Florida Supreme Court considers whether to grant Donald Smith a new trial

Smith sentenced to death for rape and murder of 8-year-old Cherish Perrywinkle

Convicted child rapist and killer Donald Smith, appealing for a new trial
Convicted child rapist and killer Donald Smith, appealing for a new trial

TALLAHASSEE, Fla. – One of the most high-profile child murder cases in Jacksonville history is back in the headlines as an attorney representing convicted killer Donald Smith argued before the state Supreme Court on Wednesday that Smith should get a new trial.

Smith kidnapped, raped and strangled 8-year-old Cherish Perrywinkle in June 2013, taking the girl from a Jacksonville Walmart after befriending her mother at a store and offering to buy her family clothes.

RELATED: Cherish Perrywinkle: The case that shocked Jacksonville

Smith, now 64, was convicted of first-degree murder, kidnapping of a victim under age 13 and sexual battery on a victim under age 12. He was sentenced to death for the murder and received life sentences on the kidnapping and sexual battery charges.

An appeal is automatically granted for any case involving first-degree murder in Florida.

As part of that appeal, attorney Richard R. Kuritz argued on Smith’s behalf Wednesday that several errors were committed during the trial, and that those errors add up “to a reversible error” that would warrant a new trial for Smith. The errors he claimed were:

  • Comments by the prosecutor during opening statements that he said were inappropriate
  • Denial of a change of venue motion made before the trial
  • The medical examiner becoming emotional during testimony
  • Allowing graphic autopsy photographs to be shown to the jury

“I do not believe the individual issues will amount to a reversible error. I do believe, and my argument to this court, is that if you take them all together, then we have a cumulative error that would substantiate a reversal,” Kuritz said.

But Chief Justice Charles Canady seemed skeptical of Kuritz’s arguments.

“I cannot see how you piece these inadequate things together and come up with something that matters,” Canady said.

COMPLETE COVERAGE: Donald Smith’s murder trial

Canady specifically pointed to the change of venue denial, saying that both sides were able to agree on a jury, and to the argument that the medical examiner’s emotion and the graphic photographs might have prejudiced the jury.

“When you’ve got a case like this, some of these things that you’re pointing to are just almost inherent in the case,” Canady said. “It’s just the nature -- when you have an abduction, rape and murder of a young child, that’s an emotional thing. People may respond with some emotion as that is being explained to them.”

Justice John Couriel also challenged Kuritz’s argument about the prosecutor’s comment during opening statements.

Kuritz said the prosecutor violated the “golden rule” that jurors can’t be asked to put themselves in the victim’s shoes when she said: “And from the grave, she is crying out to you: ‘Donald Smith raped me. Donald Smith sodomized me. Donald Smith strangled me until my last breath in my body.’”

Couriel said it sounded like the prosecutor was simply appealing to the jury as a jury and wasn’t asking them to imagine themselves as the victim in the case.

Local defense attorney Gene Nichols, who’s not affiliated with the case, also said the statement doesn’t quite rise to the level of a “golden rule” violation.

“It was a good argument made by Mr. Smith’s counsel, but in this situation, it was not exactly a statement saying put yourself in the shoes of the victim,” Nichols explained.

Nichols said he thinks the argument questioning whether Smith got an impartial jury will receive the most focus in the case, but he believes it will be very difficult for Smith to get his original conviction overturned.

Cherish Perrywinkle

Representing the state, Senior Assistant Attorney General Charmaine Millsaps countered the defense’s arguments Wednesday, arguing that the justices can’t consider change of venue or the prosecutor’s comments because they weren’t objected to or raised during the trial.

One of the most gut-wrenching moments in Smith’s trial came when veteran Medical Examiner Valerie Rao described Cherish’s brutal rape and tortured final moments of life as she walked the jury through the graphic autopsy photos. The testimony brought some of the jurors to tears and caused the ME to ask for a brief recess.

“The state openly admits that these autopsy photographs of a heinous, atrocious and cruel murder are heinous. They are hard to look at. They’re hard to look at for lawyers who have tried these kinds of cases before,” Millsaps said Wednesday.

But she pointed out that a defense motion for a mistrial over the ME’s testimony was denied, and she argued the justices should defer to the trial judge who was in the room and could read what was happening with both the jurors and the ME and chose to deny the mistrial.

She also countered the argument that the autopsy photos should not have been allowed into evidence in the first place.

“Nothing can convey information like a photograph,” Millsaps argued. “It’s just inevitable when you have a heinous crime that the photographs of that crime are going to be heinous, but we need those heinous photographs to prove our HAC aggravator, which was found by the jury and given great weight by the trial court.”

Millsaps was referring to the requirement in death penalty cases that prosecutors convince a jury that the crime was heinous, atrocious and cruel.

She also pointed out that Smith was seen on surveillance video leaving the Walmart with Cherish and that his DNA profile matched the DNA found on Cherish.

Walmart surveillance video shows Cherish walking out front door with Donald Smith.

“There’s no error to cumulate, and even if there was … if you could find two errors, even those two errors together would be harmless in light of the evidence in this case,” Millsaps argued as she asked the justices to affirm Smith’s conviction and sentence.

The justices will consider the arguments made during the appeal and will rule at a later date.

Cherish’s mother, Rayne Perrywinkle, issued the following statement regarding Smith’s appeal:

He is where he needs to be. He needs to stay there until he’s executed. That is what he wanted. Far from the harm of other inmates. You can’t have both. I believe in the death penalty. I always have. I always will. Death should mean death. Not a life sentence. Taxpayers shouldn’t bear the responsibility of keeping these people alive. They’re not suffering. They don’t have to worry about anything but time. I think more people would support the death penalty if it didn’t have loopholes. Twenty or thirty years on death row is a joke. I appreciate the people involved to make sure execution takes place. Thank you.”

She declined to comment further after the appeal was heard Wednesday.

About the Authors: