Judge grants motion to show photo of Cherish Perrywinkle to potential jurors

2-day motion hearing begins Monday, to resume Wednesday

By Frank Powers - Assignment manager, Garrett Pelican - Digital executive producer

Donald Smith in court on Monday, Jan. 22, 2018.

JACKSONVILLE, Fla. - Defense attorneys for Donald Smith will be allowed to show potential jurors a photo of Cherish Perrywinkle, the 8-year-old Jacksonville girl their client is charged with abducting, raping and killing.

A judge on Monday granted a motion filed Jan. 2 by attorney Julie Schlax, who represents Smith, to present Cherish's image during jury selection to help vet jurors before the high-profile trial, in the hopes of finding those capable of making an informed decision about Smith's fate.

On Monday, a motion that will span two days began in Smith's case. 

The judge has to rule on motions by the prosecution regarding autopsy photos and FBI enhancement of surveillance video from Walmart and Dollar General. In the Walmart video, Smith can be seen hovering around Cherish and her mother, Rayne Perrywinkle.

The defense motion for a change of venue was denied, but the judge said she could revisit it if there is a problem with jury selection.

The motion hearing will resume Wednesday. Smith's trial is set to begin Feb. 5.

Smith, 61, is charged with first-degree murder, kidnapping and capital sexual battery on a child under the age of 12 in the 2013 strangling of Cherish. He faces life in prison or the death penalty if convicted of the murder charge.

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Smith is accused of befriending Rayne Perrywinkle at a Dollar General store in June 2013 and, with promises to buy them food and clothes, persuading the family to go with him to the Walmart on Lem Turner Road.

After spending a couple of hours inside the Walmart together, Smith offered to buy hamburgers and walked with Cherish to the McDonald's at the front of the store, police said. Instead of stopping to buy food, police said, Smith walked Cherish outside and the two of them got into his van.

Rayne Perrywinkle grew suspicious when the pair did not return and dialed 911. Police later issued an Amber Alert for the 8-year-old girl that came to an end when the child's body was discovered near a tidal creek of the Trout River off Broward Road.

Around the same time, an officer working the scene of a traffic crash on Interstate 95 recognized Smith's van and called it in. Police took Smith into custody after they cornered him near where I-95 meets I-10.

Smith's trial was repeatedly put on hold due to the controversy over Florida's death penalty procedure, which the U.S. Supreme Court struck down in 2016. Last March, the Florida Legislature passed a new law requiring a unanimous recommendation from a jury before a judge could hand down the death penalty.

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