More than seven years after an 8-year-old girl was abducted from a Jacksonville Walmart, raped and murdered, the Florida Supreme Court will hear arguments this week about whether a man sentenced to death in the slaying should receive a new trial.
The June 2013 murder of Cherish Perrywinkle drew huge amounts of news coverage and public attention in Jacksonville, with a jury in 2018 finding Donald James Smith guilty and a judge sending him to Death Row.
The Supreme Court will hear arguments Wednesday in an appeal by Smith, whose attorney contends, in part, that the trial should have been moved out of Duval County because of the heavy pretrial publicity. Attorney H. Kate Bedell wrote in a brief this year at the Supreme Court that Circuit Judge Mallory Cooper erred in denying a change of venue.
“Specifically, the pretrial publicity was so expansive that it saturated the community for years, provided a one-sided and continuous narrative leading to one conclusion at trial, Mr. Smith’s inevitable conviction, and death sentence,” the brief said.
But Senior Assistant Attorney General Charmaine Millsaps argued in a brief that Smith’s trial attorneys did not meet legal tests for a change of venue. Also, Millsaps pointed to the long period of time between the murder and the trial.
“There was over four years between this crime and jury selection,” Millsaps wrote. “Furthermore, Duval County is a large diverse county with hundreds of thousands of eligible jurors of which it is difficult to believe that twelve unbiased jurors, uninfluenced by the publicity and indifferent to, or even totally unaware of, social media posts, could not be found.”
Smith, now 64, was accused of murdering Cherish Perrywinkle after a series of events that began when he met her mother, Rayne Perrywinkle, at a Dollar General store. Smith told Rayne Perrywinkle that he would take her and her daughters shopping at a Walmart.
While at Walmart, Smith said he would buy the family cheeseburgers at a McDonald’s at the store but left with Cherish Perrywinkle in a van. He was convicted of raping and strangling the child and leaving her body in a creek.
Smith was convicted of first-degree murder, kidnapping of a victim under age 13 and sexual battery on a victim under age 12. In addition to the death sentence for the murder, he received life sentences on the kidnapping and sexual battery charges.
Smith’s appeal to the Supreme Court seeks a new trial and raises a series of issues, including arguing that the circuit judge erred by allowing autopsy photos of Cherish Perrywinkle to be used during the trial.
“Specifically, Mr. Smith argued that it would be error to admit these photographs because each was so graphic,” the brief on behalf of Smith said. “These photographs depicted a naked child with severe injuries to her vagina and anus, as well as skin removed from the front of her throat to show deep bruising around the trachea. The probative value was substantially outweighed by the prejudicial effect because, to show these images to the jury, would ‘shock’ them and ‘inflame their passions.’”
But Millsaps, in her brief to the Supreme Court, wrote that the circuit judge “properly admitted the autopsy photographs, which were relevant to establish both premeditated murder and sexual battery.” Also, she indicated any error by the circuit judge in allowing the photos to be used would have been “harmless error.”
“Smith’s DNA profile matched the DNA found on the victim’s neck and anus at one in 35 quintillion which is 35,000,000,000,000,000,000. And Smith’s DNA profile matched the semen from the victim’s vagina at one in 12 quadrillion, which is 12,000,000,000,000,000,” the senior assistant attorney general wrote. ”Furthermore, there is a videotape of the beginning of the kidnapping from Walmart’s surveillance cameras showing Smith leaving the store with Cherish and walking through the parking lot with her toward his white van. Any rational jury would have convicted Smith of kidnapping, sexual battery, and murder based on the DNA evidence and the videotape without being shown a single photograph.”
James M. Mejuto says
Here we go again, folks. Place of venue or not . . . what does it matter? This man Donald Smith should not be
on death row 8 years. Our Constitution calls for a speedy trial not 8 years !
With all the pre-trial garbage around this crime, the trial should have been moved to another part of Florida but
again, we have a Judge who embellishes notoriety.
How long would it have taken to secure a new location and gather a jury . . . 2 weeks at the most?
Lisa Schuyler says
Donald Smith is not a man, he is a hideous monster who deserves nothing! Kill the bastard already. Some people aren’t worth shit. Stop wasting money & do it already. He’ll die in a far kinder way than the hellish torture he put that beautiful child through.
Nova w says
I wouldn’t even call this disgusting excuse of a human being amen, even hell is too good for him they should have executed him the day they captured him I’m a Christian and I don’t wish ill on anybody but this demon does not belong on this Earth what he did to that poor little girl is absolutely heartbreaking in the most horrific things I could ever hear or think could be done to a poor innocent child or anybody for that matter and especially a beautiful soul that cherish was and is.
Just a thought says
Sometimes I’m on the fence about the death penalty. A case like this is what pushes me over that fence to where I wish for public executions. This man has lost all rights to breath the same oxygen we all breath, let alone the parents of that child.
Just seeing the episode about this horrific crime. This man needed the max punishment, pure evil. However will end by saying the mother of this poor girl should’ve never trusted a stranger and this happened because she did. Ive been in hard times and despair but never would I have did anything like this. My prayers are for all who truly cared for Cherish. Let’s not forget how this maniac had access to poor Cherish.