Donald Smith's attorneys want new trial in Cherish Perrywinkle murder

Smith convicted of raping, strangling 8-year-old Jacksonville girl in 2013

By Jenese Harris - Reporter/anchor, Francine Frazier - Senior web producer

JACKSONVILLE, Fla. - Lawyers for Donald Smith, who was convicted of raping and strangling an 8-year-old Jacksonville girl in 2013, want him to get a new trial.

A jury took only 12 minutes to find Smith guilty of kidnapping, capital sexual battery and first-degree murder in the death of Cherish Perrywinkle. Those same jurors unanimously agreed to recommend the death penalty for Smith.

UNCUT: Judge Cooper reads jury's sentencing recommendation | READ: Jury verdict form recommending death for Smith

Attorney Charles Fletcher cited 11 grounds in a motion for a new trial, saying Circuit Judge Mallory Cooper  made errors and that the jury did not come to the verdict fairly.

The motion, filed Monday, said the guilty verdict was “contrary to the weight of the evidence.”

READ: Donald Smith motion for new trial

Smith did not allow Fletcher or attorney Julie Schlax to put on a defense during the trial, saying he did not want Cherish's mother, Rayne Perrywinkle, cross-examined or any witnesses called to testify on his behalf.

Schlax's closing argument in the penalty phase actually commended the jury for the guilty verdict, saying they had given Cherish justice by insuring that no matter what, Smith would never leave prison alive.

In the motion for a new trial, Fletcher argued that Cooper should have granted a motion to move the trial out of Duval County and should not have allowed prosecutors to show gruesome autopsy photos of Cherish to the jury.

Fletcher said the jurors emotions were also inflamed when the medical examiner got choked up while testifying and had to request a break.

UNCUT: Medical examiner's entire testimony (Caution: Contains graphic details)

In his final argument of the penalty phase, prosecutor Mark Caliel recapped the horrific rape Cherish endured and her grisly murder, again showing the jurors the graphic autopsy photos that were displayed during the trial.

Smith, 61, took Cherish from a Jacksonville Walmart in June 2013, after he befriended her mother and offered to buy clothes for Cherish and her sisters.

He brutally raped and tortured the little girl, then wrapped something around her neck and choked the life out of her, making sure he left no witnesses, Caliel said.

After he was through with her, Smith stuffed Cherish's lifeless body under a log in a marshy, wooded area behind a neighborhood church, where she was later found by a Jacksonville Sheriff's Office K-9 team.

Smith was arrested the same day Cherish's remains were found in 2013, but repeated delays in the court system, mostly involving the death penalty, stretched for more than four years before the case finally went to trial.

The jury that convicted Smith also agreed 12-0 to recommend he be sentenced to death.

After a review process, Cooper will officially pronounce her sentence for Smith, though she is likely to follow the jury's recommendation.

Motions for new trials are routinely filed by defense lawyers after guilty verdicts. They are rarely granted.

Attorney Randy Reep, who is not connected to the Smith case, said it's unlikely Smith will get a new trial.

"In the Donald Smith case, I would suggest (the chance of a new trial) is as close to zero as anything could ever be," Reep said. "I see nothing in this that was such a grave error -- even if it was an error -- that Donald Smith should get a new trial."

Smith will be back in court March 28 for a sentencing hearing, but he will not be sentenced on that day.

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