Donald Smith passes on last chance to argue against death penalty

Judge says Cherish Perrywinkle's killer to be sentenced May 2

JACKSONVILLE, Fla. – Donald Smith, who was convicted last month in the rape and murder of 8-year-old Cherish Perrywinkle, declined to call any witnesses Wednesday who might help convince a judge to not to sentence him to death.

Jurors unanimously recommended the death penalty for Smith, 61, at his Feb. 22 sentencing hearing after finding him guilty of first-degree murder, sexual battery and kidnapping charges.

As the hearing began, Circuit Judge Mallory Cooper denied a motion for a new trial filed by Smith's attorneys, who then had one final opportunity to present evidence in what's called a Spencer hearing.

But Smith told Cooper that he didn't want anyone to testify or any arguments to be made on his behalf.

Prosecutors called two witnesses to read victim impact statements: an attorney who read a statement from Cherish's father, and the girl's mother, Rayne Perrywinkle, who tearfully read her statement and pointedly looked over at Smith several times.

UNCUT: Rayne Perrywinkle's victim impact statement | 
READ: Billy Jarreau victim impact statement

"I feel the pain of losing Cherish every day. It has been four years and nine months, but for me, it will always feel like yesterday," Perrywinkle said. "The devastation of losing Cherish has never left me, and it never will."

Cherish's father, Billy Jarreau, wrote that he never believed in angels until Cherish came into his life.

"Cherish was a light in my life and in the lives of so many people, and Donald Smith took that light out of this world," Jarreau wrote. "I never really believed in monsters. I do now."

After the emotional statements, Cooper, who presided over the trial, passed the sentencing hearing to 9 a.m. May 2.

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The Spencer hearing, which takes its name from the 1993 case of Spencer vs. Florida, is held so defendants facing the death penalty have the opportunity to persuade the court against it.

Donald Smith's defense attorney, Julie Schlax, shows prospective jurors photo of Cherish Perrywinkle.

It's highly unusual for a judge to go against a jury's wishes and vacate the death penalty, according to John Tanner, former State Attorney for Florida's 7th Judicial Circuit.

During his 16 years holding that office, Tanner said, prosecutors reached more than 20 death penalty verdicts. Not once did a judge overrule the jury's recommendation.

UNCUT: Judge Cooper reads jury's sentencing recommendation

Tanner did note that a judge may revisit a death sentence when there are extenuating circumstances, such as if mitigating or exculpatory information was withheld at trial, or, if the evidence was too thin.

"It would be rare," he said. "Not unheard of and not necessarily unjust, but judges have a lot of authority and discretion still. But it would be extremely rare."

About the Authors:

Veteran journalist and Emmy Award winning anchor

A Jacksonville native and proud University of North Florida alum, Francine Frazier has been with News4Jax since 2014 after spending nine years at The Florida Times-Union.