rested.
Cooper asked Smith if he was certain he didn't want to take the stand in his own defense, which he has a right to do. He said he did not want to testify.
As he was led out he asked his attorney if he could pose for a photo for the media cameras in the courtroom. He turned to smirk at them before he left the room.
The attorneys will make their closing arguments Wednesday before the case goes to the jury.
The first day of testimony was just as emotionally charged, as Rayne Perrywinkle, Cherish's mother, described the night Smith convinced her he was a good Samaritan who was trying to help her family out and then disappeared from a neighborhood Walmart with her daughter.
A K-9 officer later took the stand and described finding the young girl's body the next morning in a creek behind a Northside church.
Smith had been released from prison only three weeks before he was arrested in Cherish's death, the most recent of more than a dozen arrests over the last 40 years -- at least three of them resulting in convictions on sex charges. He has been on Florida's registry of sexual offenders since it was created in 2007.
If the panel finds Smith guilty, jurors will be asked by prosecutors to sentence him to death.
On Monday, Perrywinkle sat facing Smith, 61, and testified about what happened on June 21, 2013 -- the last day she saw Cherish alive.
Perrywinkle said Smith had been hovering around her and her three daughters while they shopped at a discount store earlier in the day. She was looking for clothes for all three children and could not afford it.
Smith watched as Perrywinkle tried to work out how to pay for the clothes, she testified, and when she came outside he was waiting for them and offered to take them to a nearby Walmart to buy clothes for the children with a gift card.
Perrywinkle said she was wary but accepted because Smith assured her that his wife would meet them at the Walmart.
"He looked into my face and told me I was safe," Perrywinkle said.
"Did you want to believe him?" prosecutor Mark Caliel asked.
"Very much so," Perrywinkle replied.
The mother and her three daughters piled into Smith's white van and went to a nearby Walmart. She began shopping with her girls, placing three small piles of clothing in a shopping cart.
It got late, after 10 p.m., and Smith's "wife" never appeared. Perrywinkle said her daughters were getting restless because they had not had dinner, and Smith said he would go to a McDonald's inside the store and get them cheeseburgers.
Cherish followed him as he instead walked out of the store. She was never seen alive again.
Perrywinkle said some 20 minutes later, she realized the McDonald's inside the Walmart was closed and she began to panic. Her cellphone didn't work -- a daughter had dunked it in water to try and clean it -- so she cried out for help, realizing her daughter had been taken.
"I was yelling, 'Call 911! My daughter's been taken,' and no one would help me right away," she said. About 40 minutes after her daughter disappeared, an employee gave her a cellphone, and she called 911, prosecutors said.
'No one noticed'
Surveillance footage from the store caught the image of Smith and Cherish exiting, the girl skipping out behind him.
"No one noticed. It looked like a grandfather and a granddaughter," State Attorney Melissa Nelson told the jury during her opening statement.
She said Cherish's mutilated body was later found in a creek. She'd been raped, smothered and had blunt force trauma to the back of her head. She was wearing an orange dress with a fruit pattern on it. When Smith was arrested, Nelson said, he was wet from the waist down.
Smith's defense attorney, Julie Schlax, suggested to the jury that Perrywinkle made poor decisions getting into the van. Schlax planned to cross-examine Perrywinkle, but after the mother's testimony, Smith told his attorneys not to ask her any questions. Cooper made sure Smith knew that the defense would not get a second chance to cross-examine Perrywinkle.
"I don’t want her to have to go through anything that she does not want to," Smith told Cooper.
Before his arrest for Cherish's death, Smith had a long criminal history dating back to the 1970s related to lewd and lascivious conduct. Doctors determined that he met the criteria of a violent sexual predator after arrests in 1999.
In 2009 he posed as a child welfare worker and asked a child sexually explicit questions on the telephone and was arrested on felony charges, which were later reduced to misdemeanors.
News4Jax will not only cover every moment of the trial, but will livestream the proceedings online, with the disclaimer that some graphic testimony and evidence will be presented during the trial.
The trial is expected to last three to four days, with another three to four days for the penalty phase if he is found guilty. It’s uncertain if the penalty phase would start immediately following a guilty verdict being reached.